The Blog

Opine Needles

The Blog


Guns - Modern MusketAnd so we jump with both feet into the breech!

The gun control debate now rages, and once Vice President Biden pitches his pre-conceived soft (musket) ball to the President, there will no doubt be some form or another of an executive challenge emanating from the White House for Congress to act. The only real guessing game left is whether the President will attempt to usurp the balance of powers and issue an Executive Order. If his first four years are to provide us with a roadmap, I would not bet against such usurpation.

This is a thorny issue, so I am going to attempt to grab the stem of the issue by viewing it through a historical lens. In dialogues held with gun control friends and foes, this rancorous debate too quickly disintegrates into petty partisan political bickering. To my mind, this should not be yet another reason for Democrats and Republicans to sling mud. Yet that is what happens, day after day. So let’s take a step back in time and get into the heads of many of our Founding Fathers. Ours is a nation of laws. Our Federal laws are founded (and reviewed regularly) in the principles written in our Constitution. (You may peruse same on this website.)

The Second Amendment to the Constitution addresses the right to bear arms. It too may be found along with all other Constitutional Amendments on the Opine Needles website.

For more than two hundred years, scholars have debated the intent of the words behind the 2nd Amendment. Based on my reading of history, I think those who use the 2nd Amendment to argue for gun control are being disingenuous. The biggest debate revolves around whether or not the reference to “a well regulated militia” is separated wholly by the existing comma from the reference to “the right of the people to keep and bear arms.” Those in favor of gun control see the inextricable connectivity. They go further to then suggest that the arms of our forefathers bore little resemblance and a fraction of the killing power to those we see today. Ergo, the irrelevance of the peoples’ right to bear arms in the militia in today’s world coupled with the impracticality of referring to an 18th century document, (the authors of which could not possibly fathom the extent to which weapons would develop) makes reference to the 2nd Amendment in today’s gun control discussions all but moot. Those in favor of gun control say we must deal with the here and now, and stop hiding behind a 2nd Amendment which they say doesn’t provide anything to hide behind anyway!

I certainly wish the 2nd Amendment had inserted a semi colon instead of a comma. In point of fact, colons, semi-colons, and commas were used interchangeably during this time period. It would not have been at all unusual for a comma to divide two separate points. If the opinions of those who fought for our Independence were not so readily available, we could labor forever to determine whether “the right of the people to keep and bear arms” is an “independent” right within the overall meaning of the 2nd Amendment. As history makes very clear, however, there is little to no room for doubt as to exactly how they felt.

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms…” - Samuel Adams, Debates of the Massachusetts Convention of 1788, printed in “Debates and Proceedings in the Convention of the Commonwealth of Massachusetts”, at 86-87 (Peirce & Hale, eds., Boston, 1850)

The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, … or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press. - Thomas Jefferson, Letter to Major John Cartwright (5 June 1824)

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate Governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple Government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the Governments are afraid to trust the people with arms.” - James Madison, Federalist No. 46 (1788).

“The great object is that every man be armed” and “everyone who is able may have a gun.” - Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” - Richard Henry Lee, Letters from the Federal Farmer to the Republic, Letter XVIII (25 January 1778).

“Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” - “M.T. Cicero“, in a newspaper letter of 1788 touching the “militia” referred to in the 2nd Amendment to the Constitution.

This sentence comes from Thomas Jefferson’s three drafts of the Virginia Constitution. The text does vary slightly in each draft:

First Draft: “No freeman shall ever be debarred the use of arms.”

Second Draft: “No freeman shall be debarred the use of arms [within his own lands or tenements].”

Third Draft: “No freeman shall be debarred the use of arms [within his own lands or tenements]”

This sentence does not actually appear in the Virginia Constitution as adopted.

The point is that before we even start any discussion about what to do on the gun issue today, let’s at least be intellectually honest and commence the dialogue from the baseline that any alleged ambiguity regarding our founding fathers’ views is nonsense. They wanted the people to be armed.

The bothersome thing to this author is the extent to which those in favor of gun control work to discredit those who point to the 2nd Amendment in defense of their right to bear arms. They do so with a resoluteness and condescending contempt. They do so as though they have the moral high ground. Well, views are views and one man’s moral high ground is another’s cesspool of sin, so all the vitriol in the world amounts to just that. Vitriol does not win arguments or further any viewpoint down a path to progress. Only facts will do that.

I do not write to embarrass those who are too emotional to think through this issue. As I said at the outset, it’s a tough one, and will no doubt end up somehow, someway back with the Supreme Court. All I implore you to do is to start the discussion based on historical fact. And folks, the fact is that our Founding Fathers wanted us to have the inalienable right to bear arms. Full stop.

“Let me put it this way; there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.” - Clarence Thomas, Supreme Court Justice

More to Follow-

  • Richard Colt

    By Charles Krauthammer

    Every mass shooting has three elements: the killer, the weapon and the cultural climate. As soon as the shooting stops, partisans immediately pick their preferred root cause with corresponding pet panacea. Names are hurled, scapegoats paraded, prejudices vented. The argument goes nowhere.
    Let’s be serious:
    (1) The Weapon
    Within hours of last week’s Newtown, Conn., massacre, the focus was the weapon and the demand was for new gun laws. Several prominent pro-gun Democrats remorsefully professed new openness to gun control. Sen. Dianne Feinstein (D-Calif.) is introducing a new assault weapons ban. And the president emphasized guns and ammo above all else in announcing the creation of a new task force.
    I have no problem in principle with gun control. Congress enacted (and I supported) an assault weapons ban in 1994. The problem was: It didn’t work. (So concluded a University of Pennsylvania study commissioned by the Justice Department.) The reason is simple. Unless you are prepared to confiscate all existing firearms, disarm the citizenry and repeal the Second Amendment, it’s almost impossible to craft a law that will be effective.
    Feinstein’s law, for example, would exempt 900 weapons. And that’s the least of the loopholes. Even the guns that are banned can be made legal with simple, minor modifications.
    Most fatal, however, is the grandfathering of existing weapons and magazines. That’s one of the reasons the ’94 law failed. At the time, there were 1.5 million assault weapons in circulation and 25 million large-capacity (i.e., more than 10 bullets) magazines. A reservoir that immense can take 100 years to draw down.
    (2) The Killer
    Monsters shall always be with us, but in earlier days they did not roam free. As a psychiatrist in Massachusetts in the 1970s, I committed people — often right out of the emergency room — as a danger to themselves or to others. I never did so lightly, but I labored under none of the crushing bureaucratic and legal constraints that make involuntary commitment infinitely more difficult today.
    Why do you think we have so many homeless? Destitution? Poverty has declined since the 1950s. The majority of those sleeping on grates are mentally ill. In the name of civil liberties, we let them die with their rights on.
    A tiny percentage of the mentally ill become mass killers. Just about everyone around Tucson shooter Jared Loughner sensed he was mentally ill and dangerous. But in effect, he had to kill before he could be put away — and (forcibly) treated.
    Random mass killings were three times more common in the 2000s than in the 1980s, when gun laws were actually weaker. Yet a 2011 University of California at Berkeley study found that states with strong civil commitment laws have about a one-third lower homicide rate.
    (3) The Culture
    We live in an entertainment culture soaked in graphic, often sadistic, violence. Older folks find themselves stunned by what a desensitized youth finds routine, often amusing. It’s not just movies. Young men sit for hours pulling video-game triggers, mowing down human beings en masse without pain or consequence. And we profess shock when a small cadre of unstable, deeply deranged, dangerously isolated young men go out and enact the overlearned narrative.
    If we’re serious about curtailing future Columbines and Newtowns, everything — guns, commitment, culture — must be on the table. It’s not hard for President Obama to call out the NRA. But will he call out the ACLU? And will he call out his Hollywood friends?
    The irony is that over the last 30 years, the U.S. homicide rate has declined by 50 percent. Gun murders as well. We’re living not through an epidemic of gun violence but through a historic decline.
    Except for these unfathomable mass murders. But these are infinitely more difficult to prevent. While law deters the rational, it has far less effect on the psychotic. The best we can do is to try to detain them, disarm them and discourage “entertainment” that can intensify already murderous impulses.
    But there’s a cost. Gun control impinges upon the Second Amendment; involuntary commitment impinges upon the liberty clause of the Fifth Amendment; curbing “entertainment” violence impinges upon First Amendment free speech.
    That’s a lot of impingement, a lot of amendments. But there’s no free lunch. Increasing public safety almost always means restricting liberties.
    We made that trade after 9/11. We make it every time the Transportation Security Administrationinvades your body at an airport. How much are we prepared to trade away after Newtown?

    • Opine Needles

      Thanks for that Richard. I am a huge Krauthammer fan…only wish I had 1/2 his brain!

  • Wortman

    Well presented, Mr. Pierce, with verve and concision.

    There is clearly the beginning of another ‘national conversation,’ but there are two different languages spoken, and many, but not all people have their minds made up in advance. Do you all remember the Koerner Commission after the tumult of the late 1960s? Did that effectively impact violent gang culture in Detroit, LA, Chicago, and elsewhere? What I find bizarre is the view of some in media and policy-making positions to **shame** legitimate ownership and use of firearms. Mr. Holder is on record, by the way, as having said this. Oddly but understandably, those who are most open to broad interpretations of the First Amendment are rigid, if not intolerant, on the Second. Doubtless, those of us concerned with individual rights and liberty–the bedrock of this Repubic– as well as of arbitrary governmental power will continue to wrestle confront the delicate divide between national security and civil liberties. Predatory, violent people, on the other hand, could care less about debate and will continue to harm. Long story short: additional mandatory regulation under the rubric of “gun violence prevention” will in no way scratch the surface of criminal culture. Those who speak of a violent Wild West need only look to New York City, the Wild East, and Chicago to grasp reality. They will not. On firearms prohibition people tend to cherry-pick their evidence, as we’ve seen in all too tiresome, accusatory panel discussions–some with rudeness, as witness one CNN talk-show host, What is disturbing is state intrusion on the legitimate and principled right of self defense. I was pleased to add my name, with other academics, as a supporter of the brief on behalf of an elderly man in a crime-ridden neighborhood in Chicago (McDonald v Chicago) who was denied a permit to possess a handgun by the authorities. McDonald won this round, but surely more of such cases are to come. Two final observations: 1) Should Leviathan desire,
    it can do what it wishes. Our Bill of Rights inhibits this, of course; still, there are no guarantees.given emergencies. I’ll not list historical events here. 2) In our Republic with over three hundred million people, another monster may, sadly, once again appear. Coercive as it may be, legislation does not eradicate human evil.

    Roy T. Wortman

    • Opine Needles

      As always….a thoughtful comment…appreciate your taking the time to write.

  • Jhelitzer

    Well written and well-reasoned, Jim.

    As expected from a fellow alum and History major which included excellent guidance by Prof Wortman (thank you).

    And we cannot prevent everything, no matter how heinous or tragic.

    We have enough laws and need no more. Or actually less.

    • Opine Needles

      Thanks for taking the time to write John…

  • Renniemark

    Extraneous early writings really are beside the point when the text is clear. I stand with Justice Stevens’ dissenting opinion in Heller: ” Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”’ We need to remember what a departure from previous Second Amendment jurisprudence the 2008 5-4 Heller decision was. The Thomas quote is inapposite where, as here, the text doesn’t remotely support the final outcome. No vitriol or condescension here; just observing that the extremely recent broad interpretation of the Second Amendment bears no relation to the actual text nor did it have the support of any prior judicial precedent. The result was judicial activism under the guise of originalism.

  • Elizabeth B. Tucker

    I think what is missing in the overall debate, is not the right to bear arms, which is clear, but whether or not to have semi-automatic weapons and large caches of ammo available. Second to this is the fact that guns can be purchased at gun shows without any sort of backround checks or waiting period. A lot of people I know have guns, use them responsibly and are members of the NRA. But there are guns and there are guns. And that is what the debate should be focused on.

    • Opine Needles

      Thanks Liz…I understand your views…it is a very slippery slope…if there were an easy answer, we’d have implemented it…personally, I want to see massive focus on the mental health and school security fronts…

    • Opine Needles

      By JOHN R. LOTT JR.

      Warning about “weapons designed for the theater of war,” President Obama on Wednesday called for immediate action on a new Federal Assault Weapons Ban. He said that “more of our fellow Americans might still be alive” if the original assault weapons ban, passed in 1994, had not expired in 2004. Last month, in the wake of the horrific shooting at Sandy Hook Elementary in Newtown, Conn., Sen. Dianne Feinstein (D., Calif.) promised to introduce an updated version of the ban. She too warned of the threat posed by “military weapons.”
      After the nightmare of Newtown, their concern is understandable. Yet despite being at the center of the gun-control debate for decades, neither President Obama nor Ms. Feinstein (the author of the 1994 legislation) seems to understand the leading research on the effects of the Federal Assault Weapons Ban. In addition, they continue to mislabel the weapons they seek to ban.
      Ms. Feinstein points to two studies by criminology professors Chris Koper and Jeff Roth for the National Institute of Justice to back up her contention that the ban reduced crime. She claims that their first study in 1997 showed that the ban decreased “total gun murders.” In fact, the authors wrote: “the evidence is not strong enough for us to conclude that there was any meaningful effect (i.e., that the effect was different from zero).”
      Messrs. Koper and Roth suggested that after the ban had been in effect for more years it might be possible to find a benefit. Seven years later, in 2004, they published a follow-up study for the National Institute of Justice with fellow criminologist Dan Woods that concluded, “we cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”
      Moreover, none of the weapons banned under the 1994 legislation or the updated version are “military” weapons. The killer in Newtown used a Bushmaster .223. This weapon bears a cosmetic resemblance to the M-16, which has been used by the U.S. military since the Vietnam War. The call has frequently been made that there is “no reason” for such “military-style weapons” to be available to civilians.
      Enlarge Image

      Getty Images
      Sen. Dianne Feinstein

      Yes, the Bushmaster and the AK-47 are “military-style weapons.” But the key word is “style”—they are similar to military guns in their cosmetics, not in the way they operate. The guns covered by the original were not the fully automatic machine guns used by the military, but semiautomatic versions of those guns.
      The civilian version of the Bushmaster uses essentially the same sorts of bullets as small game-hunting rifles, fires at the same rapidity (one bullet per pull of the trigger), and does the same damage. The civilian version of the AK-47 is similar, though it fires a much larger bullet—.30 inches in diameter, as opposed to the .223 inch rounds used by the Bushmaster. No self-respecting military in the world would use the civilian version of these guns.
      A common question is: “Why do people need a semiautomatic Bushmaster to go out and kill deer?” The answer is simple: It is a hunting rifle. It has just been made to look like a military weapon.
      But the point isn’t to help hunters. Semiautomatic weapons also protect people and save lives. Single-shot rifles that require you to physically reload the gun may not do people a lot of good when they are facing multiple criminals or when their first shot misses or fails to stop an attacker.
      Since the Federal Assault Weapons Ban expired in September 2004, murder and overall violent-crime rates have fallen. In 2003, the last full year before the law expired, the U.S. murder rate was 5.7 per 100,000 people, according to the Federal Bureau of Investigation’s Uniform Crime Report. By 2011, the murder rate fell to 4.7 per 100,000 people. One should also bear in mind that just 2.6% of all murders are committed using any type of rifle.
      The large-capacity ammunition magazines used by some of these killers are also misunderstood. The common perception that so-called “assault weapons” can hold larger magazines than hunting rifles is simply wrong. Any gun that can hold a magazine can hold one of any size. That is true for handguns as well as rifles. A magazine, which is basically a metal box with a spring, is trivially easy to make and virtually impossible to stop criminals from obtaining. The 1994 legislation banned magazines holding more than 10 bullets yet had no effect on crime rates.
      Ms. Feinstein’s new proposal also calls for gun registration, and the reasoning is straightforward: If a gun has been left at a crime scene and it was registered to the person who committed the crime, the registry will link the crime gun back to the criminal.
      Nice logic, but in reality it hardly ever works that way. Guns are very rarely left behind at a crime scene. When they are, they’re usually stolen or unregistered. Criminals are not stupid enough to leave behind guns that are registered to them. Even in the few cases where registered guns are left at crime scenes, it is usually because the criminal has been seriously injured or killed, so these crimes would have been solved even without registration.
      Canada recently got rid of its costly “long-gun” registry for rifles in part because the Royal Canadian Mounted Police and the Chiefs of Police could not provide a single example in which tracing was of more than peripheral importance in solving a gun murder.
      If we finally want to deal seriously with multiple-victim public shootings, it’s time that we acknowledge a common feature of these attacks: With just a single exception, the attack in Tucson last year, every public shooting in the U.S. in which more than three people have been killed since at least 1950 has occurred in a place where citizens are not allowed to carry their own firearms. Had some citizens been armed, they might have been able to stop the killings before the police got to the scene. In the Newtown attack, it took police 20 minutes to arrive at the school after the first calls for help.
      The Bushmaster, like any gun, is indeed very dangerous, but it is not a weapon “designed for the theater of war.” Banning assault weapons will not make Americans safer.
      Mr. Lott is a former chief economist at the United States Sentencing Commission and the author of “More Guns, Less Crime” (University of Chicago Press, third edition, 2010).

  • Jonathan Watson

    Well said, Mr. Pierce. Your writing dovetails nicely with the provision of the Dick Act, 10 U.S.C. S. 311, which states:

    “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”

    • Opine Needles

      My apologies for the delay in responding…I have been trying to cope with both the ridiculous State of the Union address, and the pathetic populist and hypocritical posturing by the President on the sequester issue..Thanks for writing.