Bordering on the Frivolous? The Right to Bear Arms Yesterday and Today

By Eliga H. Gould

As I read the stimulating essays in this forum by Robert Churchill, Andrew Fagal, and Noah Shusterman, my thoughts kept turning to the late Antonin Scalia’s opinion in District of Columbia v. Heller (2008), the landmark case in which five of the Supreme Court’s nine justices affirmed an individual right to bear arms.  In particular, one phrase stood out: “bordering on the frivolous.”  For anyone who hasn’t read the opinion, this is how the famously combative justice dealt with the proposition “that only those arms in existence in the 18th century are protected by the Second Amendment.” “We do not interpret constitutional rights that way,” explained Scalia.[1]  Case closed. 

But history is rarely so clear cut.  As this forum reminds us, the right to bear arms during the later eighteenth and early nineteenth centuries was quite different from what it is today.  The most obvious difference was technological, which is the subject of Andrew Fagal’s excellent contribution.  In 1791, the year that the Second Amendment was ratified — and a year before Joseph Gaston Chambers first pitched the idea of a repeating gun to the U.S. War Department — the typical firearm was a muzzle-loaded flintlock.  When the bore was smooth, muskets could be loaded and discharged up to three times a minute, but they were notoriously inaccurate.  Rifles had the opposite problem.  Although projectiles fired from grooved bores could kill and maim across great distances, friction from the rifling made reloading a laborious, time-consuming process.  No wonder that inventors and entrepreneurs saw such potential in guns like Chambers’ multi-barreled musket.  It is also unsurprising, though, that their schemes repeatedly failed.  For the Second Amendment’s framers, the idea of a firearm that could discharge twenty rounds a minute was just that:  an idea.

Because of these limitations, eighteenth-century guns were most effective when fired collectively in mass volleys, something only a regular army or well-regulated militia could consistently do.  Although John Locke did not have much to say about bearing arms, pro or con, this may be one reason why the English philosopher was so untroubled — as Robert Churchill perceptively observes — about the possibility that giving the people a right to change their government would allow malcontents to foment civil unrest.  Having lived through both of England’s seventeenth-century revolutions, Locke had seen how vulnerable the Stuarts were to armed resistance.  But in an era when guns were cumbersome to use, using them effectively required training and discipline that only a government body could provide.  Even in New England, where armed citizens took the lead in resisting the king’s soldiers in 1775, the Minutemen who fought at Concord’s North Bridge and Bunker Hill were organized, trained and, often, equipped by town governments.  The danger of a lone shooter making his own law was a danger that neither Locke nor the authors of the Second Amendment had to worry about.  Only with the perfection of multi-chambered rifles and pistols, most famously by Samuel Colt during the 1830s and 1840s, did firearms become a truly lethal form of personal empowerment.

Yet another difference between then and now is that the right to bear arms in 1791 was not one right but two. The first was negative and concerned individual rights such as the right to hunt and to protect personal property. This is the right that Justice Scalia upheld in Heller, and it is how most Americans understand gun rights today.  But the right to bear arms was also a positive right or, as Noah Shusterman’s fine essay shows, an “obligation to go to war.”  During the wars of the French Revolution, the National Guard, as France’s revolutionary militia was called, enabled both the French Republic and its Napoleonic successor to mobilize ordinary citizens to a degree that Europe had never before seen.  Although not as extreme, the same dynamic was evident in Britain.  Despite language in the English Bill of Rights (1689) that guaranteed a right to bear arms, authorities made sure that people who exercised the right did so in “select” militia units under the crown’s control.  In 1757 and 1758, Parliament tightened the screws further, turning the English militia into a conscripted auxiliary of the regular army and triggering the worst rural riots of the eighteenth century.[2] In Britain, the militia was more likely to suppress a popular revolt than it was to start one.  Only in the United States were militia units independent of the Federal government, yet they remained under the control of the states and could be federalized in national emergencies. During the Whiskey Rebellion of 1794, more than 12,000 state militiamen accompanied President Washington’s Western Army to Pittsburgh.  In a widely noted irony, their objective was to uphold Congress’s right to tax U.S. citizens.

Although history need not yield the same conclusions as the law, none of these differences is, it seems to me, frivolous.  In the hands of a single individual, firearms in 1791 were defensive weapons in ways that modern guns are not.  In the contemporary United States, a lone shooter with minimal, if any, training can inflict casualties on a scale far in excess of the massacres that colonial patriots once blamed on British regulars.  Today’s armed men are all too often connected to the world around them by a cell phone or internet hookup, and nothing else.  They could not be less like the farmers who mustered on Lexington Common in defense of their families and their communities.  The past, we are often told, is another country.  When it comes to the right to keep and bear arms, the aphorism seems particularly apt — even if the law has yet to take notice.

Eliga Gould is professor and chair of the Department of History at the University of New Hampshire.  His most recent book is Among the Powers of the Earth:  The American Revolution and the Making of a New World Empire (Harvard, 2012).  A 2016 Fellow of the John Simon Guggenheim Foundation, he is currently writing a global history of the Treaty of Paris (1783) that ended the American Revolutionary War.

Title imageAmos Doolittle, The Battle of Lexington, April 19th, 1775 (reproduction [n.d.]; orig. publ., 1775;).  Library of Congress, Prints and Photographs Division, Washington, D.C., http://hdl.loc.gov/loc.pnp/ppmsca.39753; accessed October 7, 2016.

Endnotes:

[1] District of Columbia v. Dick Anthony Heller, 554 U.S. 570 (2008), 8.

[2] Eliga H. Gould, The Persistence of Empire:  British Political Culture in the Age of the American Revolution (Chapel Hill, N. C.: University of North Carolina Press, 2000), chap. 3.

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