Originalist Founding Fathers Were Crystal Clear about the “Arms” of Second Amendment: “A good musket or firelock”; Not a word about AR15s

One of the most troubling aspects of my effort to foster a national non-partisan discussion on “A Second Amendment for 21st Century America” has been the immediate and vitriolic attacks from gun lobby supporters against any suggestion that the “arms” mentioned in the Second Amendment were understood to be the arms existing at the time.

These gun supporters are simply hell bent on ensuring that assault weapons -- and those who wield them -- rule the land, despite the toll in human lives and social stability.

The Second Amendment definition of “arms” stands at the center of the assault weapons issue, and of gun safety advocates’ general failure to achieve or sustain legal bans on such weapons in the U.S.    In turn, the Supreme Court ruling in District of Columbia v Heller (2008), penned by gun enthusiast Justice Scalia, stands in the way of a sensible resolution of the assault weapon carnage.

These gun lobby attacks – and the arguments deployed in their support -- border on the surreal and heartless.  Gun manufacturers have long leveraged their profits via the nervousness of a fearful population -- their sales targets -- while giving gun enthusiasts the excitement of having high powered weapons on the gun range.  The result of their relentless campaign since the late 1970s: irresponsible political sycophants, a hard core cadre of “out of my cold hands” defenders of popular access to assault weapons, and 20 million of such murderous military type weapons circulating in the country.

The terror and slaughter in ten minutes at the October 1, 2017 Las Vegas music festival, which claimed some 60 innocent lives and wounded or injured 600, doesn’t faze these people, even for some of those who live in Las Vegas near the killing ground.  Being confronted by the official LVPD police report on the killings (https://www.lvmpd.com/en-us/Documents/1-October-FIT-Criminal-Investigative-Report-FINAL_080318.pdf#page65; https://youtu.be/ZxvMunFjbxg), documenting the shooter’s 23 high-powered firearms and 6,000 rounds of ammunition (some 1,057 shell casings were found at the site), has no impact on their position or logic.  One tweeter pushing back even dared to assert that the dead were simply murdered but did not have their rights violated.  Pretty incredible – and dangerous – stuff indeed but to be expected from the dogmatic and sadly misinformed.

The national assault weapons focus today should be on Scalia’s fundamentally questionable and self-serving position on “arms” in the Second Amendment in Heller.   Scalia, writing for the 5-4 majority, asserted … “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. …” 

Three simple but compelling observations challenging Scalia’s contorted argument:  

First, Scalia argues that “we” do not interpret constitutional rights that way, disingenuously implying that “we” speaks authoritatively for the country and for the national constitutional law community.  However, since he is writing for the 5-4 majority, the “we” is simply those five justices.   With that assertion in place, and writing for the narrow majority, Scalia launched into an extended wandering through English and colonial history and “what if” rephrasing to prepare the ground for his conclusion: summary dismissal of the relevance of the Second Amendment’s prefatory clause of a “well organized militia, being necessary to the security of a free State”.  The unsuccessful dissents of Justice Steven and Breyer in Heller focused methodically on the historical facts of the Amendment and its full 27 words, including the prefatory clause, which they argue convincingly was the starting point for the text and Amendment’s conception.

Secondly, and most germane in today’s battle over assault weapons, for Scalia, “arms” is a technologically open-ended word, allowing for firearm development from single shot muskets to today’s mass killing machines and, looking to coming decades, to Buck Rogers and storm trooper ray guns.

The extent of Scalia’s distortion related to “arms” becomes abundantly clear when one reads the record of the discussions of the First and Second Congresses (https://memory.loc.gov/ammem/amlaw/lwaclink.html).  Both Congresses gave considerable time to the question of national security and organizing the state militias as an alternative to a standing army, while addressing such basics as organizing the congress and government, trade/tariffs, establishing the post office, and dealing with claims of Revolutionary War veterans.

So how were “arms” understood by the members of these two initial Congresses? 

The elected members of these Congresses, as Justice Stevens underscored, made very clear their understanding of “arms” in their definitive descriptive language in the Militia Act of May 8, 1792; the discussion of militia issues began in the First Congress as it was concurrently preparing the draft Bill of Rights for submission to the states and which entered into force on December 15, 1791 and carried over to the Second Congress.

The 1792 Militia Act has crystal clear language about “arms” and thus gives the lie to Scalia’s position and approach regarding the irrelevance of firearm technological advance, which has proven so deadly to the American populace and society:

…That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … that every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”

There is it is, in simple English: a good musket or firelock, single shot weapons capable of three rounds a minute, effective up to 100 yards, if in trained hands. Not a word about future advances in arms technology, not a word about machine guns or AR15s.

In 1903, the passage of legislation updating the Militia Act (creating the National Guard and sustaining a “enrolled” militia, or pool of manpower available if mobilization required), also placed full responsibility for arming the National Guard on the federal government, thereby by eliminating any citizen responsibility to be armed in case of call-up.  The effect of that legislation was to underscore still further the irrelevance of the Second Amendment’s 27 word text on militias and national security and the need to bear arms in support.

Gun lobby push back tries to misrepresent this history by asserting that the existence of 18th century experimental precursors of multi-round weapons (the crewed Puckler gun, for example) confirms that the Founding Fathers had such in mind in referring to “arms” in the Second Amendment.  Such assertions could not be further from the facts, and deliberately ignore, as did Scalia in Heller, the very exact description of what arms were relevant to the first two Congresses, whose members wrote the Bill of Rights and the Militia Act.

Thirdly, Scalia deliberately tries to confuse the “arms” discussion, in good gun lobby fashion, by seeking to lump the impact of technological progress on the First and Second Amendments together, mixing the power and reach of an individual’s political voice with the power of today’s killing machines as though they are in fact comparable in their effect on U.S. society.   Today’s technologies allow individuals and groups to affect millions in an instant, and can shape mass behavior through sharp marketing, communications, and rampant falsehoods as we have seen in recent years.  But technology has also brought us “arms” capable of causing mass casualty events like Las Vegas, Orlando, Uvalde and so many more, and underlies the deaths and wounding of tens of thousands each year at a phenomenal human, social and economic cost to the country, dwarfing the gun violence impact in other leading industrial democracies.  Apples and oranges, and the latter the bloody kind.

We can only hope that the assault weapons debates in the Congress and in state legislatures around the country will come out on the side of true Constitutional “originalism” as well as simple sanity with regard to public safety and humanity. 

Meanwhile, ever looming in the background is the further twisting of Second Amendment history by Justice Thomas, who wrote the decisive SCOTUS ruling in NYRPA v Bruen (June 2022).  By relegating the Amendment’s clause on a “well organized” militia to the dustbin of history and asserting that the Founders were thinking purely conceptually on “arms”, Scalia prepared the ground for the next step, taken by Thomas in Bruen where he arbitrarily enshrined the notion that “self-defense is the central component” of the Second Amendment right.  Thomas’s ruling basically removed legal barriers to permitless concealed carry, ensuring even higher levels of gun violence and mayhem as well as greater risks to U.S. law enforcement.

Most perverse of this twisting of history is the mistaken but dangerous assertion (abetted by Scalia) among some in the gun lobby that the Second Amendment was written to ensure that a white armed citizenry could rise up against a tyrannical government elected democratically under the provisions of a formerly highly valued Constitution.  That such a position is an untenable contradiction escapes these ideologues, and Scalia.

The formative years of this great country were driven by the best efforts of the leaders of the time, but the Founding Fathers clearly made several serious mistakes, reflecting the structure of power and social mores of the time.  Sustaining slavery and denying women’s suffrage clearly were two missteps eventually leading to a terrible, bloody Civil War to end slavery and more than a century of political struggle by women, half of the population of the country, to win the vote.  The Second Amendment clearly joins these issues as a third conceptual mistake, one which has turned even more deadly since the rise of the gun lobby in the late 1970s and which truly threatens the social fabric of the country in the 21st century.

It is up to all of us to put pressure on Congress and legislatures, as well as Supreme Court justices and their state level counterparts, to adhere to the full wording of the Second Amendment and to recognize the true historical context of its passage. It is also up to us to persuade law enforcement leaders and rank and file officers that assault weapons are an unacceptable threat to the country’s tranquility and stability and to their own and everyone’s safety.

Let’s act together to make the U.S. a safer and more peaceful country; let’s work with Congress and civic leaders to ban assault weapons recognizing that public safety, social tranquility and a genuine originalist reading of the Constitution demand it.

For the good of the country and those who live here.

Let’s do it now.