— Tom Mallory 🧢🥏 🤷🏽♂️ (@tom_mallory) August 28, 2023So JMM posted this xweet, and it drew a lot of responses, one of which (the best of which), was a link to this article. One measure of it is that apparently all the critics of JMM (I use the word loosely; mostly they just say JMM is wrong and think they’re very clever to do so). The quality of the responses will obsess us as we continue.
Anti-Federalists” opposed this new Constitution. The foes worried, among other things, that the new government would establish a “standing army” of professional soldiers and would disarm the 13 state militias, made up of part-time citizen-soldiers and revered as bulwarks against tyranny. These militias were the product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age 16 to 60 was enrolled. He was actually required to own—and bring—a musket or other military weapon.
It sounds like Switzerland, where this idea of a militia still prevails. And I don’t think they have the guns for self/defense, but rather for national defense.
“Self-defense” is seen as a telling rebuttal to JMM’s xweet. It is, however, very ahistorical.
On June 8, 1789, James Madison—an ardent Federalist who had won election to Congress only after agreeing to push for changes to the newly ratified Constitution—proposed 17 amendments on topics ranging from the size of congressional districts to legislative pay to the right to religious freedom. One addressed the “well regulated militia” and the right “to keep and bear arms.” We don’t really know what he meant by it. At the time, Americans expected to be able to own guns, a legacy of English common law and rights. But the overwhelming use of the phrase “bear arms” in those days referred to military activities.Oh, there's more:
Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon—and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside the context of a militia. As the Tennessee Supreme Court put it in 1840, “A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
It’s here I have to note Heller, in 2008, was the first time the Court (and so any court) held the 2nd conferred anything like an individual right. And in addition to the restraints noted above, fully automatic weapons are still banned from private ownership, so your self-defense cannot include having all the weapons the military does(as one response claimed should be allowed).Which is to say, the government. Which really does get to tell you what you can’t do, or own.
Convicted felons lose their right to bear arms in perpetuity, as a matter of federal law. No one loses their right to free speech in perpetuity.
The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops’ poor marksmanship, wanted a way to sponsor shooting training and competitions. The group testified in support of the first federal gun law in 1934, which cracked down on the machine guns beloved by Bonnie and Clyde and other bank robbers. When a lawmaker asked whether the proposal violated the Constitution, the NRA witness responded, “I have not given it any study from that point of view.” The group lobbied quietly against the most stringent regulations, but its principal focus was hunting and sportsmanship: bagging deer, not blocking laws. In the late 1950s, it opened a new headquarters to house its hundreds of employees. Metal letters on the facade spelled out its purpose: firearms safety education, marksmanship training, shooting for recreation.
That’s the NRA I grew up with; or rather, adjacent to. I’ve never owned a gun, but I had friends who did; and the NRA was all about hunting and gun safety. One rule I remember was that you NEVER, EVER, pointed a gun at a person. The rule was that you never pointed a gun at something you didn’t intend to shoot; and the corollary was that you NEVER shot a person. Gun safety; which works directly against self-defense.
And this, just because Trump came out of nowhere and prior to 2016 there were no ideological differences in politics:
Cut to 1977. Gun-group veterans still call the NRA’s annual meeting that year the “Revolt at Cincinnati.” After the organization’s leadership had decided to move its headquarters to Colorado, signaling a retreat from politics, more than a thousand angry rebels showed up at the annual convention. By four in the morning, the dissenters had voted out the organization’s leadership. Activists from the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms pushed their way into power.
The NRA’s new leadership was dramatic, dogmatic and overtly ideological. For the first time, the organization formally embraced the idea that the sacred Second Amendment was at the heart of its concerns.
The gun lobby’s lurch rightward was part of a larger conservative backlash that took place across the Republican coalition in the 1970s. One after another, once-sleepy traditional organizations galvanized as conservative activists wrested control.And I include this because there really is a lot of gibberish in the tweets responding to JMM's original xweet:
From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise, written by a William and Mary law student named Stuart R. Hays, appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.”
So that’s where that bullshit started. The responses are certain that’s a killer argument. All it really is, is brain-dead.
And in one paragraph, we see the worth of Scalia’s “judicial philosophy” (I think both words in that phrase are inapt in this context).
The argument presented in District of Columbia v. Heller showed just how far the gun rights crusade had come. Nearly all the questions focused on arcane matters of colonial history. Few dealt with preventing gun violence, social science findings or the effectiveness of today’s gun laws—the kinds of things judges might once have considered. On June 26, 2008, the Supreme Court ruled 5–4 that the Second Amendment guarantees a right to own a weapon “in common use” to protect “hearth and home.” Scalia wrote the opinion, which he later called the “vindication” of his judicial philosophy.
I.e., it has none.
Politics, in other words, overtook judicial reasoning; and that stain continues to darken our national discourse. The article is from a book published in 2014. It ends with an exhortation to do as the NRA did: work to change public sentiment. One might argue the events that followed 2014 proved the ideological GOP caught the car, and still doesn’t know what to do with it.
And that public sentiment is about to change out from under them.
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