By Matt Higgins
Whenever a horrific event like the San Bernardino mass shooting occurs, the refrain from gun rights advocates is to discount new laws or any type of gun control measure, arguing that gun control is antithetical to the traditions of the United States.
This libertarian individualist view, however, is contrary to the historical context of the Second Amendment and gun control laws throughout U.S history. It is a product of modern conservative ideology that fanatically distrusts the federal government while embracing the de facto reality of racial segregation.
The Second Amendment includes the introductory clause, “A well-regulated militia.” The militia’s role in colonial America was to defend the individual colonies. This could be from Native American attacks, slave uprisings or in conjunction with British forces in their wars with France in the 18th century.
In the American Revolution, individual colonies called upon militia members to fight the British and, upon victory, many wanted to keep the militias in order to protect states’ rights. Those who supported maintaining the militia after the war wanted to do so as a check on federal power. There was no standing army, which was intentional because Americans’ experience with British troops leading up to and during the Revolutionary War.
Colonial and American laws were influenced by the 18th century English jurist William Blackstone, including his writings about the right to self-defense. Blackstone wrote that humanity has a natural right to self-defense but he also acknowledged that the right to self-defense is tempered.
He stated, “the person who kills another in his own defense should have retreated as far as he conveniently or safely can.” (This is a legal interpretation that is completely contradictory to the current “Stand Your Ground” laws.)
Even Anti-Federalists like William Findley – or those who opposed ratifying the Constitution because it granted too much power to the federal government – opposed individuals taking up arms outside of militia duties.
In response to the Whiskey Rebellion of 1794, Findley stated, “All men of discretion if they permitted government to be violently opposed even in the execution of an obnoxious law, the same spirit would naturally lead to the destruction of all security and order.”
As the nation expanded west to the Mississippi after the Louisiana Purchase, new states enacted their own laws. Some included making the concealment of a weapon a crime. In 1813, Louisiana passed such a law. In 1840, the Tennessee Supreme Court upheld a state law that banned concealed weapons like Bowie knives on the legal basis that while an individual had a right to keep and bear arms, it was in only as a part of his duty in the state militia. The court concluded that there was nothing in the state’s or U.S. Constitution that prohibited Tennessee from banning weapons not for military use.
Immediately following the Civil War, Southern states sought to restrict rights for newly liberated African-Americans, including the right to keep and bear arms. Some blacks in Southern states were then members of state militias. Military authorities in control of the states suspended the laws but left open the door for gun control as long as it was not discriminatory against one group.
By 1920, the U.S. became a majority urban nation for the first time. Four years earlier, Congress created the National Guard, replacing the state militias. During the 1920s major cities, like Chicago, were plagued by violence resulting from organized crime during Prohibition. The Tommy gun became the notorious iconic symbol of the era.
The federal government responded to the epidemic of violence and, in 1934, passed the National Firearms Act. The act required certain guns like Tommy guns to be registered with the federal government and by manufacturers and dealers.
In 1968, after the assassinations of Martin Luther King and Robert Kennedy, Congress passed the Gun Control Act of 1968. A provision of the law prohibited mail-order gun sales, something the National Rifle Association supported at the time.
The once solidly Democratic South began to crumble. A majority in states like Louisiana voted for George Wallace in the 1968 presidential election. Not since 1996 has a Democratic candidate for president won Louisiana.
The 1960s saw continued white flight from cities into suburbs, as well as the increase in violent crime in many communities. Many white suburbanites began to view the violence in the cities as something outside of their community. Yet, with the end of legal racial segregation, these white suburbanites feared that those from the inner cities would settle in their communities. Couple that fear with a distrust of the federal government by conservative whites in the post-civil rights era, a large segment of the American population was receptive to the new tone of the National Rifle Association.
The NRA only began its intense lobbying efforts to kill any federal or state gun control laws in the late 1970s. From then to today, that lobbying has been so successful that many opponents of gun control use the Second Amendment in their arguments to stop sales of military weapons like AK-47s and to argue in favor of individual liberty regarding carrying guns in public.
The U.S. judicial system has never interpreted the Second Amendment as preventing the any type of gun control in the U.S., even when it strikes down laws regarding gun control. The reason for the absence of federal gun control is inaction by a Congress that fears the NRA more than any other lobbying group.
Fortunately, changing Congress is much easier than amending the Constitution.
Recognizing the complex history of the right to bear arms in America does not make one hostile to any form of gun ownership. However, failing to recognize that the right to bear arms refers to more than just an individual right is antithetical to the ideals mentioned in the preamble of the Constitution.
Matt Higgins is an assistant professor of History at SUNO and a freelance journalist. He taught in the Jefferson Parish Public School System for four years.