Growing up on a ranch in the Yellowstone-Teton nook of Idaho, I learned to target shoot with a rifle by the time I was eight years old and to hunt before I was ten.
The fathers of kids my age had served in WWII a decade before, and members of the National Guard let my Cub Scout troop fire a huge Browning Automatic Rifle at a bucket placed a hilltop away while laying prone.
At one time I believe I belonged to the NRA but it was the kindler, gentler, “sportsmen-like NRA of 1962 when I earned my Boy Scout merit badge in marksmanship.
The then-100 year old NRA began to change the next year with the assassination of President John F. Kennedy and subsequent proposals for stricter laws controlling guns, four months before I would become an Eagle.
In 1966 the Boy Scouts of America dropped the marksmanship merit badge, and by 1968 the year both JFK’s brother, Senator Robert F. Kennedy and the Reverend Martin Luther King, Jr. were also assassinated, NRA leaders were testifying before Congress in favor of gun restrictions.
During this era that saw passage of the Civil Rights Act preceded and followed by race riots, immense cultural change and anti-war protests, the NRA split between sportsmen (hunters and target shooters) and gun-rights hardliners.
By my mid-20s, the NRA was lobbying Congress to believe that gun violence was “a price we pay for freedom.” Before I turned 30 years old, the hardliners were in complete control of the organization. It has been nearly 40 years since its days of reason regarding gun control.
Today, representing about 15% of the US population overall, the number of overall sportsmen and sportswomen (fishers and hunters) who identify themselves as conservationists outnumbers those who belong to the NRA by 3 to 1.
However, of this 15%, about 37% believe that gun rights are the most important issue facing sportsmen and sportswomen including 59% of the 25% who belong to the NRA. The majority (44%) of sportsmen live in the South.
Many believe - and I agree - that the national conversation in the wake of the tragedy at Sandy Hook should be as much about the origins and meaning of the Second Amendment as it is about gun rights vs. gun control.
We as Americans support the Second Amendment but is it an individual right or a collective right? Is it about Rambo or Major Kirby, Timothy McVeigh or SEAL Team 6, Death Wish or Abraham Lincoln? As with so much about our country’s founding, the complexity of this simple amendment can only be understood in the context of slavery.
More known today for his excellent historic overview of American Conservatism, law professor Carl Bogus first came to my attention in 1999 when a friend from law school in the 1970s emailed me a 100+ page research paper by Professor Bogus on the Second Amendment.
The paper had been published the year before in the UC Davis Law Review as part of a series at the Roger Williams University School of Law where he teaches. In 2001, it was turned into a book.
Bogus begins his paper by noting that much of what we think we know about the Second Amendment is myth, stating that, “It is not myth in the sense that the images are wholly divorced from historical truth. Rather, myths can be powerful and sinister because they blend fact and fiction.”
He continues by writing, “Myths do not so much misrepresent as mislead, not so much concoct as distort.” He concludes the paper by noting, “The Second Amendment takes on an entirely different complexion when instead of being symbolized by a musket in the hands of a minuteman, it is associated with a musket in the hands of a slave holder.”
Many people in both the North and South at the time of this country’s founding were against slavery. The difference Bogus writes is that in the North they preferred emancipation, in the South deportation because they were afraid not just of losing an economy but their lives.
Slaves had revolted some 250 times by then so the fear was real. As Bogus explains the nature of slave patrols which by the time of the American Revolution had become the role of local and state militias in much of the South, one of the reasons many states were reluctant to deploy them when requested during the war.
At the center of this research paper is the pivotal 1788 convention held in Richmond to consider Virginia ratification of the US Constitution. At issue, Bogus documents in his paper, was the fear that the new federal government might enlist blacks in the army, emancipate them and turn them against the South or call the militias away from their assigned task to control slaves.
The right to bear arms had already been written into the constitutions of 4 of the 13 states. However, in two of those instances, Massachusetts and my adopted home of North Carolina, which refused to ratify the US Constitution until it was amended to include similar rights, the right to bear arms was a collective not an individual right.
James Madison, a slave-owner supporter of the Constitution, came to embrace any of the Bill of Rights reluctantly. Bogus makes the case that Madison believed these rights were already included within the structure of the US Constitution.
At the time, insistence on a bill of rights was often a tool to subvert approval of the Constitution. Madison’s hand was forced when Patrick Henry, in one of the first instances of “gerrymandering”, threatened Madison’s seat in Congress.
Madison apparently used a number of “rights” documents from which to edit the Bill of Rights that became amendments to the US Constitution. These included those approved 100 years earlier in England and meant to define the rights of Parliament vs. the King, those drafted by other states and a lengthy version drafted by George Mason who opposed ratification.
Bogus thoroughly documents that for the most part, Madison was working from background materials that viewed the right to bear arms as collective, not individual. The term militia at the time was well defined and did not include the paramilitary, or other types of self-formed militias we know all too well today.
Madison inserted the word “security,” Bogus argues as a signal to southerners about slave control. He did not see guns as an individual right but to “set limits on congressional power” so it would not be used to disarm militias, a part of the ongoing compromise over slavery.
Bogus makes the case that it was at Richmond, during the convention for Virginia to ratify the US Constitution, that “concerns about slave control and federal authority over the militia were united, producing a new rationale for the right to bear arms.”
However, he discredits the notion that the founding fathers were insurrectionists, in part by reviewing insurrections such as Shay’s Rebellion in 1787 while ratification of the US Constitution was underway.
States after the revolution were often divided into those in which debtors were in control and others under the control of creditors. Important to the evolution of the US Constitution was the importance of not being a deadbeat regarding financial obligations, as it is today.
In 1949, the year after I was born, Supreme Court Justice Robert H. Jackson, fresh from prosecuting Nazi war criminals in the aftermath of WWII, wrote a dissenting opinion in a case where the majority had overturned a Chicago ordinance that banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" on the basis that it was unconstitutional.
As Bogus quotes, Justice Jackson wrote:
“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
It is time in our debate over management of firearms and the Second Amendment for a little “practical wisdom.”
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