There is a newish video from Mic featuring Brennan Center for Justice President Michael Waldman discussing what the Founding Fathers actually meant when it comes to the Second Amendment. It’s a great video from an aesthetic view because its filled with images of students running away from Douglas High and heavily armed police walking around campus, along with emotional music in the background. Walden presents the argument for gun control by claiming the Framers actually favored gun control, and would be shocked by guns now.
A constitutional lawyer reveals the truth about the Second Amendment — and how it doesn't support many of the NRA's claims.
Posted by Mic on Friday, March 2, 2018
Waldman’s argument is certainly persuasive from an emotional standpoint. But it’s not completely accurate from a historical standpoint.
He is correct in saying there were Founders who believed the ability to own firearms would protect people from a tyrannical government. St. George Tucker confirmed this in his 1803 View of the Constitution of the United States by saying it was a “palladium of liberty.”
“The right of self defense is the first law of nature: in most government it has been the study of rules to confirm this right within the narrowest limits possible,” Tucker emphatically declared. “Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color of pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
Anti-Federalists, as noted by Reason’s Damon Root in 2016, were also explicit in their belief individuals should be able to own firearms. “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game,” Pennsylvanian Anti-Federalists wrote in their dissent during the Convention in 1787. “(A)nd no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.”
Now, here is where Waldman gets into murky history. “Back in the time of the founding there were gun laws,” He argued. “For example, in Boston you were not allowed to have a loaded weapon at home because they tended to explode and set fire to houses.”
Waldman’s statement is true, from a certain point of view. The law was passed in 1782, but overturned in 1801 when the government said 25 pounds of gunpowder could be stored in buildings, then modified in 1808. Why Waldman didn’t include these laws in his video could be because it doesn’t go with the narrative of not allowing loaded weapons inside buildings.
There’s also a problem with Waldman’s comments on whether University of Virginia banned firearms in 1824. It’s definitely true Thomas Jefferson and James Madison were on UVA’s board which approved this resolution:
No Student shall admit any disturbing noises in his room, or make them any where within the precincts the University, or fire a gun or pistol within the same, on pain of such minor sentence as the faculty shall decree or approve. but the proper use of musical instruments, shall be freely allowed in their rooms, and in that appropriated for instruction of music.
But the resolution also included this statement:
Substitutes in the form of arms shall be provided by the Proctor, at the expence of the University; they shall be distinguished by numbers, delivered out, recieved in and deposited under the care and responsibility of the Instructor, in a proper depository to be furnished him; and all injuries to them by a student shall be repaired at the expence of such Student.
There was no blanket ban on firearms at UVA, even if they weren’t allowed in dorm rooms. It should also be pointed out regents banned tobacco, alcohol, dogs, horses, servants, or sticks on campus, and for students who lived off-campus, except for with their parents. The reason UVA was allowed to set these rules is it was essentially a private school. University funding was much different in the 1820s than it is now where the school gets $145M+ from the state. Gene Zechmeister at Thomas Jefferson Foundation wrote Jefferson lobbied Virginia for money to build the university, including the library, and purchasing text books. Teacher salary was paid through university tuition, and it appears board was $15-16 per year for students. Waldman should have at least noted the other rules and regulations, and why UVA was allowed to put them in place before declaring a “blanket ban.”
Perhaps Waldman’s most egregious mistake is ignoring firearms policy in the U.S. before 1980. He says the Supreme Court didn’t rule the Second Amendment meant people could own guns until 2008. But this ignores the 1886 Presser v. Illinois Supreme Court case where justices said this (emphasis mine):
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Justices did rule states could make some laws on gun regulation, but that changed, as you’ll see below.
Waldman is also incorrect in suggesting the NRA was behind a 30 year campaign to “change how we saw the Constitution,” while also declaring, “our understanding as a country of what the Second Amendment meant not because of some dry words scratched on parchment but because the gun rights lobby poured its energy into changing our view of the Constitution.”
It was Cato Institute who filed the lawsuit over Washington DC’s gun ban, under the notion of personal liberty. Robert Levy even told The New York Times he didn’t care about guns or wanted the suit to be associated with the gun lobby.
“We didn’t want this case pictured as another case sponsored by the usual suspects, which is to say the gun community,” Mr. Levy said. “Basically we wanted this to be a grass-roots public interest case, so I decided to fund it.”…
Mr. Levy and his colleagues, Alan Gura and Clark M. Neily III, have worked hard to make what they say are modest claims. They said they were inspired by the work of Thurgood Marshall, who masterminded the litigation campaign against racially segregated schools.
“We didn’t want to be going to the court with a radical case,” Mr. Levy said. “All we are asking is to let law-abiding residents of the District of Columbia possess functional firearms to defend themselves where they live and sleep.”
One other thing to note…the NRA wasn’t in favor of the suit. Via NYT:
The road to the Supreme Court has been a bumpy one, Mr. Levy said, thanks mostly to the National Rifle Association.
“The N.R.A.’s interference in this process set us back and almost killed the case,” he said. “It was a very acrimonious relationship.”
“Their thinking was,” Mr. Levy said, “‘good case, might win in the appellate court but it could be a problem if it reaches the Supreme Court.’”
Wayne LaPierre, the N.R.A.’s chief executive officer, largely confirmed that characterization. “There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written,” Mr. LaPierre said.
It’s obviously easier for gun control pundits to blame the NRA because they get the most press, and are the ones people go to for comment. The reality is there are plenty of people who own guns who are not involved in the NRA, and aren’t interested in being a member. There’s also the reality of the Second Amendment’s history and how the Founders did care about the right to bear arms as a palladium of liberty. Waldman should know better, especially since he’s a constitutional lawyer. But politics trumps everything.