Yesterday, the United States Senate defeated efforts to modestly regulate the sale and purchase of guns. Often, those of us who support gun control cede that owning guns is consistent with freedom but argue that, like other freedoms, certain sensible limitations are necessary for our safety. However, I would submit that yesterday’s defeat was a defeat for freedom as the American Founders understood it. The history of the Second Amendment tells us that the framers of the Bill of Rights believed regulating firearms is not only consistent with freedom, but a critical aspect of preserving liberty.
Up until a month before the Bill of Rights was sent to the States in September of 1789, the Second Amendment contained an additional clause. When James Madison first proposed to Congress an amendment regarding the right to bear arms, it stated: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” In this original draft, the freedom to not bear arms was as important as the right to bear them.
The immediate subjects and beneficiaries of this “scruples clause,” as indicated by the debates in the House of Representatives, were pacifist communities. During the Revolutionary War, over 90 members of a neutral band of Moravian Delaware Indians were massacred by Pennsylvania militiamen and Quakers and Mennonites were sometimes harassed and intimidated. After the war, concern for the religious freedom to opt out of war and worries that those with weapons would impose upon those without was substantial. Ratification conventions in Maryland, New York, Virginia and North Carolina proposed separate amendments to the Bill of Rights, which broadly asserted that religion “can be directed only by Reason and Conviction, not by Force or Violence.”
All Americans had good reason to fear being forced to bear arms. European monarchs had long imposed conscription and raised war levies on the backs of ordinary citizens. Following the Whiskey Rebellion, Congress did in fact conscript all white male citizens into state militias and even required those citizens to arm themselves with specific weapons in the Second Militia Act of 1792. While Americans today understand gun ownership as a hallmark of freedom, for many early Americans carrying guns was at best a cumbersome duty or troublesome necessity and at worst a sign of subjugation.
It is not clear from the record of the debates in the House of Representatives why the scruples clause was dropped from the Second Amendment at the last minute. Elbridge Gerry raised concerns that the government could choose which religions would have a right to bear arms. Others worried that claims of religious conscience would allow people to shirk their militia duties.
We might surmise that the best reason for dropping the clause is that the other Amendments in the Bill of Rights are sufficient warning against the notion that bearing arms is the bedrock of freedom. The Third and Fourth Amendments secure our persons and property against the forcible incursions of soldiers and the government. The First Amendment guarantees of free speech, religion and peaceable assembly mean that we have the right to do these things without being threatened, intimidated or killed. Taken together, the three amendments in closest proximity to the Second Amendment suggest that freedom means being free from the violence of one’s government and fellow citizens.
Moreover, the spirit of the scruples clause remains in the first words of the Second Amendment. The Second Amendment is the only place in the Bill of Rights where Congress’s capacity to “regulate” appears in plain language. Our forebears clearly believed that freedom involved not only ensuring that the government would not have a monopoly on guns, but also that we would carefully regulate our weapons. The main purpose of the Bill of Rights was to protect against the dreaded tyranny of the majority, where some citizens might forcibly compromise the rights of each individual. The recent rash of mass shootings and the toll of gun deaths in the United States more generally demonstrates that our laws are wildly out of balance. We have long since passed the day when the freedom to bear arms outstripped our freedom to feel secure in our homes, offices, schools and places of worship.
The Constitution balances the right to own guns with the right of all citizens to feel free from fear and intimidation. The debate surrounding the very words to include in the Second Amendment demonstrates that the Founders understood the right to bear arms as both a guarantee of freedom and a potential threat to it. Adequate Congressional regulation of firearms is critical to freedom. Yesterday was a defeat for liberty.
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