Saul Cornell: The Second Amendment you don't know
[Cornell is the Paul and Diane Guenther Chair in American History at Fordham University.]
In the coming months, as the nation begins a serious discussion about gun regulation, the meaning of the Second Amendment — the statement that “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” — will be much discussed.
It is vital that Americans separate myths from realities, because what many of us seem to have forgotten is that, in the vision of the founders of the United States of America, the right to bear arms carries with it enormous burdens and responsibilities.
In fact, if we restored the Second Amendment to its original meaning, it would be the NRA’s worst nightmare. Invoking the Second Amendment ought to be a more effective argument for increased regulation than it is against it.
In 2008, a closely divided Supreme Court abandoned more than 70 years of precedent and for the first time in American history affirmed that the Second Amendment is about a right to have a handgun in the home for self-defense. Lost in most of the commentary then and now is that this is almost the exactly opposite of what James Madison, the primary architect of the amendment, intended, and is hard to reconcile with the way most ordinary Americans would have read it in 1791.
In 1776, most of the original state constitutions did not even include an arms-bearing provision. The few states that did usually also included a clause protecting the right not to bear arms. Why? Because, in contrast to other cherished rights such as freedom of speech or religion, the state could not compel you to speak or pray. It could force you to bear arms.
The founders had a simple reason for curbing this right: Quakers and other religious pacifists were opposed to bearing arms, and wished to be exempt from an obligation that could be made incumbent on all male citizens at the time.
When the Second Amendment is discussed today, we tend to think of those “militias” as just a bunch of ordinary guys with guns, empowering themselves to resist authority when and if necessary. Nothing could be further from the founders’ vision.
Militias were tightly controlled organizations legally defined and regulated by the individual colonies before the Revolution and, after independence, by the individual states. Militia laws ran on for pages and were some of the lengthiest pieces of legislation in the statute books. States kept track of who had guns, had the right to inspect them in private homes and could fine citizens for failing to report to a muster.