Tag Archives: second amendment

Firearms Regulation in the Bill of Rights

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Ridicule was much used in Britain when the American colonies agitated for liberty as British subjects. Not that ridicule was the only response to American petitions and American laws–many well-informed Britons sympathized with the Americans. But among the British responses in the 1760s and 1770s, some were penned by early Charles Krauthammers and George Wills.

Take for example the commentary below by a British writer and Member of Parliament named Soame Jenyns, in 1764. Jenyns’ is not a household name today, but having been born into an affluent family, Jenyns was elected to Parliament in 1742, and used his position as a base for authorship underwritten by his cohort, the nobility and gentry. (The cronyism resembled the more recent partnership between Simon & Schuster and The Washington Post, except with inherited titles.) He ridiculed Dr. Samuel Johnson, wrote poems and essays on public policy and dancing, and was among those calling for a national militia system for Britain. In 1764, Jenyns published a pamphlet titled Objections to the Taxation of our American Colonies–meaning a reply to American objections to the proposed Stamp Act–in which he tried to defend the supremacy of Parliament over American legislatures. The rhetorical tack was ridicule. When American subjects reminded their British friends and relatives of the liberty of an Englishman, Jenyn replied,

The libery [sic] of an Englishman, is a phrase of so various a signification, having within these few years been used as a synonymous term for blasphemy, bawdy, treason, libels, strong beer, and cyder, that I shall not here presume to define its meaning;

“What is truth? said jesting Pilate, and would not stay for an answer.

Jenyns went on to his core issue, which was revenue:

but I shall venture to assert what it cannot mean; that is, an exemption from taxes imposed by the authority of the Parliament of Great Britain; nor is there any charter, that ever pretended to grant such a privilege to any colony in America; and had they granted it, it could have had no force; their charters heing [sic] derived from the Crown, and no charter from the Crown can possibly supersede the right of the whole legislature:

Descending rapidly from witty to ponderous, Jenyns then ran to cover in the legalism of “corporations”:

their charters are undoubtedly no more than those of all corporations, which impower them to make byelaws, and raise duties for the purposes of their own police, for ever subject to the superior authority of parliament; and in some of their charters, the manner of exercising these powers is specified in these express words, “according to the course of other corporations in Great-Britain”: and therefore they can have no more pretence to plead an exemption from this parliamentary authority, than any other corporation in England.

Set aside the question whether Britons considered the charters of the American colonies “no more than” the charters of “any other corporation.” Americans themselves disagreed, nor did they envision their settlements as corporations. While some of the founders such as Ben Franklin raised occasional doubts about the protections provided by charters, more colonists tried to treat the charters of the New World as their version of Magna Carta, especially as the Revolutionary War approached.

Jenyns’ pamphlet–like that of Dr. Johnson in 1775, titled Taxation No Tyranny–failed to turn the tide of history. The Stamp Act was passed in 1765; it was repealed after furor in 1766; but the central claim of parliament’s supremacy over American law remained unresolved, to put it nicely, until the American Revolution. Even Aristophanes’ ridicule failed to recall the Greeks to their senses, in the Peloponnesian War; Jenyns’ could hardly have had much effect on Great Britain, even if he had supported the right side.

The references to Jenyns above come from material left over from my book, Firearms Regulation in the Bill of Rights. I would have liked to include Jenyns’ commentary, but there was no extra space to devote to British reactions to American rights. Most of my book concerns the rights themselves. Figures like Soame Jenyns went to the cutting-room floor. With luck, historians in a future century can afford to do the same with Donald Trump and Ted Cruz.

Full disclosure: I am launching a campaign on Kickstarter to cover the costs of printing the book, today’s version of publishing ‘by subscription’ as they called it in the eighteenth century. Speaking of American rights, Trump’s supporters will hate this book. They don’t tend to take kindly to someone’s actually reading the Constitution and the Bill of Rights. They don’t love it when someone actually knows English, either.

ScreenShotKickstarter

This blog entry concerns the book, and the book is not separate from current events. That said, some things are interesting purely as history. A few examples:

  1. Eighteenth century: A copy of Charles Pinckney‘s draft of a U.S. constitution may still exist
  2. An American snark against a royalist colonial governor became part of the constitutional language of American public documents
  3. Entire artillery units in 1789 killed fewer soldiers than a single weapon today
  4. For decades, the line between newspapers and public documents was rather thin (as were the newspapers), because the press was so largely devoted to communiqué, re-publishing circulars, declarations, and public letters. In this regard, today’s newspapers have returned to eighteenth-century form.
  5. Nineteenth century: A Dred Scott judge reworded the Second Amendment in a judicial decision, to give a pass to Confederate organizing
  6. Republican Party platforms in the new party supported the rights of former slaves, immigrants, and refugees, generating several later constitutional amendments

There were some bright lights. Firebrand printers up and down the East Coast clearly saw themselves as passing on the beacon light of freedom, rights and liberties, in the Revolutionary Era. (My thanks to Eric Burns–no relation–for his observations on the remarkable high literacy rate in early America.) After 1782, they saw themselves as providing guidance for civil business in the new nation.

Naturally, much American public discourse began with British sources–the documents forming British constitutional law over centuries; legal writing like Blackstone’s Commentaries; English dictionaries; and British newspapers and other periodicals. But the history of early printing in America points to what interested the American colonists. Americans were big on print. They believed strongly in preserving a written record–a belief attacked root and branch by the Stamp Act, which was about more than money. They believed in having statements of principles reduced to writing, to which they could refer self and others.

Back before the new continent was settled by Europeans, my discussion includes historical and linguistic research in early dictionaries and other sources, from Old English through Middle English and the Renaissance (early modern), in Chapter 2.

Going forward, Chapter 5 deals with the U.S. in the nineteenth century, when the language that had been used to unite the new nation, the century before, was used to polarize it.

The project incorporates archival research into primary sources and entailed consulting hundreds of source documents including early newspapers and early dictionaries, some in the Library of Congress collections and the National Archives; some in other helpful databases like the Online Library of Liberty. Shelf-miles of rich historical material are now accessible on site and remotely, but no other book has been written on this subject, with the same parameters (sources, range), using modern corpus methods to explore the large text repositories.

The book is interdisciplinary, or course. In spite of some specialized language (at times), it is written for educated lay readers as well as for historians and legal scholars; for constitutional scholars, jurists, and a general audience.

–And speaking of leftover material: I have not yet written the Afterword. I have to decide whether to include a recent comment by a federal judge, that the word “arms” is plural. (Does he cut a piece of paper with one scissor? Have his friends asked him whether he puts on his pant one leg at a time? The word can be plural, of course; it is also singular.)

One statement I do plan to put in the Afterword is something along the line of ‘This entire book is a series of footnotes to John Phillip Reid’s Constitutional History of the American Revolution.

 

Well-regulated, part 3

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Well-regulated, part 3

Following up on the two previous posts–

As written earlier, as often as we hear about “the second amendment” in the public discourse, we seldom hear the phrase “well regulated.” The first is a slogan for banners and bumper stickers; the second is being obliterated. But the framers of the constitution included that phrase well regulated in the second amendment because it was paramount. It involved among other things two attributes much prized–wisdom, and energy. In those pre-Nietzschean times, after all, wisdom was considered manly. Wisdom and prudence in fact were considered masculine attributes–a perspective often reversed today by a triad of corporatism, media consolation, and consumerism pushing the line that they are qualities we teach women and children. Two sides of the same sexist coin, of course; but the immediate point is the dishonesty of gun lobbyists who hide behind the second amendment even while they and their allies work full-time to make “regulation” a dirty word in every context including children’s toys.

 

Straight to the mouth

Nobody says it, but a phrase like “take up arms” itself implies well-regulated. As Clinton L. Rossiter writes in Seedtime of the Republic: the origin of the American tradition of political liberty (1954), the Cincinnatus ideal ruled: “No army of mercenaries could ever fight as bravely or successfully as a ‘well-regulated militia’ defending hearth and home.” The ability to take up arms was linked inextricably with the willingness to put them down. As such, it was the best alternative to, and antidote against, “the inherent danger of standing or ‘mercenary’ armies, ‘a tremendous curse to a state’ and ‘the scourge of mankind'” in sources quoted from the Revolutionary period.

 

Working from home

This historical perspective yields little justification for freely arming every disgruntled ex-employee or newly separated father engaged in a custody dispute or wishing to avoid alimony and child support, let alone every meth-head, gang member and cartel associate. As Josiah Quincy, Jr., wrote in 1774,

“No free government was ever founded or ever preserved it’s [sic] liberty without uniting the characters of citizen and soldier in those destined for defence of the state. The sword should never be in the hands of any, but those who have an interest in the safety of the community . . .”   [emphasis added]

Examples of persons depended upon to be well regulated included “freeholders, citizen and husbandman” (Quincy); the government (“Pacificus,” pseud.); and “the publick” and “the collective body of the state” (Samuel West, 1776). Examples of people and entities who could not be depended upon to be well regulated included “a strong military power in the very heart of their country” and “the power of soldiers” (Samuel Adams); “the supreme magistrate and his creatures” and “every thing of a factious nature and complexion” (‘Pacificus’); “rulers” (West); “unjust and unlawful force” (“John Locke,” pseud.); “a few disaffected individuals” (West); and “oppressive officers” (Thomas Jefferson). [Quoted in Rossiter]

In short, well-regulated meant democratic (and republican); unregulated meant anti-democratic. All the individual liberties supported by Jefferson in Virginia before the Declaration of Independence–including Habeas Corpus, the right to a fair trial, and freedom of the press–had the same fundamental aim of regulating those who would insolently go overboard in oppressing others:

“These are the invaluable rights, that form a considerable part of our mild system of government; that, sending its equitably energy through all ranks and classes of men, defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the violent, the tenants from the lords, and all from their superiors.”

Part of the picture here is that the founders liked to see things done well rather than badly. As with well regulated currency, it was all rather like having your heart keep pumping and your blood circulating, to which the sweet air of freedom conduced. Even getting rid of a tyrant was supposed to be done well, rather than badly; as in John Milton’s epic narrative there was payback even for getting rid of an alleged tyrant poorly or for wrong motives. Thus the arbitrary, the irrational, the selfish all fell into the bad column; peaceableness, reason and looking out for others fell into the good column. Quoting Rossiter again,

“Resistance in the extreme sense of outright revolution–the “appeal to God by the sword,” as the Colony of New Hampshire labeled it–was never to be undertaken except by an overwhelming majority of a thoroughly abused people. There was no place in Revolutionary theory for the coup d’etat of a militant minority dedicated to the building of a new order. Samuel West expressed this thought in his election sermon of 1776:

‘If it be asked, who are the proper judges to determine, when rulers are guilty of tyranny and   oppression? I answer, the publick; not a few disaffected individuals, but the collective body of the state must decide this question.'”

The well-regulated was meaningful. The meaningless was anathema, including meaningless selfishness. Hence it goes without saying that revolution for its own sake was no democratic ideal for American colonists:

“Finally, all colonial writers agreed with Jefferson’s assumption that any exercise of “the Right of the People to alter or to abolish” government would be followed almost immediately by an exercise of their associated right “to institute new Government.” For all their flirtation with the state of nature, for all their loyalty to the mechanistic explanation of government, Americans could think of man only as a member of a political community. Men did not revolt against government to eliminate it entirely and return to a state of nature, but to organize a new one, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” God granted men the right of resistance to help them preserve orderly constitutional government, not to induce them to fly from the tyranny of arbitrary power to the tyranny of no power at all.”

The lessons of history are many, and mixed. But adhering to principle is not cherry-picking.

“Well regulated,” part 2: Strict constructionism means paid lobbyists?

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“Well regulated,” part 2: Strict constructionism means paid lobbyists?

Picking up where the previous post left off–

“Well regulated” was praise in this country at the time America was born. For eighteenth-century American colonists, well-regulated was everything the ridiculous Georges on the English throne were not. The Swiftian, satire-worthy courts under the British kings were repudiated in the law courts of the new United States, regulated rather than bought, in check rather than ruled by fear or favor. In the new country–or this was the aim–the king as sovereign in every courtroom was replaced by the people, sovereign in every courtroom. Neither judges nor testimony were to be either bought, or coerced. Unlike the English court, where according to reputation anything and anyone could be bought for a price or pushed around if not, in America no private citizen or public official, however understandable his motivations, was to impose his will unjustly on others by force or fraud. “Well regulated” was encomium, but it was more than just a compliment; it was the antidote to force and fraud, the two basic forms of all injustice according to Aristotle, Aquinas, Dante, Milton and the founders. “Well regulated” was the widely applied tag, applied especially to everything self-evidently in need of regulation–militias, governments, the passions of men; taverns, society, commerce. “Well regulated” incontrovertibly applied to individuals as well as to groups, self-governance being as important a principle as governance res publica.

 

Assault firepower

Funny how the gun nuts and their well-paid users on K Street always represent ‘regulation’ as the enemy. But then, our highly paid lobbyists and the politicians in their pockets–former politicians and future lobbyists, respectively–are no constitutional purists. You never see them out rallying against a standing army in peacetime, and in fact they tend to distance themselves from the diehards places like in rural Idaho who do oppose government military. Since they are to a man either Republicans or ‘blue dog’ Democrats committed to the wedge issues of McCarthyism, racism, and bloodshed-ism, you seldom see them even refer to  waste, fraud and abuse in the military-security-industrial complex. The last people to go to about billions in cost overruns by federal contractors are the protectors of quiet super-wealth masquerading as rugged-individualist loudmouths. Currently they do not even mouth off about foreign ownership of U.S. assets, a topic one might think tailor-made for the more-chauvinist-than-thou types.

It will be noted that the massive contradiction to the high principle outlined in the first paragraph above was slavery. Enslaved people did not, to put it nicely, have the full protection of the law and courts created by their enslavers. Predictably, this hideous part of U.S. history also gets exploited by K Street (name used here as metonymy). The gun lobby often reaches out to selected individuals of color, to be part of ‘the new face of gun rights’. The individuals thus selected often get their statements into print or on air, too, on the journalistic basis of man-bites-dog: After all, historically excluded groups have not benefited from the abuses of the weapons industry, so members speaking on its behalf tend to be exceptions. By the same token, the indigenous peoples of the new continent also did not enjoy equal protection under the law in colonial times, nor did women, nor did children, so the gun lobby has its female reps–although even the NRA has yet to argue that children should have the right to concealed carry. Interestingly, you also don’t see the NRA arguing that Native Americans should be carrying semi-automatics, although as with foreign ownership of American property, the topic might seem inviting; Native Americans with their bows and arrows were by all historical accounts ill-matched against the industrial advances of the Europeans. Perhaps for some reason the NRA is uncomfortable with the notion of standing up for primitive societies and indigenous peoples around the globe. Or perhaps defending American Indians just does not comport well with that cowboy image the gun lobby tries to project.

 

Guns Across the Border

UPDATE April 30–This just in:

This cannot be coincidence. The gun fanatics are running a billboard featuring Native Americans. Not subtle: A picture of three Native Americans in tribal dress is captioned in giant letters, top and bottom, TURN IN YOUR ARMS and THE GOVERNMENT WILL TAKE CARE OF YOU.

Native Americans targeted by gun fanatics

Are the NRA or its zombies reading this blog? I refuse to say, “I spoke too soon.”

[back to original post]

Speaking of cartoons, cowboys, and borders–

There is more than one falsehood in the ‘2nd Amendment’ catchphrase. Using the U.S. Constitution to justify military-style assault weapons is bogus, and there is more than one way to point it out. The following are a few:

  • One of the most blatant incongruities is NRA opposition even to sensible policy to reduce shipping arms to drug cartels and gangs in Mexico. Mexican drug cartels have a constitutional right to bear American guns? For reminder, the Bureau of Alcohol, Tobacco, Firearms, and Explosives revealed in 2012 that 68,000 guns traced in Mexico from 2007 to 2011 had been traced to the U.S. The ATF report is linked here.
  • The NRA has continued to oppose any move to keep guns off airline flights, although public opinion lopsidedly supports keeping guns off planes. In late 2011, Transportation Security Administration (TSA) security had found 800 firearms about to be carried on board during the year.
  • The NRA and gun extremists continue to oppose registration, licensing and tracing of firearms even while firearms continue to play a big part in the drug trade. There is a constitutional right to trade weapons for drugs? There is a constitutional right to conceal weapons sold  in drug commerce? Even while U.S. courts are prosecuting the drug trade and narco-terrorism, and are being funded by the public to do so?

Two final observations, quickly:

One is that the gun lobby’s opposition to common sense is itself opposition to the constitution. Our framers had a rooted belief in not putting unlimited power into human hands, any human hands. They knew the dangers too well. The entire U.S. Constitution embodies that belief. In respect to arms in particular, there are no statements of record legitimizing military-grade arsenals for individuals in peacetime.

The other is that, ludicrous as the above examples are, the gun lobby goes well beyond opposing particular (sensible) policies on firearms. In U.S. gun violence, some of the worst problems and many of the deaths occur in connection with 1) domestic disputes, 2) alcohol or other substance abuse, 3) depression or mental illness, and 4) crime. In U.S. politics, the gun lobby effectively overlaps with the Republican Party. What that means in practical terms is that

  • measures to protect women from domestic violence will always get opposed. The NRA, as we have seen, is all hot to trot on a disturbed man’s right to bear arms and shoot his wife or girlfriend, and children. GOP honchos, as we have seen, are always against better rules and enforcement on grounds of either ‘socialism’ or ‘higher taxes’. The taxes pay for the courts that issue restraining orders, for the child support agencies that supposedly enforce supporting children, and for law enforcement for follow-up to court orders. Thus the tragic finale of gun violence to so many domestic disputes.
  • by the same token, measures to protect children and minors, to try to maximize their chances of growing up safely to adulthood, will always get opposed. The NRA is less than zealous to keep guns out of the hands of minors–even when minors are used to run guns for gangs, for cartels, and for narco-terrorism. The GOP displays the same attitude toward safe schools, in general, that it displays toward safe homes, safe child-care facilities, and safe consumer products.
  • for the same reasons, mental health always gets short-changed.
  • crime prevention always gets short-changed.

 

Meanwhile, K Street–to use the popular eponym again–works overtime behind the scenes, to short-change the public and to justify short-changing the public.

Well regulated currency

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Well regulated currency

The ordinariness of “well regulated” in eighteenth-century America

The following is a quick, representative list of American newspapers before and after the Revolutionary War explicitly recommending, or reminding of the need for, a “well regulated currency”:

  • New England Weekly Journal (Boston, Mass.) February 4, 1734. Issue CCCLVIII, page 1. “Money well regulated and established is the measure of all other things.”
  • Boston Gazette, or Weekly Journal. June 4, 1751. Issue 1629, page 1. A “fixed invariable currency” is linked to “well regulated” trade.
  • Boston Evening Post. January 4, 1762. Issue 1375, page 2. Brief historical argument says a well-regulated currency was one of the goals of the court (American) since 1650. The same piece goes on to say, pointedly, that “they were under no great fears of offending the government in England” in so moving.
  • The New-London (Connecticut) Gazette. March 8, 1771. Vol. VIII, issue 382, page 1. A well regulated currency is contrasted to the evils of counterfeit.
  • The Providence (Rhode Island) Gazette and Country Journal. August 25, 1787. Vol. XXIV, issue 1234, page 2. Also contrasts well regulated currency with counterfeit.
  • New York Daily Advertiser. March 19, 1819. Vol. II, issue 601, page 2. Declaims on “well regulated currency,” brings in “Asiatic countries.”
  • Richmond (Virginia) Enquirer. December 5, 1833. Vol. XXX, issue 61, page 2. Importance of a safe and well regulated currency.
  • Richmond Enquirer. Dec. 27, 1833. Vol. XXX, issue 70, page 4. Same.

 

Currency issued by Massachusetts

It is in this light that the words of the Second Amendment should be read: “A well regulated militia, being necessary to the security of a free state . . .” The founders knew that an ersatz, inconsistent, unregulated version of money would destroy a nation’s economy.

 

North Carolina scrip

There should be little surprise here: Currency aside, a quick search of American newspapers around the time of the Revolutionary War shows the wide popularity of the term “well regulated.” Far from being archival or fine print, the phrase was as ubiquitous in the federal period as it is lacking in the public discourse of our time. It was as emphasized in the American states of the eighteenth century as it is submerged today. To call something well regulated–commerce, currency, a militia–was praise, but it was more than merely praise; it was a much-used trope, a common-sense reminder, an exhortation that such-and-such was needed in order to bring us to that fundamental equilibrium, that bedrock stability and protection of being well regulated.

 

Signs of the times

Probably the praise was bestowed more often than it was deserved; a real estate advertisement in a couple of 1763 New York papers mentions a nearby “well regulated” tannery, and other real estate listings refer to farms and other property as well regulated. “A well regulated theatre” justified either the existence of playhouses or some types of control of same in newspapers from Charleston, S. C., to Boston, in the 1780’s and 1790’s. But it was over-bestowed because it was high praise. Thus one prominent preacher was eulogized as having a “well regulated zeal” for the Deity, among other virtues.

It would be oversimplification to read this as a convenient top-down invitation to knuckle under. For one thing, the emphasis was on voluntary virtue, not regulation by others; on social self-restraint as a recognition of an ancient and rational distinction of meum and tuum linking individuals in a just society, not setting one against everyone else.

For another thing, it was often used in pre-Revolutionary reminders to the English king. Thus we get pointed mentions of “a well regulated monarchy” in The Providence Gazette of Nov. 1, 1766; “a well regulated state” in the Aug. 24, 1767, Boston Gazette; and “well regulated laws” in the Oct. 30, 1767, Connecticut Journal. These are bottom-up, not top-down. The reminders do not tend to get less forceful as 1776 draws nearer. References to “a well regulated state” in Boston papers of January 1773 oppose the well regulated to tyrannous acts. The Connecticut Journal, again, of Feb. 4, 1774, opposes “a well regulated society” to favoritism (by the English government) that results in “impunity” for serious offenders. The New London, Conn., Gazette of March 31, 1775, opposes “a well regulated city” to martial law (and quartering of troops). The common denominator here is the distinction between tyranny and the well regulated. Being well regulated is not the hallmark of tyranny; quite the contrary.

As with ‘well regulated’ theaters, schools, cities, states, societies, currency, commerce, emotions, and even thermometers, militias were also frequently referred to as “well regulated” in the argot of the time.

Not that they started that way. The earliest mentions of ‘militia’ in American newspapers occurred in 1704, never in conjunction with ‘well regulated’ or any other kind of ‘regulated’. But then they were all foreign. The ten references to a militia in 1704–when apparently the word became fashionable in reporting–all pertain to armed forces deployed in service to the crowned heads of Europe. None are colonial forces in the New World. As those bruisers at the Oxford English Dictionary remind us, the very term militia in the modern sense was relatively new in the eighteenth century. Its modern meaning was codified in a dictionary, Phillips’s New World of Words, only in 1706: 

“Militia, a certain Number of the Inhabitants of the City and Country formed into Regular Bodies, and train’d up in the Art of War, for the Defence and Security of the Kingdom.”

This sense of the term remained constant up through the time of Adam Smith, in his famous Inquiry into the Wealth of Nations in 1776:

“It [the state] may . . . oblige either all the citizens of the military age, or a certain number of them, to join in some measure the trade of a soldier to whatever other trade or profession they may happen to carry on… Its military force is [then] said to consist in a militia.” (II. v. i. 300, quoted in O.E.D.)

After the term militia came into vogue, the term well regulated militia got to be thick on the ground in American print. Only partly was it a defense and justification, to the English governors, for having local troops. It was more an accurate reflection of the way sensible, self-directed people in the American Colonies would have felt, from early on, about an unregulated assortment of pseudo-soldiers, the mentally ill or drunk, or self-promoting chiselers, armed to the teeth with military-style hardware.

More later