Please ensure Javascript is enabled for purposes of website accessibility
Founding Fathers & NRA Would Have a Great Gun Control Debate
The-Conversation
By The Conversation
Published 7 years ago on
February 21, 2018

Share

The Second Amendment is one of the most frequently cited provisions in the American Constitution, but also one of the most poorly understood.
The 27 words that constitute the Second Amendment seem to baffle modern Americans on both the left and right.


Opinion
Saul Cornell
Ironically, those on both ends of our contemporary political spectrum cast the Second Amendment as a barrier to robust gun regulation. Gun rights supporters – mostly, but not exclusively, on the right – seem to believe that the Second Amendment prohibits many forms of gun regulation. On the left, frustration with the lack of progress on modern gun control leads to periodic calls for the amendment’s repeal.
Both of these beliefs ignore an irrefutable historical truth. The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.
I have been researching and writing about the history of gun regulation and the Second Amendment for the past two decades. When I began this research, most people assumed that regulation was a relatively recent phenomenon, something associated with the rise of big government in the modern era. Actually, while the founding generation certainly esteemed the idea of an armed population, they were also ardent supporters of gun regulations.
Consider these five categories of gun laws that the Founders endorsed.

No. 1: Registration

Today American gun rights advocates typically oppose any form of registration – even though such schemes are common in every other industrial democracy – and typically argue that registration violates the Second Amendment. This claim is also hard to square with the history of the nation’s founding. All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.

No. 2: Public carry

The modern gun rights movement has aggressively pursued the goal of expanding the right to carry firearms in public.
The American colonies inherited a variety of restrictions that evolved under English Common Law. In 18th-century England, armed travel was limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. Concealable weapons such as handguns were subject to even more stringent restrictions. The city of London banned public carry of these weapons entirely.
The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence, including the ban on traveling armed in populated areas. Thus, there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.
In other parts of the nation, the traditional English restrictions on traveling armed persisted with one important change. American law recognized an exception to this prohibition for individuals who had a good cause to fear an imminent threat. Nonetheless, by the end of the century, prohibiting public carry was the legal norm, not the exception.

It was only after the Civil War that a more aggressive stance on the right to self-defense outside of the home emerged.

No. 3: Stand-Your-Ground laws

Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.
The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine, or the idea that “a man’s home is his castle.” The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades after the Civil War.

No. 4: Safe Storage Laws

Although some gun rights advocates attempt to demonize government power, it is important to recognize that one of the most important rights citizens enjoy is the freedom to elect representatives who can enact laws to promote health and public safety. This is the foundation for the idea of ordered liberty. The regulation of gun powder and firearms arises from an exercise of this basic liberty.
In 1786, Boston acted on this legal principle, prohibiting the storage of a loaded firearm in any domestic dwelling in the city. Guns had to be kept unloaded, a practice that made sense since the black powder used in firearms in this period was corrosive. Loaded guns also posed a particular hazard in cases of fire because they might discharge and injure innocent bystanders and those fighting fires.

No. 5: Loyalty Oaths

One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.


The Constitution defines taking up arms against the government as treason.
In fact, the Founders engaged in large-scale disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.
The notion that the Second Amendment was understood to protect a right to take up arms against the government is absurd. Indeed, the Constitution itself defines such an act as treason.
The ConversationGun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.
Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
This article was originally published on The Conversation. Read the original article.

DON'T MISS

First California EV Mandates Hit Automakers This Year. Most Are Not Even Close

DON'T MISS

California Woman Arrested in Russia Freed in Prisoner Swap: What We Know

DON'T MISS

Trump Has Added 145% Tariff to China, White House Clarifies

DON'T MISS

The House Passed a Requirement to Prove US Citizenship to Vote. This Is How It Could Affect Voting

DON'T MISS

Israel Releases 10 Palestinians Detained From Gaza. They Say They Suffered Abuse

DON'T MISS

Merced Revises Flag Policy After Debate. ‘I Just Don’t See That as the Role of Government’

DON'T MISS

International Students at UC Merced, CSU Among Those Seeing Visas Revoked

DON'T MISS

Fresno Two-Vehicle Crash Causes Power Outage, Traffic Backup Near Fruit and Herndon

DON'T MISS

House Narrowly Passes GOP Budget Plan With Trump Tax Cuts

DON'T MISS

Valley Crime Stoppers’ Most Wanted Person of the Day: Leal Ray Simmons

DON'T MISS

Fresno Police Will Conduct DUI Patrols on Saturday

UP NEXT

Why Did So Many People Delude Themselves About Trump?

UP NEXT

LA Feud Is Prime Example of Constant Clashes Between CA Cities and Counties

UP NEXT

Earth Day Festival at Fresno City College Is a Great Place to Eat, Play, Learn

UP NEXT

Can Musk Pull Trump Back From the Tariff Ledge?

UP NEXT

CA’s Homeless Shelters Aren’t for Everyone. That Doesn’t Mean They Don’t Work

UP NEXT

In California’s Capitol, Some Political Fights Span Decades

UP NEXT

I Just Saw the Future. It Was Not in America.

UP NEXT

Trump Just Bet the Farm

UP NEXT

As Dem Candidates for Governor Increase, They Wait for Harris to Decide

UP NEXT

Why Project Labor Agreements Are Good for Our Schools and Students: Opinion

Israel Releases 10 Palestinians Detained From Gaza. They Say They Suffered Abuse

2 hours ago

Merced Revises Flag Policy After Debate. ‘I Just Don’t See That as the Role of Government’

2 hours ago

International Students at UC Merced, CSU Among Those Seeing Visas Revoked

3 hours ago

Fresno Two-Vehicle Crash Causes Power Outage, Traffic Backup Near Fruit and Herndon

3 hours ago

House Narrowly Passes GOP Budget Plan With Trump Tax Cuts

3 hours ago

Valley Crime Stoppers’ Most Wanted Person of the Day: Leal Ray Simmons

3 hours ago

Fresno Police Will Conduct DUI Patrols on Saturday

3 hours ago

Visalia Motorcyclist Ejected in Early Morning Crash

4 hours ago

Luka Doncic Scores 45 Points in Dallas Return as Lakers Clinch Playoff Spot

4 hours ago

Teoscar Hernández Homers and Drives in 3 as Dodgers Defeat Nationals to Avoid Sweep

4 hours ago

California Woman Arrested in Russia Freed in Prisoner Swap: What We Know

LOS ANGELES — Moscow has freed a Russian American convicted of treason in exchange for a Russian German man jailed on smuggling charges in t...

43 minutes ago

Ksenia Karelina, also known as Khavana sits in a glass cage in a court room in Yekaterinburg, Russia, Thursday, June 20, 2024. (AP File)
43 minutes ago

California Woman Arrested in Russia Freed in Prisoner Swap: What We Know

President Donald signs executive orders in the Oval Office of the White House in Washington, on Wednesday, April 9, 2025. White House officials clarified on Thursday that the 125% tariff on goods from China announced on Wednesday was in addition to a 20% tariff added since President Donald Trump returned to office — and on top of other preexisting levies he already put in place. (Eric Lee/The New York Times)
1 hour ago

Trump Has Added 145% Tariff to China, White House Clarifies

Rep. Chip Roy, R-Texas, speaks during a joint subcommittee hearing of the House Judiciary Committee on Capitol Hill, Tuesday, April 1, 2025, in Washington. (AP/Mark Schiefelbein)
2 hours ago

The House Passed a Requirement to Prove US Citizenship to Vote. This Is How It Could Affect Voting

Palestinians receive humanitarian aid distributed by UNRWA, the U.N. agency helping Palestinian refugees in Jabaliya, Gaza Strip on Wednesday, April 9, 2025. (AP/Jehad Alshrafi)
2 hours ago

Israel Releases 10 Palestinians Detained From Gaza. They Say They Suffered Abuse

Merced's Bob Hart Square in the city's downtown is shown on April 9, 2025 (The Merced FOCUS)
2 hours ago

Merced Revises Flag Policy After Debate. ‘I Just Don’t See That as the Role of Government’

UC Merced, CSU confirm student visa revocations amid national crackdown tied to pro-Palestinian protests. (The Merced Focus/UC Merced)
3 hours ago

International Students at UC Merced, CSU Among Those Seeing Visas Revoked

Fresno police are seeking two suspects who stole several boxes of shoes from the WSS store on East Cesar Chavez Boulevard on February 20, 2025.
3 hours ago

Fresno Two-Vehicle Crash Causes Power Outage, Traffic Backup Near Fruit and Herndon

Speaker of the House Mike Johnson, R-La., takes questions on tariffs while meeting with reporters at a news conference, at the Capitol, in Washington, Tuesday, April 1, 2025. (AP/J. Scott Applewhite)
3 hours ago

House Narrowly Passes GOP Budget Plan With Trump Tax Cuts

Help continue the work that gets you the news that matters most.

Search

Send this to a friend