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New Literature Challenging Standard Model

I have never read anything published by Professor Michael Waldman on the topic of the Second Amendment until I read this article in Politico, promoting his new book, The Second Amendment: A Biography. This book looks a lot like many of Adam Winkler’s assertions on early gun control laws, combined with a bit of CSGV tilting at windmills, reasserting ideas that have been thoroughly discredited in the Standard Model literature. From the Politico article, we begin with a marginalization of the Second Amendment as a quaint, meaningless passage in the Bill of Rights from the founders:

But in the grand sweep of American history, this sentence has never been among the most prominent constitutional provisions. In fact, for two centuries it was largely ignored.

Yes, because for two centuries, there wasn’t any serious attempts to restrict it. Absent the laws on Title II firearms, under the National Firearms Act, almost every piece of gun control now present at either the state or local level was enacted in the past half-century. The research into the Second Amendment was a direct response to the Gun Control movement. It would not have existed without it.

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.

This is channeling some of the arguments in Professor Winkler’s work, Gunfight. But Clayton Cramer has probably done the most thorough research on this area with his books, Concealed Weapons Laws of the Early RepublicFor the Defense of Themselves and the State, and Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie. But I could spent paragraphs just listing out the academic works on this subject. Citing Patrick Henry’s famous quote that “The great object is, that every man be armed.”:

But if you look at the full text, he was complaining about the cost of both the federal government and the state arming the militia. (“The great object is, that every man be armed,” he said. “At a very great cost, we shall be doubly armed.”) In other words: Sure, let every man be armed, but only once! Far from a ringing statement of individual gun-toting freedom, it was an early American example of a local politician complaining about government waste.

So the suggestion is that Henry would have promoted the idea that we can limit individuals to only one firearm? That’s quite a stretch. There’s another bit where he speaks of Jefferson quotes in context, where Jefferson uses the phrase “One loves to possess arms, though they hope never to have occasion for them,” noting that the context shows Jefferson used this phrase as a metaphor. But Jefferson was an avid arms collector, as was George Washington, to whom Jefferson wrote this passage. You can find passages in writing where both Jefferson and Washington describe carrying firearms in private self-defense. It’s simply hard to believe either of these men would have had any sympathy or even notion of modern gun control laws, but in order to preserve the modern 20th century sentiments on the right to keep and bear arms, they have to in fact turn the tables, and argue that it’s our view that is the modern invention, and not theirs.

I have purchased the Kindle Edition of his book. If I manage to get through it, I’ll review it.

12 Responses to “New Literature Challenging Standard Model”

  1. ctd says:

    A powerful interpretation (gist relayed from silencer genius Robert Silvers), superior to the standard model:

    The first clause amounts to “Much as we dislike standing armies, we realize that they are in fact necessary to the security of a free country.” This acknowledges that relying entirely on an “organized militia” is impractical, as people at large would rather do their own thing than be obligated to military training, and advanced training & armament is required well beyond what a “weekend warrior” can provide in time & expense.

    The second clause amounts to “The fact that there is a standing army in no way justifies disarming the populace in any way whatsoever.” This is a direct & absolute rebuttal to the inevitability of “gun control” advocates, whatever language used whenever in history, and regardless of scale & advancement of armament.

    • Sebastian says:

      I think the truth was the prefatory clause was put in as a bone to the people who were concerned about federal control over the militia. The operative clause was meant to do something thoroughly uncontroversial among the founders and essentially everyone at the time, which was to guarantee and individual right to be armed. There was no debate about it, because there wasn’t anyone who disagreed with that. What they disagreed on was how much power the federal government should have over the militia.

      One thing both Winkler and Waldmann get right is that modern libertarianism would have been undesirable to the founders. To the extent that Waldmann wants to argue Republican Virtue missing in the modern society, they are absolutely correct about that. I believe most of the founders would find people today to be quite self-absorbed, including most libertarians today.

  2. “In fact, for two centuries it was largely ignored.”

    Except by dozens of state supreme courts, half a dozen U.S. Supreme court decisions, at least a dozen scholarly works on the Constitution.

    Yeah, sounds like Winkler.

  3. “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.”

    What did Alan Gura say? Something to the effect that a pattern of infringements doesn’t elevate those infringements to a Constitutional argument?

    I tried Googling it but I can’t find it.

    • ctd says:

      That’s a rather sweeping claim of historical endorsement, failing to differentiate among actual safety issues (storage of gunpowder WAS a concern, what with large poorly-protected quantities in a culture using frequent open flames), actual justifiable denials (adjudicated felon/insane, like today), mode of carry (open carry normalized; concealed was presumptive proof of ill intent), … vs pure prohibition in the form of banning >N capacity, red tape violations, excessive costs, or “shoulder things that go up” absurdities.

      A pattern of infringements makes it hard to trump with Constitutional argument, but yes methinks Gura has a salient comment on the topic.

    • I do not think State militias ever completely dissoved. They were certainly active into the 1900s. Texas still has a home guard, as do other states.

      • Geodkyt says:

        Neither the state nor federal militias were dissolved, and neither is actually the National Guard (there’s a reason the nametapes on their uniforms, back when they wore BDUs said “US Army”, not “Militia”. SCOTUS ruled on this in the 1980s, when Minnesota tried to keep Reagan from using the MN ANG in Central America. . . )

  4. William Heino Sr. says:

    The Second Amendment, I really don’t understand why this is such a problem? When there are 49 reasons which explains it.

    If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights.

    Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?

    Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.

    Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”

    In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.

    It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.
     
    “..No Person shall be a Representative..”
    “..whole Number of free Persons,..”
    “..three fifths of all other Persons…”
    “..No person shall be a Senator…”
    “..And no Person shall be convicted…”
    “..no Person holding any Office…”
    “..Names of the Persons voting for…”
    “…of such Persons as any of the States…”
    “…not exceeding ten dollars for each Person…”
    “…And no Person holding any…”
    “…or Person holding an Office of Trust o…“
    “…and vote by Ballot for two persons,…”
    “…List of all the Persons voted for,…”
    “…The Person having the greatest Number of Votes…”
    “…and if no Person have a Majority,…”
    “…the Person having the greatest Number…”
    “…No person except a natural born Citizen,…”
    “…Any Person be eligible to that ….”
    “…No Person shall be convicted of …”
    “…except during the Life of the Person attainted….”.
    “…A Person charged in any State…”
    “…No Person held to Service…”
    “…The right of the people to be secure in their persons,…”
    “…and the persons or things to be seized….”
    “..No person shall be held to answer…”
    “..nor shall any person be subject for the same offense….”
    “…they shall name in their ballots the person voted for as President,…”
    “…the person voted for as Vice-President,…”
    “…all persons voted for as President,….”
    “…all persons voted for as Vice-President…”
    “…The person having the greatest Number of votes for President, …”
    “…and if no person have such majority,…”
    “..the persons having the highest numbers …”
    “… The person having the greatest number of votes…”
    “..and if no person have a majority,…”
    “…But no person constitutionally ineligible…”
    “…All persons born or naturalized …”
    “…nor shall any State deprive any person of life, liberty, or property,…”
    “…nor deny to any person within …”
    “…number of persons in each State,….”
    “…No person shall be a Senator or …”
    “..and such person shall act accordingly….”
    “…of the death of any of the persons from…”
    “…death of any of the persons from…”
    “…No person shall be elected to the office…”
    “…and no person who has held the office of President,…”
    “..to which some other person was elected…”
    “…shall not apply to any person holding the office…”
    “..prevent any person who may be holding…”

    Bill Heino Sr.

    • Geodkyt says:

      Mr. Heino — you are simply factually wrong, and neiother the text of the Second Amendment, the published discussions by the Founding Fathers when discussing the right to keep and bear arms, nor the consistant opinions of the Supreme Court of the United States for over 150 years agree with you. (Yes, the Second Amendment was discussed as an right held by each individual in cases dating before the Civil War.)

      For example, the text of the Seoncd Amendment does not protect the right of the “militia”.

      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.

      The fact is that “people” is the term used in the First, Fourth, Ninth, and Tenth Amendments to describe individual rights. It is never used in the Bill of rights to describe a “collective” right, nor a right pertaining to states.

  5. Brad says:

    The minority of scholars who still cling to the anti-standard model have not yet recovered the credibility they lost from the Michael Bellesiles scandal. Their unthinking and uncritical full embrace of Bellesiles’ fraudulent book “Arming America” exposed them for the hacks they really are.

    http://en.wikipedia.org/wiki/Arming_America

  6. Bellesiles is back at the podium, although at a much downmarket college, and he had another tendentious book come out last year. He’s a fraud who retains a lot of friends in the academy and in New York publishing circles.

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