Courts should seek doctrinal principles that bear even-handed application across different contexts with differing ideological implications.
The debate concerning the Second Amendment and gun control is often framed as a clash between those that consider “the right to keep and bear arms” as an essential part of being an American and those who consider “America’s Gun Culture” to be one of many sub-cultures in the United States, albeit a dangerous one that is not representative of the whole. Or to phrase the debate as a query: is the right to keep and bear arms an intrinsic feature of America’s free society?
There is the text of the Second Amendment itself, but there is no concurrence on how to interpret it between those who believe in a robust right of self-defense and those who favor restrictions on guns and ammunition as well as their accouterments. This latter group typically focuses on what Antonin Scalia in District of Columbia v. Heller called the prefatory clause of the Amendment concerning the militia.
But surely the history of the United States from the Pilgrims through the Revolutionary War will give us the historical context of the Second Amendment, and in particular, what is meant by, for example, “militia” or “arms.” Likewise, Americans’ attitudes and uses of guns from the late 18th century to the present day will tell us how the Second Amendment has been manifested in the lives of Americans. David Harsanyi’s First Freedom: A Ride Through American Enduring History with the Gun offers a well-researched and an enjoyable read as the answer to this question: is the right to keep and bear arms part of America’s freedom culture just as the rights of the First, Fourth, and Fourteenth Amendments are, or is it merely a Revolutionary War relic like the Third Amendment? Harsanyi affirms that the Second Amendment is America’s First Freedom—it is the freedom that all of the other individual rights rest on, and remains as important today as it was when it is was ratified.
Whereas Chris Kyle’s posthumous American Gun: A History of the U.S. in Ten Firearms was informative and entertaining with its mix of history and the personality of the Navy SEAL sniper author, Harsanyi’s First Freedom can be thought of (pace Howard Zinn) A Gun’s History of the United States—albeit unlike Zinn’s Marxist fable, one offering an accurate history of firearms in American life.
Harsanyi traces the history of the United States through the gun from the pilgrims to contemporary times by focusing on the inventors of the guns, the users of the guns, and the society that these guns were reflective of, with some philosophical ruminations and political points along the way.
Paul Revere’s Ride for the First Freedom
In colonial times, Americans would typically keep their individual supply of gunpowder in the regional British magazine for safety reasons due to the volatile nature of black powder. As a result, in the lead up to the Revolutionary War, the British would attempt to seize the Colonial gunpowder, and a number of times they did so successfully. While the story Paul Revere’s Ride on April 18, 1775 is famous for warning that the “Redcoats are coming,” the popular account of this never expresses what the British were coming to do.
Harsanyi reminds his readers of an important point: The Redcoats were coming to confiscate Colonial gunpowder and muskets. Revere had ridden to Portsmouth, New Hampshire months earlier with a similar warning when the British planned to appropriate the gunpowder and munitions at Fort William and Mary. Thus, the Battle of Lexington and Concord (April 19), the first clash of the American Revolutionary War, was immediately precipitated by the British attempting to confiscate firearms and gunpowder. Of course, Colonial Americans had a number of grievances against the British, but the Crown’s repeated attempts to confiscate firearms or gun powder were certainly among them. The most significant one was this direct infringement on the right to keep and bear arms. Revere was not an outlier in his concern for keeping Colonial ammunition away from the Crown, but rather an exemplar.
While guns themselves have been a target of gun control legislation since the 1930s (when the first Federal Gun Control Acts were passed under Franklin Roosevelt), in such progressive states like California, the manner in which ammunition can be purchased and stored are becoming restricted as well. For example, it is illegal in California to bring ammunition into the state from another one such as the neighboring gun-friendly Nevada or Arizona. Further, ammunition in such progressive states, counties, and municipalities is becoming subject to sin taxes, background checks, and limitations on how much one can purchase within a given timeframe. While one can make the nice-sounding, albeit fallacious, argument that the Founders never intended for the Second Amendment to apply to modern semi-automatic rifles, these restrictions on ammunition are ones that the Founders would have found unduly burdensome and a violation of man’s inherent right to self-defense—for the Founders the confiscation of gunpowder and munitions was a casus belli.
Colt’s Peacemaker: Making All Men Equal
Samuel Colt (1814 – 1862) was the inventor of the repeating revolver, and demonstrated his genius by finally determining how to create such a gun with a single barrel rather than with, say, six barrels as had been done previously. While he had great abilities as an engineer, promoter of his guns, and as a businessman (his factory in Hartford, CT was an exemplar of manufacturing efficiency), Harsanyi notes that Colt “was no free market fan, using lawyers and government contracts to undermine competition. He could, by today’s standard, rightly be accused of embracing crony capitalism and rent seeking.”
Perhaps this last attribute of Colt’s, unfortunately, says something about American culture as well. While Harsanyi does not dwell on this point, it would have been appropriate for him to elaborate on why such behavior is antithetical to a rightly ordered view of capitalism. Further, Harsanyi should have drawn out the contradiction of Colt’s Peacemaker being a manifestation of liberty while at the same time his business practices being an ailment of unfree markets.
In addition to lobbying the military to purchase his guns for use, Colt directly approached military men such as Zachary Taylor, Franklin Pierce, and Jefferson Davis to garner their support for his firearms. But Colt was not satisfied with just the military employing his firearms—he also wanted the average American to be able to have them as well. Thus, by the mid-1850s one could order a six round single-action revolver:
through the mail for the somewhat affordable price of $17 and have a light but powerful weapon within weeks. And selling guns to civilians—every civilian, if possible—would be Colt’s principal goal… Embedded in his guns were the adventurous attitudes of the era, the Western impulse and individualistic notions, patriotic fervor, and American life.
The prefatory clause of the Second Amendment states that a well regulated (i.e., well trained) militia is necessary for the security of a free state. In other words, citizens need to be competent in the use of firearms—since as Harsanyi shows in his early chapters on the Colonial period that militiamen used their personal arms for training and in the early battles of the Revolutionary War. Thus, the first freedom is not only the right of individual self-defense, but of the right of individuals to defend their nation. Colt’s straightforward and powerful Peacemaker exemplified American liberty, and in particular, the first freedom since it was used both by the military and the citizen.
Freedom’s Litmus Test: the AR-15
If there is a single gun that represents the tension between those with a robust view of gun liberties and those that believe in its restrictions, it is the AR-15. Eugene Stoner, who created a number of rifles for ArmaLite (hence the “AR”) was a former Marine and self-taught engineer. In the 1950s, the patents of the AR-10 (7.52x51mm NATO/.308 Win) and AR-15 (5.56x45mm NATO/.233 Rem) were sold to Colt Firearms, who like ArmaLite before them, sold the semi-automatic versions of the rifles “directly to the civilian marketplace before they ever agreed on large military contracts.” While the civilian versions are semi-automatic, the military versions have additional “burst” (3 rounds per trigger pull) or fully automatic capabilities. The semi-automatic AR-15 is democratic, modular, lightweight, accurate, and has relatively inexpensive ammunition which is why it is so popular for target shooting, hunting, and self-defense.
There are millions of AR-15s and similar rifles (so-called assault rifles) in the United States and they are rarely used for crimes. However, since they have been used with deadly and tragic effect by a handful of mass murderers, there is a never ending chorus that says that these rifles should be banned (and, in fact, they were during the Clinton Years and currently are in a number of progressive states like California and Connecticut). The AR-15 is the contemporary litmus test for the interpretation of the Second Amendment. Does the “right to keep and bear arms” include the AR-15 or does it not?
But just as Colt’s Peacemaker was the weapon that epitomized the right to keep and bear arms for the late 19th century America, the AR-15 and similar rifles are the analog for the first freedom today. The cumulative lesson of America’s history of the gun is that effective resistance to tyranny and lawlessness requires weapons that challenge those in power. In other words, a well-trained militia and properly-armed citizenry is a buffer between the disposition for despotism of the government on one hand and the anarchy of the criminal on the other. Or in Aristotelian terms, the gun is the golden mean between the excesses of government and the deficiencies of villainy. It is the gun that is the bulwark of all other freedoms; and without the liberty of self-defense, one is left with an impotent and shallow liberty that always lives at the whim of the tyrant and in fear of the malefactor.
Harsanyi concludes his book with reflections on the gun control debate, where he summarizes his historical research by stating:
“Gun culture” is no less part of American life than “religious culture” or “speech culture.” As our history unambiguously illustrates, gun culture is inextricably tied to American culture.
Clarence Thomas has warned that the Second Amendment is becoming a “Constitutional orphan,” but to orphan the right to keep and bear arms means radically transforming the American culture of life, liberty, and the pursuit of happiness—a culture guaranteed by the Second Amendment.
While Harsanyi makes a compelling historical case for “Gun culture” being an intrinsic part of American culture, he does not discuss how the progressive war on guns is not the only war on liberty that the Left is currently waging. The fundamental rights of free speech and religion have increasingly been under attack both through the soft tyranny of contemporary social media assassinations and the hard despotism of governmental coercion. In both cases, the victims are deprived of easy means of defense against public opinion or political power.
Barack Obama was correct when he said that Americans cling to their guns and religion. He was wrong, however, to think that they do so because of their bitterness, or because, as Hillary Clinton would have it, they are deplorables. Rather Americans are adhering to their guns, religion, and other unalienable rights because they are still Americans—attached to their liberties and willing to defend them.