This article originally appeared on our substack
By Ravi Gupta – Founder & Co-Host of The Lost Debate
If you’re anything like me, you’ve recently found yourself on the receiving end of many questionable claims about America’s unique problem with firearms. Maybe it’s the “good guy with a gun” argument or the “guns don’t kill people, people kill people” claim. These are important and prominent arguments to engage with, but as I’ve delved into them, I’ve found deeper, even more flawed stories underpinning the gun rights camp: claims that have gone largely unchecked in the public square. Today, I take on three of those myths.
The text of the Second Amendment contains 27 of the most misunderstood words in American history: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
It’s generally assumed in political discourse that this language guarantees an individual the right to own a gun. But you may be surprised to know that the Supreme Court didn’t recognize such a right until 2008. That’s because of the inclusion of the words “well regulated Militia.” To get a sense of what the founders meant by this phrase, we can look to the original version of the amendment from the House of Representatives. That text included the following provision about conscientious objectors: “… no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This original wording implies that the amendment was written with a narrow set of circumstances in mind — namely, organized combat.
Given the amendment’s limiting clause and history, until very recently even the most conservative legal thinkers dismissed the idea of an unfettered individual right to possess a firearm. The court had four opportunities to rule on the nature of the Second Amendment between 1876 and 1939 and each time declined to recognize an individual right to gun ownership outside of the context of militias. Yet here we are in 2022, with the court poised to overturn a New York law restricting concealed carry of a firearm. In other words, they not only believe in an individual right to possess a gun but may very well believe in a right to carry one in public.
To what do we owe this change? Here’s Michael Waldman from the Brennan Center for Justice, writing in Politico:
The NRA’s Second Amendment revisionism has been so successful that if you question this individual right today, you’re viewed as extreme. Yet only a few decades ago, the proponents of such a right were the fringe. Conservative Chief Justice Warren Burger, a Nixon appointee, once called the idea of a personal right to firearms “a fraud on the American public.”
For a full account of how we got to this point, you should read Waldman’s piece in its entirety. He chronicles a sophisticated campaign that combined grassroots electoral organizing, legal infrastructure, and a lot of patience. For an abbreviated version of that history, let’s turn to another myth.
As late as the 1960s, Republicans were as likely as Democrats to support gun control. Here’s Harvard historian Jill Lepore:
In fact, the NRA throughout much of the twentieth century bore little resemblance to the uncompromising, partisan organization of today. Their motto as late as 1957 was “Firearms Safety Education, Marksmanship Training, Shooting for Recreation.” After JFK’s assassination, they supported a ban on mail-order gun sales and even supported the 1968 Gun Control Act, which, among other things, prohibited certain high-risk individuals from purchasing firearms and banned the importation of military-surplus guns.
It wasn’t until the 1970s that both the NRA and the Republican Party came to argue that the Second Amendment guaranteed an individual right to gun ownership. Their dramatic shift was driven in large part by backlash against increased immigration in the aftermath of President Johnson’s 1965 Immigration and Nationality Act, which dramatically increased immigration from the developing world. Here, again, is Jill Lepore, describing the turning point:
The NRA’s old guard forced Carter out, but he swiftly staged a comeback and succeeded in ousting the NRA establishment leaders and rewriting the organization’s bylaws. The new motto of the NRA became “The right of the people to keep and bear arms shall not be infringed.” You may notice that the first clause of the amendment, the critical language around “well regulated Militias,” was noticeably omitted.
By the 1980s, the organization, and the larger conservative movement around it, had completely transformed. Under their new leadership, the NRA endorsed Ronald Reagan in 1980, the first time they’d ever explicitly supported a presidential candidate. By this point, Reagan’s metamorphosis had come so far that he not only opposed any bans on assault weapons or background checks, he maintained his opposition even after he and his press secretary were shot in an assassination attempt.
The new NRA leadership also presided over a full-out assault on prevailing Second Amendment legal scholarship. Of the 27 pro-gun law review articles published between 1970 and 1989, no fewer than 19 were written by authors employed by or affiliated with the NRA or other gun rights groups. Conservative Senator Orrin Hatch, then a powerful member of the Senate Judiciary Committee, commissioned a history in 1982 that claimed that the Second Amendment had been misinterpreted since our founding and “was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”
From that point forward, it has become increasingly impossible to get elected to federal office as a Republican or appointed as a federal judge if you don’t adopt the NRA’s interpretation. Today, all but three GOP senators have an “A” rating or above from the NRA. An unbridled individual right to gun ownership has become one of the most distinctly partisan issues in America.
Earlier this week, Joe Rogan weighed in on the gun control debate, stating the following on his podcast:
One could argue that Rogan is channeling the original spirit of the Second Amendment. He’s making an argument popular among the pro-gun crowd: that the founders were paranoid about giving the government a monopoly on the use of force. After all, at the time of the Constitution’s drafting, state militias were viewed as a check against tyranny.
The problem is, as I write above, that the founders vested the right to bear arms in state militias, not individuals. It’s also hard to imagine a world in which the kinds of arms Rogan likely has in mind would do anything to stop a truly tyrannical government. The federal government has tanks, fighter jets, and nuclear weapons. No sensible person would argue an individual has the right to any of that advanced weaponry. All it would take is one unhinged Buffalo-massacre type with a nuclear weapon, and we’d all be toast. That means we all apply some form of limiting principle to the amendment, even if we draw the line in different places.
Whether we like it or not, the government already has a de facto monopoly on violent force. And, to be honest, I’d take that world over the alternative of QAnon-addled lunatics armed with military-style weapons and some inherent “right” to take on the state. So, when Rogan argues that our government is already tending toward authoritarianism, and that arming the public would serve as a bulwark against that overreach, I’d want to know more about his vision. What kinds of situations, and what kinds of arms, does he have in mind?
It’s hard to imagine a band of armed citizens winning a shootout with the federal government, unless it’s a protracted and widespread guerrilla war (or unless the right to bear “arms” expands to include more advanced weaponry).
And, given what a disorganized and unhinged group was able to accomplish on January 6th, I’m not sure I’d want to make violent insurrection against the government any easier.