A friend recently pointed me to this old NPR Radiolab Podcast "More Perfect - The Gun Show" that is a little more than an hourlong podcast that purports to trace the "history" of the belief that the Second Amendment confers an individual right to firearm ownership to a coup in the National Rifle Association leadership in the 1970s and the creation of the NRA's Institute for Legislative Action.
After listening to the podcast, here's the email I sent to my friend, links added:
Interesting. It's about what I would expect coming from a left-of-center media outlet/journalists. It's an earnest attempt to cover the issue, but they're led astray by basically using Adam Winkler and his book as a blueprint.
The idea that an individual-rights view of the 2nd sprang from whole cloth in the 1970s isn't accurate. Ironically, if you read the infamous Dred Scott decision [Page 45], Justice Roger Taney says in it that if black men are citizens, then they'll be able to have guns. No one at the time thought that was because they were part of the militia. It also ignores all of the Reconstruction Era constitutional amendments and laws that Northern legislators passed with the express purpose of attempting to arm freed slaves so they could defend themselves.
There's no Frederick Douglass quotes about blacks' freedom dependent on "the ballot box, the jury box, and the cartridge box." He wasn't talking about a collective right of militia service.
The lack of legal rulings on the 2nd Amendment for nearly 200 years wasn't because it was universally understood as a militia right, but because, aside from racist gun control laws in the South, there wasn't any widespread gun control to speak of until the National Firearms Act in 1932. It was universally understood that "the people" could keep and bear arms irrespective of militia service until the Black Panthers started scaring people in the 60s.
The podcast kinda betrays that fact inadvertently when it talks about how Scalia carried a rifle to school on NYC subways as a youth. How the hell did that happen if there was universal consensus among the general population that the 2nd was about militias and the "new, " ahistorical understanding was it was an individual right?
For the record, here is the paragraph from the Dred Scott decision that talks about the rights of citizens and how, especially, the Southern states wouldn't have agreed to the constitution if anyone had thought these same rights extended to slaves.
The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own satiety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. [emphasis added]
Does that sound like a right of state militias? Taney isn't talking about free blacks all of the sudden being part of the militias. Instead, he's talking about an individual right afforded to citizens. He lists it right there with freedom of speech and assembly, which are enshrined in the First Amendment.
The idea that the right to "keep and bear" arms is only connected with militia service, and the modern day militias are the state National Guards, therefore you do not have a right to keep a gun in your home or carry it with you outside of your home for purposes of self defense is a creation of 20th century legal scholarship, not the prevailing view of the people, the courts and their elected officials for the first 150 years of our history.
Leave a Reply