Jonathan Jacobs, New Leaders Council Rhode Island

The Supreme Court’s majority opinion in the case of D.C. v. Heller guarantees the right of individuals to own firearms, striking down any ban on guns in homes. However, the 2008 decision merely codified a long campaign to misread American history in a way that selectively glorifies certain aspects of American mythology, while shamefully ignoring troublesome truths that shaped the Second Amendment. This is particularly ironic because this mythologized history claims to be based on the “original meaning” of the text. Nothing could be further from the truth. Gore Vidal said it best when he said, “We are the United States of Amnesia, we learn nothing because we remember nothing.”

Origin Story

The Second Amendment to the Bill of Rights emerged from America’s political primordial ooze as a single sentence:

“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.”

In the years immediately following the Revolution (waged upon the premise that all men are created equal) Southern states were anxious about supporting a centralized government with the potential to do away with the institution of slavery. Even those few Southern statesmen who publicly decried slavery, like Thomas Jefferson, feared that emancipation would unleash a large, horribly mistreated population that would seek revenge on their former oppressors. These voices favored deportation over emancipation, if not maintaining bondage indefinitely.

Preserving control over enslaved people rivaling in number free men in many states, including Virginia, meant constant armed vigilance against possible slave rebellions. To do this, Virginia and other states sent armed groups of local men to ride the roads at night, stopping all slaves they encountered and verifying they were not engaging in unlawful activity. In South Carolina and Virginia, these slave patrols were selected from state militias. And so in South Carolina and Virginia, “slave patrol” was a term interchangeable with “militia.” By June of 1788, when Virginia’s delegates convened in Richmond, Virginia, eight states had already voted in favor of ratifying the Constitution. On June 21, 1788, New Hampshire became the deciding ninth state, ratifying the Constitution into full effect. Four days later, on June 25, Virginia followed suit.

But Virginia had serious, slave-related concerns. And she did not agree to ratify without testimony by two high-profile, Anti-Federalist Virginians, Patrick Henry and George Mason. They spoke about Article I, Section 8, authorizing Congress to call forth, organize, arm, and discipline the militia. Henry addressed, not what Congress might do in this capacity, but what Congress might not do. He argued that, should Congress neglect or refuse to arm or discipline their “last and best defense,” the militia would be useless. Mason, approached from a different angle. He proposed an amendment limiting the power of Congress to summon militia from one state to another without the approval of the legislature of the state from which the militia was ordered to march. Mason alleged, “On real emergencies, this [legislative] consent will never be denied.”

Such arguments raise the question, against what dangers or threats were Henry and Mason implying Virginia’s militia was a “last and best defense?” Certainly not foreign military invasion. Against organized military forces, Virginia’s militia had proven feckless. When charged by the British at Camden, South Carolina in 1780, the militia fled. The unstated implication — obvious then and now — was this: a Congress sympathetic to a Northern abolitionist agenda could disarm or even remove from the state the armed police force standing between free whites and black slaves. This could not stand.

Though the Constitution technically came into effect with New Hampshire’s ratification, the new United States needed Virginia. It had disproportionate influence among the various states, and particularly in the South it carried the weight of public opinion. There was a reason so many of our early American leaders were, first and foremost, Virginians. One of those men was James Madison, the primary architect of the Constitution. Madison pursued a political career, but faced vigorous Anti-Federalist opposition. And in a Virginia fearful of Congressional de facto abolition, Madison defeated James Monroe for a seat in the House of Representatives only after reluctantly casting his support for the addition of a bill of rights, called for by Anti-Federalists. Although Madison believed the power of the enumerated articles already ratified stood on their own merits, he could not ignore that the tipping point for all states to fall in line to ratify the Constitution was when Virginia voted in favor. Virginia may have been the tenth state when just nine were needed. But, possessing disproportionately heavy influence compared to much smaller New Hampshire, Virginia carried the weight of public opinion. The Virginia delegates’ testimony during the ratification convention in June of 1788 undoubtedly influenced his drafting of the Bill of Rights, including the Second Amendment.

Whether James Madison was motivated by conscience, by political ambition, or by fear of allowing the long and difficult birth of the Constitution to end in a second Constitutional Convention, he compromised. His resolution to incorporate a bill of rights into the body of the Constitution’s text included a version of the Second Amendment that read much differently than the one ruled on in 2008 by the Supreme Court:

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

The resolution underwent debate in the House, and was edited to another draft reading:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”

Further amendments in the Senate, reduced the right to bear arms to its current grammatically vulnerable form which was formally adopted in 1791.

Reboot

For 172 years, very little attention was paid to individual right to own firearms as being worthy of Constitutional consideration. The Second Amendment was widely understood to refer to the collective right, as its terms connect its protection to the “well regulated militia … necessary to the security of a free state.” But in 1962, President Kennedy was shot in Dallas. The assassin had ordered his rifle from American Rifleman, the National Rifle Association’s official magazine. In the wake of this, the NRA, once known mainly for its advocacy for limited and responsible gun ownership, pivoted toward becoming the communications division for gun manufacturers with which Americans are now familiar. Less than five years later, our fallen President’s brother, presidential hopeful, and outspoken critic of the dangers of guns, Robert Kennedy, was also shot and killed.

Since then, the NRA has metastasized into the source of funding for “scholarly research,” bathing the Second Amendment in the light of an insurrectionist interpretation. Based on an American cultural mythos of rugged individualism and vigilante justice, such propaganda argues in favor of owning guns as an individual right of self-defense. Yet, nowhere in the language of the Second Amendment appears any mention of self-defense. Insurrectionist readings of the right to bear arms speculate that state militias are intended to include all able bodied Americans, and are responsible for protecting against the threat of tyrannical government activity. However, the language written in the body of the Constitution, Article I, section 8, clearly grants authority over militias to Congress, thereby nullifying such a notion. This revisionist campaign to market one of America’s oldest and most popular white privileges as defense of liberty, continues to be successful. Furthermore, such a distortion of the history and the intent of the Second Amendment undermines the enumerated powers and the importance of the other amendments by suggesting the only real power lies in the leverage of an armed population over its government.

This insurrectionist-washing campaign culminated in 2008’s Heller ruling. The majority of the court allowed itself to be distracted by this fog of un-history. But, as progressives, it is important to remember that the Court was only one vote away from piercing this haze. Justice Stevens, in his dissent to Chief Justice Scalia’s creative language-arts lesson/majority opinion, wrote:

“Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.”

We are now living in an unusual era — one in which unsuspecting citizens can be gunned down as they shop, watch movies, go to school, go out to concerts, clubs, and head to work everyday. This unusual time and place is the America of Heller’s “unusual approach.” Progressives should rise up to shed light on the distorted history of our unusual circumstances, and fight for a future less fearsome than our past and more hopeful than our present.

Jonathan Jacobs is an Adjudicator for the State of Rhode Island Department of Labor and Training, and a government relations/political campaign consultant. A 2014 New Leaders Council — Rhode Island fellow, he is a member of the Rhode Island chapter’s Advisory Board. Follow Jonathan on Twitter @JJacobs_RI.