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The Independent Institute
Commentary

Deconstructing the Second Amendment


Al Gore insisted in the second presidential debate that all handguns must be "licensed" by the government, which he insisted is not "registration." When asked who would administer this massive paper shuffling, Gore answered that he would assign it to the States. (Never mind that in Printz v. U.S. [1997] the Supreme Court invalidated the Brady Act’s command that the States perform background checks.) At every opportunity, Gore attacks Gov. Bush for signing a bill that allows law-abiding Texans to get a permit to carry a concealed handgun.

Meanwhile, Clinton’s Solicitor General Seth Waxman wrote in an August 22nd letter "there is no personal constitutional right, under the Second Amendment, to own or to use a gun."

Deconstruction of the Second Amendment just got an ideological boost by publication of Michael A. Bellesiles’s book, Arming America: The Origins of a National Gun Culture (Knopf, 2000). A Gore-packed federal judiciary would find the tome very quotable. Trendy gun prohibitionists are touting the Emory University historian as their great hope to defeat what is now the Standard Model of the Second Amendment, under which (surprise) "the right of the people to keep and bear arms" means just what it says.

While Bellesiles’s book is long and tedious, its premises are simple. Few Americans at the time of the Founding owned or cared about firearms. The proof is that only 14 percent of deceased persons had firearms listed in the inventories of their estates. Just for fun, I checked the inventories of Thomas Jefferson’s three estates, and not a single firearm was listed. It just happens that he owned dozens of guns during his life; a pair of his pocket pistols are on display at Monticello.

Curiously, Bellesiles asserts that "there were more guns per capita among the Indians than among the whites." He does not tell us which Indian probate records he checked.

In a theory of technological determinism reminiscent of Marx, we are told that today’s "gun culture" is the product of the massive production of arms in the Civil War, combined with "a conviction, supported by the government, that the individual ownership of guns served some larger social purpose." The "gun culture" cannot be traced to the period of the Revolution and the adoption of the Constitution.

Charlton Heston and his NRA buddies are deluded by the myth of the Minuteman, who was more farce than reality. Bellesiles’s proof that American militiamen could not shoot straight: at Lexington and Concord 3,763 Minutemen shot only 273 Redcoats (never mind that these trained soldiers hit just 95 Americans). That’s pretty good marksmanship for shooting flintlocks in anger. U.S. forces in Vietnam fired 50,000 rounds for each enemy casualty.

Bellesiles contorts and stretches five hundred years of American history to make two basic points: plenty of precedent exists for gun control, and there is no such thing as a personal right to keep and bear arms. Colonial governments "ma[de] all guns into the property of the state, subject to storage in central storehouses." Yet Bellesiles cites no evidence that this fantasy of today’s pacifists and police states ever existed.

To be sure, colonial authorities sought to disarm blacks and Indians, and at times otherwise restricted the right to arms. But that does not mean that republican-minded colonists had no concept of the right. John Peter Zenger’s prosecution for seditious libel does not negate the American tradition of free speech. Instead, it is proven by his acquittal.

The supposed lack of firearms ownership, according to Gary Wills and others who wrote raving reviews of the book, somehow impeaches any value to the Second Amendment. Bellesiles could just as well have found that decedents had few books in their inventories as a basis to doubt the validity of the First Amendment. Today’s "free-speech culture" could join the "gun culture" as a historical fraud.

Bellesiles avoids any meaningful discussion of key episodes that illustrate the historical importance and extent of firearms ownership. For instance, just after Lexington and Concord, General Gage promised the citizens of Boston that they could leave the occupied city if they surrendered their arms to their selectmen. Citizens turned in 1,778 firearms and 634 pistols. The Declaration of Causes of Taking Up Arms, adopted by the Continental Congress in 1775, complained that "the said inhabitants having deposited their arms with their own magistrates," thereafter "the governor ordered the arms deposited as aforesaid, that they might be preserved for the owners, to be seized by a body of soldiers."

Gage’s "gun turn-in" was no more successful than those of today. He proclaimed that, despite repeated assurances that Bostonians had relinquished their firearms, he "had full proof that many had been perfidious in this respect, and have secreted great numbers." This time he really meant it: "all persons in whose possession any firearms may hereafter be found, will be deemed enemies to his majesty’s government." Query whether Al Gore, if elected, will be any more successful.

The Second Amendment, Bellesiles asserts, "indicates that the state and federal governments continued the legal British tradition of controlling the supply of and access to firearms." The states had "gun regulations" just like "every European country." To the contrary, as Madison stated in The Federalist No. 46, it is "the advantage of being armed, which the Americans possess over the people of almost every other nation," and further: "Notwithstanding the military establishments in the several kingdoms of Europe, . . . the governments are afraid to trust the people with arms."

The Anti-Federalists did not seek the "enhancement of individual rights," claims Bellesiles, oblivious to the fact that the Bill of Rights they caused to be adopted protects individual rights exclusively, other than the reservation of powers to the States in the Tenth Amendment. He quotes Patrick Henry in the Virginia convention, but fails to report that Henry also impressed upon his colleagues: "The great object is, that every man be armed."

Ten days after Madison introduced the Bill of Rights in Congress, Tench Coxe published an analysis which stated in part: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, . . . the people are confirmed . . . in their right to keep and bear their private arms." This was widely reprinted without contradiction and received Madison’s blessing. Bellesiles consigns this to the Orwellian Memory Hole and asserts that "the idea of a privately owned gun was treated as unusual."

One gets the uneasy feeling that Arming America is a crypto-intellectual equivalent of Al Gore’s claim of "no controlling legal authority." This 600-page book denies the existence of "the right of the people to keep and bear arms" without even once analyzing those words or the Framers’ explanations. Should Gore win and appoint Justices to the Supreme Court, Bellesiles is sure to be prominently cited as authority in any opinion on the Second Amendment.


Stephen P. Halbrook, Ph.D., J.D., is Research Fellow at The Independent Institute and author of the books, Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State”, The Founders' Second Amendment and Securing Civil Rights, the latter two of which were cited in the the U.S. Supreme Court cases of District of Columbia v. Heller and McDonald v. Chicago as well as his earlier Amici Curiae Brief in Heller on behalf of 55 members of the Senate, the Senate President, and 250 members of the House of Representatives. Dr. Halbrook is also the author of the book, That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Institute).
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