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Gun Control: Founding Fathers vs. Today's Lawmakers

Gun Control: Founding Fathers vs. Today's Lawmakers

By Carl M. Cannon - February 4, 2013

The second of a three-part series

Within hours of the Jan. 8, 2011, mass shooting in Tucson that killed six people and wounded 13 others, including Arizona Rep. Gabrielle Giffords, the local sheriff blamed the state’s lenient gun laws.

“I have never been a proponent of letting everybody in the state carry weapons under any circumstances that they want -- and that's almost where we are,” complained Pima County Sheriff Clarence Dupnik. “I think we’re the Tombstone of the United States of America.”

Dupnik would prove to have a knack for intemperate remarks, and this one was historically inaccurate, but the frustration of law enforcement officials in the urban areas of his state was genuine.

Part 1 of This Series: Gun Control's Complicated History

In 2009, legally armed men showed up at a Phoenix rally for President Obama. One of them explained he was doing so “because I can.” The guns were in plain sight, but today they wouldn’t have to be. In 2010, the year before the Tucson carnage, Arizona enacted a law allowing residents to carry concealed weapons without a permit. Even before that statute took effect, some 154,000 Arizonans were already permitted to conceal and carry.

“I believe this legislation not only protects the Second Amendment rights of Arizona citizens,” said Gov. Jan Brewer in her signing statement, it “restores those rights as well.”

The Right to Bear Arms

In 1991, five years after he’d left the bench, former chief justice of the Supreme Court Warren E. Burger was asked whether he believed the Constitution afforded private American citizens the right to bear arms. Burger, a conservative Republican, replied 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.”

The special interest group Burger primarily had in mind was the National Rifle Association, and in a speech one year later the former jurist proclaimed flatly that “the Second Amendment doesn’t guarantee the right to have firearms at all.”

The jurisprudence on this question, let alone the Framers’ intentions, is hardly that simple. But what Warren Burger did reveal was how Americans’ perceptions of the constitutional meaning of the Second Amendment -- and of firearm ownership itself -- have constantly shifted over time.

Views consigned primarily to right-wingers and constitutional originalists today were once -- and only a generation ago -- the rallying cry of the left, particularly black radicals. Likewise, what was previously mainstream conservatism is now liberal orthodoxy. Martin Luther King Jr.’s Alabama home was described -- by a friend -- as “an arsenal.” In those days, the NRA was a moderate organization supporting gun control. In California, Gov. Ronald Reagan pushed for it.

And whether the shifting sands of the Second Amendment stem from the pitfalls of special interest influence, as Burger asserted, or from evolved political thought, today’s debates on gun control could benefit from a healthy dose of historical perspective.

The Constitution is mum on skeet shooting, which President Obama recently claimed to do at Camp David, just as it is on hunting, which was simply part of 18th century life. Nor does it mention personal protection, at least not in the sense of violent crime. And yet it was this issue -- the predilection of early Americans to assault one another fatally in the street -- that generated this nation’s first gun control laws.

As early as 1813, Kentucky and Louisiana passed state laws banning concealed weapons, including pistols, dirks, daggers, and the preferred weapon of Kentuckians -- Bowie knives.

But in 1822, in a case called Bliss v. Commonwealth, Kentucky’s Supreme Court tossed out the conviction of a defendant fined $100 for concealing a sword inside a cane. The court relied on Kentucky’s own constitution, which guaranteed “the right of the citizens to bear arms in defense of themselves and the state.”

Although litigated in Kentucky’s courts, this legal dispute had its origins in the U.S. Constitution. During the ratification process, several states, including North Carolina and Pennsylvania, discussed adding their own declarations spelling out the right to bear arms irrespective of any language about militias. Some, like the Commonwealth of Kentucky, added such language to their state constitutions.

Today, according to UCLA constitutional law scholar Adam Winkler, some 43 state constitutions have language protecting an individual’s right to own firearms. But how, and when, and where these arms can be carried constitutes a patchwork of complex and confusing statutory law.

Remember, Kentucky’s original argument was over concealed weapons, a problem legislatures have been wrestling with for 200 years.

In 1893, Texas Gov. James S. “Big Jim” Hogg declared in his annual message to the legislature that “the practice of carrying concealed deadly weapons marks the unmanly spirit and cowardice of those who indulge in it.”

“Intent to murder, and not the spirit of self-protection, lies in the heart of most men when they deliberately violate this law,” Gov. Hogg added, “and no quarter should be extended them in the application of severe penalties.

But attitudes change, even in Texas -- or rather, especially in Texas.

A century after Hogg’s remarks, a disturbed loser named George Hennard strode through a Killeen, Tex., restaurant methodically shooting diners with two semiautomatic handguns. One patron, 32-year-old Suzanna Hupp, reflexively reached for the pistol she always carried in her purse. But as Hupp later testified, she had that day decided to leave her gun in her car before going into the restaurant, worried that violating Texas’ guns laws might jeopardize her chiropractic license.

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

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