False Claim #1: The Right to Keep and Bear Arms Has Always Been Heavily Regulated.
FACT: Restrictive gun control laws are a distinctly modern phenomenon in the United States. For the first century of American history, serious state-level regulation of individual gun ownership or usage was almost non-existent for law-abiding citizens. For example, despite oft-repeated claims to the contrary, nothing prohibited private citizens from owning cannons. In fact, private cannon ownership was apparently so common that one of the first types of arms restrictions imposed by some towns were ordinances restricting the times and locations where people could fire off those cannons inside town limits.30 Similarly, because gunpowder at the time was very unstable and prone to easy ignition, a number of states and cities limited the amount of gunpowder that could be stored in private residences, hoping to reduce the risk of accidental explosions or fires in urban areas.31 But beyond these sorts of “time, place, and manner” regulations, the right to keep and bear arms was virtually unrestricted in most states until the end of the 19th century.
Restrictive gun control measures are an even more recent phenomenon at the federal level. The first major federal law regulating firearms was the National Firearms Act of 1934, which was relatively tame by today’s standards.32 It merely required that machine guns and certain types of “short-barreled” long guns be subjected to a special tax and be registered with the Secretary of the Treasury. The federal government did not even prohibit certain categories of individuals (such as felons) from possessing firearms until the Gun Control Act of 1968, and did not require licensed gun sellers to conduct background checks until the 1993 Brady Handgun Violence Prevention Act.33
False Claim #2: Armed Civilians Stand No Chance Against Modern Militaries Equipped With Fighter Jets and Tanks, so the Second Amendment No Longer Serves a Purpose.
FACT: This claim misunderstands the importance of the protective role of federalism, in which each state already has well-trained and well-equipped organized militias of their own that can be mobilized and used in tandem with armed civilians. These National and State Guards are better equipped than the entire national militaries of many countries, with their own fighter jets, tanks, heavy artillery batteries, and special forces units. A handful of states even have their own naval militias. It is highly likely that, should a tyrannical federal government attempt to impose its will with the might of the American military, these state-level military entities—acting under the direction of liberty-loving state governments—could be deployed as a meaningful countermeasure, just like the colonial governments mobilized existing militias against the British army during the American Revolution.
Likewise, in the case of sudden foreign invasion, armed civilians would not be expected to act on their own in some ad hoc or unorganized fashion. Just like the colonial militias worked together with the professional soldiers of the Continental Army, armed civilians and their private weapons would, during any modern invasion, be integrated into the nation’s existing military structure and mobilized according to a coherent national or state defense strategy.
Beyond this, the right to keep and bear arms continues, of course, to protect countless Americans in their everyday lives against far more common threats to life and liberty.
False Claim #3: The Founders Had Little Understanding of How Firearm Technology Would Develop and Would Be Horrified to See Modern “Assault Weapons” in Civilian Hands.
FACT: This common assertion assumes that modern guns have a fundamentally different nature than weapons that were available in 1791 when the Second Amendment was ratified and 1868 when the Fourteenth Amendment was ratified. In reality, small arms have changed very little, especially when compared to other advances in technology. The Founders would likely be far more dumbfounded by the internet or smart phones—and their implications for the First and Fourth Amendments—than they would by guns that merely fire projectiles at a faster rate without having to reload them as often. Indeed, by 1791, the idea of rapidly firing dozens of bullets in quick succession or even at the same time was already well developed. By the time the Second Amendment was ratified, repeating rifles capable of firing more than 10 rounds in rapid succession had been around for centuries. By the time of the Fourteenth Amendment, their possession and use by ordinary Americans was very common.34 If anything, modern firearms are much “safer” than 18th and 19th century firearms because they are far less prone to accidental discharges or misfires that injure the shooter.
But, most importantly, this is simply not how we understand constitutional rights. Just like the Constitution protects the broad concept of “speech” instead of particular modes of speech, it protects “arms” as a general concept of weaponry. The idea was not to protect a specific type of weapon, like a musket, any more than the idea of the First Amendment was to protect a specific mode of speech, like a quill pen or printing press. That is in large part because the Framers of our Constitution and the people who ratified it knew that while technology and circumstances would undoubtedly change in unanticipated ways, these broader concepts of self-defense and free speech would remain vital to a free society.
ENDNOTES:
30. See, e.g., 1832 N.h. Laws 73–74, An Act To Establish A System Of Police In The Town Of Portsmouth, And For Other Purposes, Ch. 34, § 4; Act Incorporating The City Of Cincinnati, And The Ordinances Of Said City Now In Force (1832) (Prohibiting Any Person On A Boat In The Ohio River From Firing A Cannon Toward Cincinnati While Passing The City); The Revised Charter And Ordinances Of The City Of Detroit § 9 (1848).
31. See, e.g., “An Act for the better securing the city of Philadelphia and liberties from danger of gunpowder,” Act of Dec. 6, 1783, chap. 1059, 11 Pa. Stat. 209 (Sections I & II); “An Act to Prevent the Danger Arising from the Pernicious Practice of Lodging Gun Powder in Dwelling Houses, Stores, or Other Places Within Certain Parts of the City of New York, 1784 N.Y. Laws 627; “An Act to Prevent the Keeping of Large Quantities of Gun-Powder in Private Houses in Portsmouth,” 1793 N.H. Laws 464-65.
32. Pub. L. 73–474 (1934).
33. Pub. L. 103–159 (1993).
34. David B. Kopel, The History of Firearm Magazines and Magazine Prohibitions, 88 ALBANY L. REV. 849 (2015).
