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Gun Control: Founding Fathers vs. Today's Lawmakers

By Carl M. Cannon - February 4, 2013

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Levinson himself is a liberal member of the ACLU, and a man who personally favors strict gun control laws. But in noting that the Second Amendment is essentially absent from the “legal consciousness of the elite bar,” he suggests that the reason is “a mixture of sheer opposition to the idea of private ownership of guns” along with the fear that litigating this issue on constitutional grounds would mean losing.

His argument would prove prescient. In 2008, a narrowly divided U.S. Supreme Court did indeed decide that the Second Amendment guarantees some rights of gun ownership, at least in one’s own home. In that case, District of Columbia v. Heller, the court did not say that localities, states, and Congress cannot regulate firearms -- far from it -- but the high court did uphold the basic premise that the Second Amendment does apply to private citizens.

Most arguments over the constitutionality of gun control laws start, as did the spirited debate between the justices in Heller, with the opening phrasing of the Second Amendment itself: “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.”

If the right to own firearms is an individual right -- such as freedom of speech and religion -- what’s that business about “a well-regulated militia” doing in there? Much of the Heller deliberations, like the national discourse on this subject, delves into whether the Framers envisioned “militias” as bulwarks against a standing federal army.

The most instructive word in the Second Amendment may be “infringed,” a word that implies a pre-existing right. As legal scholar David E. Vandercroy pointed out in a Valparaiso University Law Review article 14 years before Heller was decided, the rights of private citizens were delineated in England a century before the American Revolution. The codification came in Parliament’s 1689 Declaration of Rights. Among these rights was access to arms.

“The Declaration didn’t create a right,” Vandercroy maintained. “The English had been able to possess individual arms for centuries.”

This is what Jan Brewer was alluding to when she signed legislation loosening Arizona’s gun laws: the idea that the right to bear arms is a foundational one, codified by the Framers, but not originally conceived by them.

There is little consensus on this point among modern legal scholars, nor was there among the Framers, either, although a fair reader of their sentiments reveals attitudes about firearms generally at odds with liberal thinkers of today.

In a draft of the Virginia Declaration of Rights, Thomas Jefferson wrote, “No freeman shall ever be debarred the use of arms.” Fellow Virginian George Mason addressed the militia question during a debate by saying, “I ask, sir, what is the militia? It is the whole people, except for a few public officials."

Even John Adams, in countering this benign view of armed militias, defended in passing the right of citizens to use guns for purposes of “private self-defense.”

To liberal thinkers, parsing such comments and applying them to our times is not entirely rational for one basic reason: Changes in technology since the U.S. Constitution was written have made private ownership of firearms a qualitatively deadlier proposition.

Yet some things haven’t changed at all. In the Heller case, for example, the justices wrestled with a gun control so strict that a resident of Washington, D.C., could not own a handgun. And if such a resident managed to go through the many hoops required to register a rifle or shotgun for hunting or sport, that gun could not be kept loaded or operable and could not, under the city’s case law, be fired inside the city limits -- even at a rapist coming through a bedroom window.

“In essence, the District’s position was that individuals had a right to have long guns in the city, they just couldn’t fire it in the city,” noted UCLA’s Adam Winkler. “It is a bit like having the right to free speech, but being barred from opening your mouth.”

It is a measure of the nation’s current polarization that even such a draconian statute was only tossed out on a 5-4 vote. One of the justices who voted to uphold Heller was John Paul Stevens, who revealed the depth of modern liberals’ antipathy to gun ownership at a lunch sponsored by the Brady Campaign to Prevent Gun Violence.

“Maybe you have some kind of constitutional right to have a cellphone with a pre-dialed 911 in the number at your bedside, and that might provide you with a little better protection than a gun which you’re not used to using,” he said sarcastically, in remarks met by appreciative chuckles from the audience.

But taking away Americans’ guns is not usually a laughing matter. Nor is it a new idea.

In Tombstone’s heyday, contrary to the Pima County sheriff’s description, the town had a fairly stringent gun control law. When coming into town, visitors were told to check their firearms at either the sheriff’s office or the Grand Hotel. It wasn’t a popular ordinance with outsiders. The day of the shooting at the O.K. Corral, in fact, a local judge had fined a member of Ike Clanton’s gang (called “The Cowboys”) $25 for violating it.

The iconic gun battle of the Old West was ignited when Wyatt Earp and his two brothers, backed by their friend Doc Holliday, kept trying to enforce the gun ban against Ike Clanton, now joined by his brother Billy and two other Cowboys, Tom and Frank McLaury.

One witness reports that Virgil Earp, who was acting as city marshal and a U.S. deputy, told them, “We have come to disarm you.” Virgil’s own recollection was that he said, “Boys, throw up your hands, I want your guns.”

That’s when the shooting began. 

Tomorrow: Part 3 -- Public Opinion and the Firearms Paradox

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Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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