Speaking of Cults

This podcast is actually a re-do of an earlier podcast which I had to pull because of some factual inaccuracies in my initial research and now we’ve got this put together properly so here we go. This podcast is not the only one I’ll be doing on this topic, but it’s the first and probably most important one because what I’m working to do here is lay out the factual history of how we got to where we are now on the subject of guns in the United States.

This show I’m calling “The Real History of the Second Amendment.” Hopefully a provocative enough title to get some attention but for any of you gun advocates out there, don’t worry because I’ve not filled this with any anti-Trump or anti-Second Amendment rhetoric. I have put this podcast together as objectively and honestly as I know how and I hope that any of you watching will hear me out to the end because I think there’s stuff here that you don’t know and will benefit from learning. What I’m doing in this show is tracing the history of guns going all the way back to before they even existed and then incorporate that into how the Second Amendment came into being, why our Founding Fathers wrote it in to the Bill of Rights in the first place and how it has fit into American history and our love of guns. So here we go.

The Second Amendment was written in a vastly different time from our current culture and concerns. None of the issues which are so heatedly discussed on social media and at town halls were even in the headspace of the colonials who founded America, so when looking at how we got to where we are now, we have to examine not just the context and intent of the Second Amendment at the time it was written, but the various interpretations of its words by the Supreme Court over the last 2.5 centuries. There have been some pretty radical changes, especially in recent times. First though, let’s go back to the beginning.

Killing people efficiently and effectively over a distance has been a problem for millenia. Throwing rocks may have been the first effort and somewhere along the way, the bow and arrow was invented. Our best data now indicates these were invented about 64,000 years ago in Africa and when men left their native country for India, Australia, Asia and Europe, they took their bows and arrows with them. This technology remained relatively unchanged until about 2500 BC when someone in Asia invented the composite bow using multiple layers of wood glued together which could bend a lot farther without breaking and were significantly shorter, so could be fired while riding a horse. This spread throughout the known world from Egypt to China and beyond.

However, as anyone knows who has actually tried it, hitting something with an arrow requires a great deal of practice and skill. Archers could be devastating as cavalry units but took a lot of time and resources to train. So around 450 BC, Chinese blacksmiths invented the crossbow. It was the first weapon meant for a relatively untrained individual to replace the bow and it was very effective.

Now fast forward 1300 years and we have a discovery that changed the world. The Chinese were quite good at mixing various compounds to medicines and other useful mixtures but they didn’t expect to invent gunpowder. This was discovered in 850 AD by Chinese alchemists who mixed sulphur and charcoal with saltpeter – a common name for potassium nitrate. Not yet knowing what they had done, they used this powder to treat skin infections but it had the unfortunate side effect of creating smoke and flames which burnt hands and faces and even the whole house where they were working burned down. Then someone realized that this might be better used to kill people than cure them and it was quickly put into use in the military against the invading Mongols.

Not long after, the very first weapon recognized as a gun was invented in the 10th century in China. These were bamboo or metal tubes which projected flames and shrapnel by packing gunpower in the tube behind metal shards. These were known as fire lances.

By the 1200s, gunpowder was exported to the Middle East by invading Monguls and to Europe, either over the Silk Road or also by Monguls, where it quickly was put to use in cannons to take down walled fortresses and castles which were previously damn near impossible to penetrate. These cannon changed the entire face of armed conflict.

Cannon first appeared in Italy around 1320 and spread quickly throughout Europe. However, there were problems with them. They weren’t very accurate, gunpowder was extremely expensive and the cannon operators hurt themselves as often as their targets.

Smaller hand cannons were created in Italy in the 14th century and the first handguns appeared in the mid-15th century in France when cannons were also essentially shrunk down to individual size. The invention of the lock – the firing mechanism – was the big break here and resulted in the arquebus. This created a new class of soldier, the infantry, and gave birth to modern warfare, although it would look quite different from what we’re used to today since it took two minutes to load just one shot and was still not a totally practical replacement for archers or bowmen.

Something important to note here is that the reason guns caught on at first was not because of how lethal they were, but because of how they equalized the players on the battlefield. Almost anyone could be quickly trained to load and fire a gun, whereas archers and swordsmen required years of training to be any good. This slowly but surely changed the entire nature of warfare, strategy and tactics. Inventors and innovators made guns more and more efficient at their single purpose – killing people – and thus made it more and more economically feasible to create larger and more powerful armies which could do more damage than anything that came before. The fact that guns could be used for any other purpose such as hunting or sport was completely ancillary to their main purpose, which was to kill other human beings.

So we come to the United States and the European colonists who originally came to settle it. Before the Europeans arrived, there were no guns in the Americas, but that doesn’t mean the Americas were a pastoral land of peace and tranquility which was ruined by the arrival of the white man. No, it was quite the opposite. The Native Americans across the plains of North America and the deserts and jungles of South America had developed quite a variety of lethal weapons including the bow and arrow, spear, tomahawk and knife. In South America, they had even created a kind of sword using obsidian embedded into the side of wooden clubs, with edges sharper than high quality, steel razor blades. However, the European developments were far in advance of what had been invented in the Americas. As anthropologist Jared Diamond pointed out, the advances of Eurasian society gave the Europeans three things that the Native Americans did not have: guns, germs and steel.

David Silverman, a professor of history at George Washington University, wrote:

“Germs refer to plague, measles, flu, whooping cough and, especially, the smallpox that whipsawed through indigenous populations, sometimes with a mortality rate of 90 per cent. The epidemics left survivors ill-equipped to fend off predatory encroachments, either from indigenous or from European peoples, who seized captives, land and plunder in the wake of these diseases.

“Guns and steel, of course, represent Europeans’ technological prowess. Metal swords, pikes, armour and firearms, along with ships, livestock and even wheeled carts, gave European colonists significant military advantages over Native American people wielding bows and arrows, clubs, hatchets and spears. The attractiveness of such goods also meant that Indians desired trade with Europeans, despite the danger the newcomers represented. The lure of trade enabled Europeans to secure beachheads on the East Coast of North America, and make inroads to the interior of the continent. Intertribal competition for European trade also enabled colonists to employ ‘divide and conquer’ strategies against much larger indigenous populations.”

But contrary to some popular belief, the Native American populations did not just stand by and get slaughtered. They were keen to trade with the new settlers and got their hands quickly on the guns and other superior bits of technology the Europeans brought with them. As Silverman wrote:

“In early Quebec, Jamestown and Plymouth, colonists held an advantage in firearms only for a handful of years before Native people began building their own arsenals. The founders of later colonies, such as Pennsylvania or Georgia, arrived to find indigenous people already furnished with the best gun technology Europe could produce and keen to acquire more. Except under the rarest circumstances, no one state authority had the ability to choke Indians off from guns, powder and shot. There were just too many rival imperial powers and colonies in North America, their governments were weak, and the trade ran through a labyrinth of unofficial channels.”

The point being that it took almost no time at all for armed conflict to occur between the Native Americans and the Europeans and between tribes too. In fact, guns became a kind of currency and various colonial interests competed with one another for the Natives support by placating them with weapons.

In the 1630s, the colonization of the US began in real earnest. English Puritans arrived by the thousands to create the colony of Massachusetts, and quickly spread into the Connecticut River Valley, Narragansett Bay and eastern Long Island. And the Mohawks were the first tribe to take advantage of the opportunities for trade in firearms. Within ten years, the Mohawk tribe had 400 muskets and plenty of ammunition, while the Iroquois had at least twice as many. And these Native American tribes did not hesitate to use them against other tribes for conquest and to take their resources.

In 1640, a major advancement in gun technology was the invention of the flintlock. The idea was that by using a bit of flint in the hammer, a spark could be created that would ignite a small bit of gunpowder which would in turn ignite the gunpowder packed in the gun’s barrel and that would launch a small round pellet or bullet. Loading and firing took as long as it would take to pour the gunpowder into the barrel, stuff the bullet down in there, cock the hammer, aim and pull the trigger. However, their range was not very far, they were noisy and created smoke so were not very good for hunting and, more often than not, were seen as a secondary weapon to a sword or knife. So it would be wrong to get the idea that every colonist or Native American was walking around packing heat.

However, by the mid-1700s there had been enough flintlocks brought over from Europe that the colonists managed to successfully wage open rebellion against Great Britain and gain their independence. The Revolutionary War went down and it’s been so well documented and described that there’s nothing more I have to add about that. Once it was over, it came time for the newly created United States of America to figure out what it wanted to do with and about guns. They ended up settling on the 2nd Amendment to the Bill of Rights which states:

“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.”

The US Constitution and Bill of Rights are unusual for many reasons, not the least of which is that we specify a right to bear arms. Out of the nearly 200 constitutions in the world today, only three include the right to bear arms: Guatemala, Mexico and the US and only ours does not include explicit restrictive conditions. There is no international law that gives the right to bear arms and in every catalog of human rights around the world, there is no human right to self-defense. According to human rights scholars, states are actually obliged to limit access to firearms as part of their duty to protect the right to life. There’s an important distinction there. You as a human being have the right to live and that right should not be infringed. You don’t have the right to kill. A cornerstone of every civilization on this planet is making this distinction and giving the state the power to enforce that its citizens do not indiscriminately kill one another. This is one of the most fundamental reasons we have societies and civilizations in the first place. To the degree any society has rampant and random violence against its members is the degree that society is not fulfilling its actual purpose.

So getting back to the early United States, why did the Founding Fathers feel compelled to add the Second Amendment to our Bill of Rights? Well, one reason was because that right had already been spelled out in the Pennsylvania Constitution of 1776, the first state constitution ratified following the Declaration of Independence. Article 13 stated “That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”

Additionally, when the Revolution was over, each newly independent state adopted the existing English common law except where such laws were explicitly rejected or nullified by American legislation. This is where many of our legal traditions came into force for the first time, including habeas corpus, trial by jury and the right to keep and bear arms.

However, if you dive deeper into the debates and conversations that were going on to convince the states to sign off on the Constitution, you find some interesting points being made about this Second Amendment. Actually, this time in American history is crammed with interesting facts and arguments, because not everyone was on the same page when it came to how our newly formed independent nation should be organized. There were Federalists and Anti-Federalists and they were duking it out over a number of issues.

Initially, our first attempt at a constitution between the 13 original colonies was called the Articles of Confederation and a Federalist was someone who supported these. The problem was that the Articles of Confederation had created a central government which lacked enough authority to actually be able to deal with issues with interstate relations, commerce and trade. Before the Revolutionary War was even over, it became apparent and something had to be done if this central government was going to work at all. This is why the Constitutional Convention was held in Philadelphia in 1787 and why the Articles of Confederation ended up being scrapped and our existing Constitution was drafted. The 55 attendees of this Convention are the people we now call our Founding Fathers.

It took them four months to get the work done of hammering out the Constitution, but once it got around to the states, not everyone was on board with a strong central or federal government. As their name implies, the Anti-Federalists were wary of anything resembling an English monarchy and opposed creating a strong central government. It was because of the Anti-Federalists, led by Patrick Henry of Virginia, that a Bill of Rights was created at all. During the debates in the Constitutional Convention, a Bill of Rights was suggested but in what has been called “a political blunder of the first magnitude” it was voted down and may have even been thought of as a kind of delaying tactic. The Founding Fathers had not predicted what a strong issue this would eventually become.

With the benefit of hindsight, we can see that many of the points of concern the Anti-Federalists had about the proposed 1787 Constitution had merit. They didn’t want too much power invested in the Office of the President for fear it would become tyrannical, they wanted the power of the courts clearly defined so we wouldn’t have an out of control judiciary and they demanded a Bill of Rights so common citizens would not be trampled by an over-reaching and all-too-powerful central government.

They didn’t have social media in the same way we do now, but the same level of passion we often see today over key political or social issues was the order of the day then too, including the use of aliases to disguise the identity of those who wrote pamphlets and articles advocating for their positions. This happened on both the Federalist and Anti-Federalist sides and the best of these have been compiled by historians into the Federalist Papers and the Anti-Federalist Papers. And the resistance to this new Constitution was not just academic. Judge William West of Rhode Island, for example, led 1,000 armed men to a celebratory rally to protest how the new Constitution was being passed elsewhere. Interesting, Rhode Island was also the one state that refused to send any delegates to the Constitutional Convention in the first place. While everyone was happy to be out from under the yoke of British rule, the new United States were not really very united.

The number one point of contention really came down to civil rights. What would citizens have the right to do under this new government and how would a new tyranny be prevented? These were the questions on most people’s minds and they were answered in the Bill of Rights which were issued and ratified immediately following most of the states’ approval of the Constitution itself.

It was funny to me to find in researching all this, that James Madison, one of the darlings of the NRA and who is often quoted in support of the Second Amendment, actually opposed the entire idea of the Bill of Rights from the very beginning. He was a Federalist and felt the state governments would take care of personal liberty issues, which he wrote about in No. 46 of the Federalist Papers. What changed his mind was the fact that he was not going to be elected into the newly formed Congress if he did not make a campaign pledge to introduce constitutional amendmendments at the First Congress. To be fair, that was not his only reason though. The whole subject of a Bill of Rights had been vigorously and even physically debated and Madison saw the writing on the wall. He didn’t want to have to re-do another Constitutional Convention to re-work every bit of that document again. In the end, he said that the Bill of Rights was useful but not essential.

Drawing on the Magna Carta, the English Bill of Rights and existing state constitutions, especially Virginia’s, Madison penned a draft of the Bill of Rights. On the issue of guns, his first draft said this:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Interesting wording, huh? Everyone has a right to own and use weapons as part of a well regulated militia but if your religion calls for you to be a pacifist, you won’t be forced to take part in the military.

The entire proposal is quite an interesting read, but not everyone readily agreed to what Madison wrote. A special committee was formed to edit and revise these rights and the changes then went through both the House and Senate, who changed and condensed them even further. Our current wording of the Second Amendment came from these changes. The final version was approved by joint resolution on September 25, 1789. Whereas Madison may not have been fully on board early in the process, he was active through every part of this process to push them through because he did not want the Anti-Federalists to gain the upper hand and force another Constitutional Convention. Better to push through what they had created than have to start over.

So were the citizens dancing in the streets with parades and marching bands once the Bill of Rights went through? Not really. Were there immediate challenges to the Supreme Court and epic legal battles for or against gun rights? No, not at all. In fact, from a legal standpoint, no one really paid much attention to the Second Amendment or to any of the amendments for that matter. There were no serious legal challenges to any of these rights for about 150 years.

As to the intent of Madison and the First Congress in writing and editing the Second Amendment, what were they thinking? What did they mean by a “well regulated militia”? A Google search to find this out will quickly end you up on many gun advocate sites. In fact, the NRA even maintains the James Madison Research Library and Information Center where they offer numerous quotes from those early state constitutions such as:

“Virginia: That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.”

“Maryland: That a well-regulated militia is the proper and natural defence of a free government.”

“Massachusetts: The people have a right to keep and bear arms for the common defence.”

Notice a common theme here? If you didn’t let me spell it out for you. The point of people having guns was to arm members of local militia who would act in the interests of the common defense. This is literally spelled out plainly in almost every one of these state constitutions. Having just come out of an era of British rule, which had been heavily enforced by a standing army on American shores, the newly independent states did not want to have anything to do with standing armies, garrisoning troops in private homes or any such thing. The militia was the solution to this problem and so the right of citizens to own and use their weapons couldn’t be infringed because then there would be no militia.

This term,”militia,” is commonly misunderstood because its meaning has changed over time, reflecting the changes in our society as we have gained international stature and have created not just one but four branches of our armed forces. What many do not appreciate is how different our society was when our nation was first formed. I

n 1789, there was no Army, Navy, Air Force or Marines or even a Coast Guard. Once we kicked the British out, there was not only no standing army, but there was general antipathy to the entire concept. Literally no one was interested in creating a new, centralized army under our new centralized government. Instead, the responsibility of civil defense was left to towns and states, who had a lot more autonomy in those frontier days than they do now. Those men who could be called upon to deal with situations requiring an armed response were called “militia.” It was simply expected that they show up when called and that they bring weapons with them since the federal government did not have the means or equipment to arm all these militia men on a moment’s notice.

Alexander Hamilton had argued in Federalist Paper No. 29, titled “Concerning the Militia” that it was a necessary and important element of a central government that it have the “power of regulating the militia, and of commanding its services in times of insurrection and invasion…” He made it clear that without such authority, and without a regulated and uniform militia to command, the federal government would be all but powerless to enforce its laws or to defend the nation as a whole. With no standing army at its command, the federal government would have no other alternative when it came to calling up the use of force for offensive or defensive purposes. He also made the point that just because the federal government had such authority did not mean or even infer that armed force was the only tool in its toolkit to get things done. There were people afraid that federal government could become tyrannical at the drop of a hat and they didn’t want to invest any power behind it. Yet this had already proven to not work with the Articles of Confederation and so some power and authority over the militia had to be conceded, otherwise the whole concept of our new Constitution would fail.

Hamilton addressed other concerns in his paper as well, all to the point that a militia consisting of volunteer citizens who fulfill their duty when called was the safest and most practical alternative to the standing army which no one wanted. It was impractical, he admitted, to think that these militia men would report for duty numerous times a year for drilling and training since they were mainly farmers or tradesmen who didn’t have the time or inclination for such a thing. However, that didn’t mean they shouldn’t be trained or regulated at all. The militia was not a free-for-all. To this he said “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.”

James Madison also dipped his foot in the militia controversy when he wrote Federalist Paper No. 46. Both he and Hamilton openly ridiculed the concerns of Anti-Federalists who supposed that a federally commanded militia force might be used to abuse or even subjugate the population, and their arguments against this were quite good, pointing out amongst other things that a militia would be composed of the very citizens who would be subjugated and no one with an ounce of integrity or common sense would follow orders to do such things. Madison went even further and argued that even if a standing federal army were created, it would be only about 30,000 men strong and so wouldn’t stand a chance against an armed populace of half a million armed citizen-soldiers who could fight back. The American Revolution itself was the proof of that argument, yet it’s pretty clear that this argument is not a valid one now. Our society has changed greatly since the time of James Madison and to use his arguments from that time and place to support why anyone who wants a gun now should have one is not only intellectually dishonest but runs counter to the entire foundation of Madison’s original argument. Context matters and Madison’s words have unfortunately been taken grossly out of context in modern times.

In fact, it seems an all-too-common theme amongst the NRA and gun advocates in general to flatly ignore the circumstances and context of the arguments of Hamilton, Madison and anyone else from the 1700s. I’ve discussed confirmation bias on my channel so many times, I feel like a broken record on the subject, but I have to comment here that its a prevalent problem amongst gun advocates who read only what they want to in our Founding Fathers’ words rather than get the whole message of what they were saying. It would be quite amusing if we could see Hamilton or Madison brought forward to today and see what they would have to say about our current ideas about guns. I would contend that they would not even recognize their own words, given how grossly out of context they are sometimes taken.

Anyway, time moved forward and our country grew under the new Constitution and prospered as it expanded across the entire continent. Despite, or maybe because of this prosperity, and also simply because people are people, their urge to kill other people didn’t go away and so the technology of gun manufacturing continued to develop.

One of the big problem with the flintlocks was they tended to not fire or misfire in humid or wet environments. The percussion cap was invented around 1820 to deal with this problem.

In 1835, Samuel Colt invented the first multishot, revolving chamber firearm which enabled someone to take multiple shots without having to stop and re-load. This was a huge deal which again changed the entire face of combat and was put into immediate use around the country.

By 1850, shotguns had been invented and in 1860, the Spencer repeating rifle could fire 7 shots in just 15 seconds. Interestingly, the Army didn’t want them at first because they thought soldiers would just overshoot their supply of bullets and use up all their supplies firing too often. That changed after President Lincoln himself test-fired a Spencer and gave it his stamp of approval.

The American Civil War began in 1861 and was one of the bloodiest conflicts in all of human history. During the time of the war in the 1860s, two men with pacifistic intentions created weapons that enabled men to kill other men in greater numbers than ever dreamed of before. With a certain degree of irony as well as tragedy, both thought that by making war too awful, people would come to their senses and stop fighting. Of course, it wasn’t that simple when you get into the details, but I will say that both men had far too high an opinion of people in general.

Around 1862, Doctor Richard Gatling patented the Gatling Gun, a six-barreled machine capable of firing 200-300 rounds per minute using a hand-driven crank and usually mounted on the back of a wagon. This gun could fire as long as bullets could be fed into it and so long as the barrels stayed cool enough to retain their shape, which often required an assistant pouring water on them while it was in use. Gatling produced this gun in the middle of the Civil War with the idea that his invention required fewer people to operate and thus, fewer soldiers would be needed in battle and so lives would actually be saved by using it. Surprisingly, the US Army wasn’t so interested and didn’t actually place any orders until just after the Civil War ended.

It was the Native Americans who ended up seeing the business end of this weapon during the Indian Wars. Of course, Russia and Britain also purchased their fair share of Gatling guns and used them against native tribes in their colonies too. It was used to mow down Native American tribes and whole fields of roaming buffalo upon which the Native Americans relied for their food. Instead of ending conflict, all Gatling did was make it easier for the white man to fuel his genocidal tendencies against minority populations all over the world. That is not a statement of opinion or bias, but just a fact.

Alfred Nobel worked to make unstable nitroglycerin an effective weapon and eventually invented dynamite in 1867 as a more stable alternative. This was originally intended for use in mining operations but when you have a substance that causes that much damage with so little effort, of course it’s going to find its way into military applications. Nobel is famously quoted from 1876 when he told Austrian countess Bertha von Suttner:

“Perhaps my factories will put an end to war sooner than your congresses: on the day that two army corps can mutually annihilate each other in a second, all civilised nations will surely recoil with horror and disband their troops.”

Nobel was a smart guy when it came to chemistry, but was a bit of an idiot at psychology. After creating dynamite, he then invented gelignite and in 1887 patented ballistite. He gained a great deal of wealth from the waging of war but was a pacifist at heart and when he realized that his legacy would be one of death, he created the Nobel Prize trust in an attempt to encourage solving the world’s problems through peaceable means.

The Gatling gun became obsolete within just 20 years, as weapons manufacturers continued innovating and pushing for faster and more efficient ways to kill. The mechanisms to create the first truly automatic machine gun – a weapon that fires continuously when the trigger is held down – was invented in the 1880s by Hiram Maxim. In 1892, the first automatic pistol was created by Joseph Laumann. The first automatic rifle appeared from Winchester in 1903.

And now let’s talk about what challenges have been presented over the years to the Supreme Court and how have they interpreted each challenge?

The first is United States v. Cruikshank from 1875. This was not a straight-up guns rights case but was instead a challenge in the post-Civil War years to states rights versus federal regulations. What happened was Republican candidate William Pitt Kellogg was elected governor of Louisiana in 1872 with 57% of the popular vote. Federal troops had to step in to enforce his election because it was so hotly contested and eventually President Grant personally stepped in and acknowledged Kellogg as the winner to end the controversy but not before the Colfax massacre where 105 blacks and 3 whites were killed on Easter Sunday 1873.

At the time, the Democrats were the party of the racist South. A group of white Democrats armed with rifles and a small cannon, overpowered Republican freedmen and state militia who were guarding the Grant Parish courthouse in Colfax. Most of the freedmen were killed after they surrendered; nearly 50 were killed later that night after being held as prisoners for several hours. Estimates of the number of dead have varied, ranging from 62 to 153; three whites died but the number of black victims was difficult to determine because bodies had been thrown into the river or removed for burial.

I won’t get into commenting further on the barbaric Southern activities of that time period, except to say that the Colfax massacre was but one instance of the racially charged violence directed against the newly freed blacks in the South and any whites who were on the side of individual freedom and equality for all human beings. Between 1868 and 1875, violence and voter fraud were the two hallmarks of elections in the South. There is nothing wonderful or great about what went on during this time period. In fact, it should be remembered as one of the worst periods in our country’s history, but all too often incidents like the Colfax Massacre are simply swept under the rug of historical revisionism.

Now as to how this relates to gun rights, the Supreme Court basically enforced the racist agenda of the South in what I consider to be one of the most shameful decisions it has ever rendered but which, unfortunately, was not the only time the Supreme Court came down on the wrong side of history. What we have to remember about the Supreme Court is that it is made up of people who have just as many biases, prejudices and personal blind spots as anyone else and they have made some incredibly huge blunders of the years.

You see, Congress passed three bills between 1870 and 1871 to protect African-Americans’ right to vote, hold office, serve on juries and receive equal protection under the law. These were known as the Enforcement Acts and allowed the federal government to intervene in cases where states did not protect these rights. These all came on the heels of the 14th Amendment, which had given full citizenship to anyone born in the US and the 15th Amendment which banned racial discrimination in voting.

Federal prosecutors pursued charges against some of the murderers of the Colfax Massacre under the Enforcement Acts and this ended up being appealed to the Supreme Court. That court ruled that the protections of the 14th Amendment don’t apply to individuals or private conspiracies but only to actions committed by the state itself. The court said plaintiffs who believed their rights were violated had to seek protection from the state. Louisiana did not prosecute any of the perpetrators of the Colfax Massacre; most southern states would not prosecute white men for attacks against freed black men.

Historian Eric Foner wrote about this:

“The bloodiest single instance of racial carnage in the Reconstruction era, the Colfax massacre taught many lessons, including the lengths to which some opponents of Reconstruction would go to regain their accustomed authority. Among blacks in Louisiana, the incident was long remembered as proof that in any large confrontation, they stood at a fatal disadvantage.”

Louisiana teacher and legislator John G. Lewis wrote “The organization against them is too strong. They attempted [armed self-defense] in Colfax. The result was that on Easter Sunday of 1873 when the sun went down that night, it went down on the corpses of two hundred and eighty negroes.”

In terms of their use of guns, the Supreme Court ruled that “the right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”

Now let’s fast forward to 1934 when Congress passed the National Firearms Act, which was an effort to regulate registration of firearms in the wake of an attempted assassination of President Franklin Roosevelt and the end of Prohibition, which had seen a huge rise in gun violence, such as the Valentine’s Day Massacre. The case of United States vs. Miller in 1939 was a challenge to that Firearms Act. The Act called for fully automatic firearms, short-barrelled rifles and shotguns to be registered with what was the then-equivalent of the ATF.

Basically, Jack Miller challenged the legality of the National Firearms Act according to what he claimed were his Second Amendment rights. On March 30, 1939, the Supreme Court heard the case. The defendant and his attorney did not even show up for the hearing. The court ruled that the National Firearms Act was constitutional and did not violate the Second Amendment.

The majority opinion stated “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

However, gun rights advocates have cited this case as a victory because they say that shotguns were used by the military in World War I, and therefore such weapons were protected under the “well-regulated militia” clause. Now let’s be clear here. Jack Miller was a known criminal who didn’t show up for his own court case because he was found shot to death in retaliation for ratting out his gang. He was not using or transporting his short-barrelled shotgun because he was using it as a member of any militia. He was a bank robber. And yet the statement of record by the Supreme Court is thought of as some kind of victory for gun advocates.

Is it only me who finds it kind of sickly fascinating that any gun rights advocate would stand by a bank robber’s use of a shotgun to kill innocent people as a justification for their right to own shotguns? Does that make sense to anyone outside of the NRA? The Supreme Court didn’t see it that way and this remained that way for decades.

In fact, in Adams vs. Williams in 1972, the Miller case was cited and the judge wrote that the Second Amendment “must be interpreted and applied” with the view of maintaining a “militia.” The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”

The Supreme Court heard no other case directly involving the Second Amendment until District of Columbia vs Heller in 2008. If you were ever wondering why it’s important who puts Supreme Court judges in place, you won’t after you hear this.

DC vs. Heller was an artificially built case put together and funded by Robert A. Levy, chairman of the Cato Institute, a libertarian think tank founded by Charles Koch of Koch Brothers infamy. Levy has never owned a gun but on general principles wanted to do anything he could to restrict government interference in people’s lives so he found six plaintiffs of varying backgrounds, ages and race to challenge a Washington DC statute which had banned handgun ownership in DC and mandated that shotguns and rifles must be “unloaded and disassembled or bound by a trigger lock.”

Their case was initially dismissed but the appeals court reversed the dismissal and held that the Second Amendment “protects an individual right to keep and bear arms”, that the “right existed prior to the formation of the new government under the Constitution”, also stating that the right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” They also noted that though the right to bear arms also helped preserve the citizen militia, “the activities [the Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The court determined that handguns fit the definition of “arms” and so cannot be banned by Washington DC, nor was it acceptable to mandate that rifles or shotguns be disassembled within a person’s home.

As we went over earlier, this appeals court decision is in direct opposition to the entire purpose and reason for the Second Amendment. If you compare what these appeals court judges wrote to what James Madison, the author of the Second Amendment, wrote, you find that they are in contradiction to one another. All of these judges were Republican appointees and there is no question their personal bias entered in to their decision making process, because they certainly didn’t consult the Second Amendment itself.

The case was petitioned to the Supreme Court and it was a hot topic issue, with the majority of the United States Congress signing a brief advising that the case be affirmed. They were joined by Vice President Dick Cheney as well as a majority of states who signed a brief written by Senator Ted Cruz for the Attorney General, Greg Abbott. The Fraternal Order of Police and Southern States Police Benevolent Association also joined in, urging the case to be affirmed.

A number of organizations signed similar briefs suggesting to the Supreme Court to remand the case including the Department of Justice and attorneys general from New York, Hawaii, Maryland, Massachusetts, New Jersey and Puerto Rico as well as a number of religious and anti-violence groups.

After all was said and done, the Court ruled that the Second Amendment “codified a pre-existing right” and that it “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” but also stated that “the right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”. Of course, this last statement just muddies the waters and makes it entirely unclear what rights a person does or doesn’t have under the Second Amendment. Instead of clarifying the Constitution, Scalia and the other judges who voted for this just made it more confusing.

It is my position that the Supreme Court made a gross and glaring error in their interpretation of the Second Amendment and I have offered this podcast as my rationale for saying that. I realize that no one at the level of the Supreme Court particularly cares what I think but as a citizen, I feel it’s my right and duty to speak out about this, because what Scalia and the other judges did in 2008 was just plain wrong.

To be clear in wrapping up this episode, I am not of the opinion that all guns should be confiscated and done away with. The practicalities of doing such a thing, especially in the United States, are beyond all reason. However, I am of the firm belief that if the federal government is not going to act to protect its citizens from the danger that our gun epidemic poses to all of us, then the states must. There are other issues and conditions which cause more death in the United States than guns, but few that are as violent or upsetting or publicized. And when children become the innocent victims of gun violence, it stirs up a great deal of righteous anger against guns and those who would claim that their rights to own guns is somehow more important than the lives of innocent children. Somehow we have to find a common ground and a balance between these things if we are going to ever address this rationally. Both sides are going to have to give, because the way things are now, the situation is untenable and cannot continue as it has.

I’ll be doing more podcasts on this subject. First I wanted to lay out the historical narrative and how we got to where we are. I’m not pretending to have covered every single relevant court case, statute or regulation, and I’m aware that there are all kinds of semantics controversies as to what does and does not constitute military grade hardware. From my point of view, we’ve only gotten to playing such semantics games because we’ve lost sight as a nation of what’s actually important.

The divisive rhetoric of gun manufacturers and the NRA have created a kind of cult mentality when it comes to guns. Not all gun owners fall into this, of course, just like not all gun owners are card carrying members of the NRA. The number of lies and obfuscations that are printed and spoken on this subject are legion and are not easy to sift through. I’ve been intensively studying this for weeks just to put this together and I’ve barely scratched the surface of the issues involved. However, I do feel that a true and deep understanding of our Constitution and Bill of Rights is a vital foundation to any rational conversation on this topic and that’s been the purpose of today’s podcast.

Thank you for watching. I’ll see you next week.

The post Sensibly Speaking Podcast #135: The Real History of the Second Amendment appeared first on The Sensibly Speaking Podcast.