The Second Amendment Hoax
How the NRA and conservatives have perverted the meaning of the right to bear arms.
As Scalia himself noted, “the right secured by the Second Amendment is not unlimited.”
Above, Scalia at the American Enterprise Institute, Oct. 2, 2012 in Washington, D.C. Alex Wong/Getty Images
Sunday night, when my son asked me why we shoot each other dead almost every day in America, I got to tell him that it’s because we are “free.” We are free to get a .223 caliber AR-15–style
semi-automatic rifle and a 9mm handgun. And we are free to sell those weapons to someone who might shoot and kill 49 people in a nightclub because of whom they choose to love. We are free to arm ourselves against any potentially tyrannical federal government and also free to watch our children bleed to death in our schools, and churches, and clubs.
And we are free to do it all again tomorrow and the day after that. We are free to feel paralyzed and trapped in a system that is literally killing us.
Freedom in America also means that we are free to wake up every morning hoping that it’s not our kid who gets shot with a weapon of war, and free to wake up hoping it’s not our kid who shoots someone, and free to wake up praying it’s not our kid, or our spouse, or our neighbor who shoots herself. In this freest country on earth, we also happen to be in a perpetual hostage situation, in which one false move—or merely the choice to go to class, or to dance with friends—means you may wind up dead.
|Mourners gather after the Orlando massacre. Jim Carchidi|
What does all this have to do with freedom? Well the document that promises and protects our freedom has been interpreted to say that we are all condemned to live out our days in terror, hostage to powerful interests who urge us to become ever more free by purchasing and stockpiling ever more lethal weapons of war. Perhaps nobody so perfectly captured this twisted definition of freedom as former Republican presidential candidate Ben Carson, who in the wake of yet another round of futile debates about gun rights last fall said this: “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.” Indeed.
This is where I tell you that the current interpretation of the Second Amendment—the one held onto by Carson, and Donald Trump, and practically the entire Republican Party—is a hoax. Outside of the GOP, this is widely understood. But what we fail to comprehend, as we bury more of our dead in the name of freedom, is that it is a triple-decker hoax: A lie wrapped in a fabrication, lacquered over with a falsehood. That we chose to wrap it around our necks as a symbol of our own liberty is our own fault and shame.
The Second Amendment to the Constitution says this: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
For most of U.S. history, that was understood to mean that the freedom guaranteed by the Second Amendment was precisely what it said: the right of the people of each state to maintain a well-regulated militia.
|Why was this picture included? You figure it out.|
So clearly and unequivocally held was this worldview that no less a liberal squish than Richard Nixon Supreme Court appointee Warren Burger said after his retirement in 1991 that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” This reading was based on precedent. The Supreme Court had clearly agreed with Burger’s interpretation and not that of the special interest groups he chastised, perhaps most famously in a 1939 case called U.S. v. Miller.
That ruling said that since the possession or use of a “shotgun having a barrel of less than eighteen inches in length” had no reasonable relationship to the “preservation or efficiency of a well regulated militia,” the court simply could not find that the Second Amendment guaranteed “the right to keep and bear such an instrument.” Period, full stop. And that was the viewpoint adopted by the courts for years.
What changed? As Cass Sunstein and others have explained, what changed things was a decades-long effort by exceptionally well-organized, well-funded interest groups that included the National Rifle Association—all of whom “embarked on an extraordinary campaign to convince the public, and eventually the courts, to understand the Second Amendment in their preferred way.” It’s rather miraculous, if you stop to think about it: In a few short decades the NRA’s view of the Second Amendment became the law of the land. By 2008, writing the majority opinion for the Supreme Court in District of Columbia et al. v. Heller, Antonin Scalia enshrined this view for first time that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
That the Heller court itself qualified that right in multiple ways—and that in the years since Heller, the court has declined one important gun case after another—doesn’t change the fact that the hoax is now the law. On top of everything, most Americans believe by rather huge margins that the concededly ambiguous wording of the Second Amendment means that individuals have the constitutional right to bear arms, even if they don’t want it. According to a recent NRA poll, when asked if “[e]very American has a fundamental right to self-defense and a right to choose the home defense firearm that is best for them,” 76 percent of respondents said “yes.”
|Seven-year-old Abby, pictured, from Kentucky says she is afraid of both zombies and burglars|
But that is only the crunchy bottom layer of the fraud. The larger fabrication is the idea that the Second Amendment—unlike other provisions of the Constitution—cannot be subject to any reasonable restriction. As my friend Sonja West pointed out in Slate after another mass shooting late last year, we impose limits, caveats, and conditions on many provisions of the Constitution without crying tyranny:
We have the constitutionally protected right to peaceably assemble, but not to block traffic. We are protected from unreasonable and unwarranted searches, unless there is probable cause, exigent circumstances, or a hot pursuit. If charged with a crime, we have the right to a speedy trial (but not if the prosecution is hunting down witnesses) and also a public one (but not if you want your trial televised). We also have the right to a trial by jury (unless the crime carries a sentences of six months or less).
Constitutional rights are subject to every sort of condition and limitation, and as Scalia himself noted in Heller, “the right secured by the Second Amendment is not unlimited.” He even went on to list some reasonable limits.
The second hoax—that the right to bear arms is not merely an individual right but also that it is the only constitutional right subject to zero regulation—makes no sense on its face, until and unless you are willing to fall prey to the third fraud.
Hoax number three: Obama, Clinton, Democrats, liberals, the media, whomever are coming for your guns. They are Coming. For your Guns!!! This is the crunchy candy shell that makes the other two lies seem almost reasonable. Of course you should have an inviolate individual right to defend yourself against a tyrannical federal government if you have persuaded yourself that the federal government is indeed tyrannical. This is the big lie that continues to be broadcast and pushed out ad nauseam, and no amount of fact-checking or direct confrontation with accusers makes a whit of difference. The NRA wanted us to feel that only our guns would make us free, and they have prevailed.
That is, of course the paradox. We are in thrall to a fib of epic proportions that itself relies on two other lies. And because we are captive to all these lies, we are also captive to the notion that as much as we wish someone would do something about all the innocent dead people, our hands are tied by the freedom-affording gift that is the Second Amendment. It is a sick joke of our democracy that after every mass shooting we must tell our children that the Framers gave us this precious gift of liberty, more valuable than their lives, and that we are stuck with it. This is the opposite of freedom. It is slavery by choice.
Speaking of slavery…
|What, exactly, is the purpose of a militia? source|
The Second Amendment was Ratified to Preserve Slavery
The real reason the Second Amendment was ratified, and why it says "State" instead of "Country" (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.
In the beginning, there were the militias. In the South, they were also called the "slave patrols," and they were regulated by the states.
In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.
As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."
It's the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, "Why don't they just rise up and kill the whites?" If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.
Sally E. Haden, in her book Slave Patrols: Law and Violence in Virginia and the Carolinas, notes that, "Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller." There were exemptions so "men in critical professions" like judges, legislators and students could stay at their work. Generally, though, she documents how most southern men between ages 18 and 45 - including physicians and ministers - had to serve on slave patrol in the militia at one time or another in their lives.
And slave rebellions were keeping the slave patrols busy.
|The slave patrols (1704-1865) in the American South were armed bands of three to six white men on horseback who rode through the night looking for runaway slaves and other blacks "up to no good."|
By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down slave uprisings. As Dr. Bogus points out, slavery can only exist in the context of a police state, and the enforcement of that police state was the explicit job of the militias.
If the anti-slavery folks in the North had figured out a way to disband - or even move out of the state - those southern militias, the police state of the South would collapse. And, similarly, if the North were to invite into military service the slaves of the South, then they could be emancipated, which would collapse the institution of slavery, and the southern economic and social systems, altogether.
These two possibilities worried southerners like James Monroe, George Mason (who owned over 300 slaves) and the southern Christian evangelical, Patrick Henry (who opposed slavery on principle, but also opposed freeing slaves).
Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise a militia, could also allow that federal militia to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free the slaves.
This was not an imagined threat. Famously, 12 years earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered freedom to slaves who could escape and join his forces. "Liberty to Slaves" was stitched onto their jacket pocket flaps. During the War, British General Henry Clinton extended the practice in 1779. And numerous freed slaves served in General Washington's army.
Thus, southern legislators and plantation owners lived not just in fear of their own slaves rebelling, but also in fear that their slaves could be emancipated through military service.
At the ratifying convention in Virginia in 1788, Henry laid it out:
"Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. . . .
"By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither . . . this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory."
George Mason expressed a similar fear:
"The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution] . . . "
Henry then bluntly laid it out:
"If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia."
And why was that such a concern for Patrick Henry?
"In this state," he said, "there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States. . . . May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free."
Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias.
He knew the majority attitude in the North opposed slavery, and he worried they'd use the Constitution to free the South's slaves (a process then called "Manumission").
The abolitionists would, he was certain, use that power (and, ironically, this is pretty much what Abraham Lincoln ended up doing):
"[T]hey will search that paper [the Constitution], and see if they have power of manumission," said Henry. "And have they not, sir? Have they not power to provide for the general defence and welfare?
May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?
"This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it."
He added: "This is a local matter, and I can see no propriety in subjecting it to Congress."
|James Madison’s face was on the $5,000 bill, which is no longer used, but was printed and circulated at one time.|
James Madison, the "Father of the Constitution" and a slaveholder himself, basically called Patrick Henry paranoid.
"I was struck with surprise," Madison said, "when I heard him express himself alarmed with respect to the emancipation of slaves. . . . There is no power to warrant it, in that paper [the Constitution]. If there be, I know it not."
But the southern fears wouldn't go away.
Patrick Henry even argued that southerner's "property" (slaves) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:
"In this situation," Henry said to Madison, "I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone."
So Madison, who had (at Jefferson's insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.
His first draft for what became the Second Amendment had said: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word "country" to the word "state," and redrafted the Second Amendment into today's form:
"A well regulated Militia, being necessary to the security of a free State [emphasis mine], the right of the people to keep and bear Arms, shall not be infringed."
Little did Madison realize that one day in the future weapons-manufacturing corporations, newly defined as "persons" by a Supreme Court some have called dysfunctional, would use his slave patrol militia amendment to protect their "right" to manufacture and sell assault weapons used to murder schoolchildren.
About author Thom Hartmann is a Project Censored Award-winning best-selling author, and host of a nationally syndicated daily progressive talk show carried on the Air America Radio network and Sirius. www.thomhartmann.com His most recent book, just released, is "Screwed: The Undeclared War on the Middle Class and What We Can Do About It." Other books include: "The Last Hours of Ancient Sunlight," "Unequal Protection," "We The People," and "What Would Jefferson Do?"