Where does our Second Amendment come from? English law, like so many of our other laws? Or is it a uniquely American compromise?
Note: This season of American Diagnosis was originally published under the title In Sickness & In Health.
Celine Gounder: Welcome back to “In Sickness and in Health,” a podcast about health and social justice. I’m Dr. Celine Gounder. This season we’re looking at gun violence in America. And before we get into the policies… and the science behind them… we’re going to spend a few episodes looking at the history and culture of guns in our country.
Alex Trimble Young: …One of the things that makes gun culture so fascinating is that it really blurs the lines of questions about public health, politics and culture. … gun violence in the United States… really can’t be solved without addressing these questions of politics, culture… addressing some of the fundamental conflicts of our history to make things change.
Celine Gounder: So in this episode, we’re going to start exploring the origins of our nation’s relationship to guns.
Celine Gounder: It’s hard to talk about gun culture in America without jumping back in a time a couple hundred years. Specifically, to the drafting of the Second Amendment of the Bill of Rights.
“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.”
Celine Gounder: The U. S. Constitution and Bill of Rights were heavily influenced by English laws… like the Magna Carta… and the English Bill of Rights of 1689. But at some point in time, American and English attitudes, culture… and laws about guns diverged. Today, the UK has far stricter gun laws than the U. S. … and in fact, they’re some of the strictest in the world. So what about our nation’s history set us on a different path? And where did our Second Amendment come from… if not English law? To answer that question, we actually need to step back even further in time… to pre, pre colonial days… before that parting of ways. And that brings us to someone who doesn’t come up all that often in gun debates.
Lois Schwoerer: He’s better known for his six wives … and … his dealing with the Pope for this.
Celine Gounder: Henry VIII. That’s right. The King of England from 1509 to 1547.
Lois Schwoerer: He’s also very much interested in guns, and took instruction in them, and was determined to initiate a war with France, and that is what propelled the development of the gun industry.
Celine Gounder: That’s Lois Schwoerer. She’s an expert in the early history of guns in England. As Lois explains, Henry VIII helped start his nation’s “gun industry.” It began for military purposes, but it quickly expanded.
Lois Schwoerer: People who were making military guns perceived that there was a market for domestic guns; guns that could be used in hunting, guns for personal protection against human and animal predators, guns used for prestige… because they could be made very beautiful, works of art in fact.
Celine Gounder: Under Henry VIII, private gun ownership started to spread — but not without restriction. A century after Henry VIII’s death, Parliament created the English Bill of Rights. Article VII codified these restrictions.
Carl Bogus: “That the subjects, which are Protestants, may have arms for their defense suitable to their condition and as allowed by law.”
Celine Gounder: That’s Carl Bogus, Professor of Law at Roger Williams University in Rhode Island. He’s written extensively about the history of our Second Amendment. Article VII lays out two primary restrictions. The first: religion. This was after the Protestant Reformation, and Parliament didn’t want Catholics armed.
Carl Bogus: …Catholics were a suspect group. …there was a feeling that Catholic forces wanted to take control back of England, and there was a great deal of mistrust of Catholics, there were worries about Catholic plots…
Lois Schwoerer: It is made very clear that the subjects… are Protestant, that is to say, not Catholic, but Protestant only. They have arms for their defense.
Celine Gounder: The second restriction was based on class. That’s what Article VII means by “suitable to their condition.”
Lois Schwoerer: One needs to remember that this is a hierarchical society… the monarchy and the upper classes, members of the upper classes… do not want people who are not well-to-do to possess and use a gun. This is made clear by imposing a criterion of having an income of £100. £100 is a lot of money in the 16th century. And so, it legally restricts the possession and use of a firearm to about 2% of the society.
Celine Gounder: Why didn’t the wealthy want people of a “certain condition” to have guns? Well, one reason is a kind of snobbery… elitism.
Lois Schwoerer: …hunting was the favorite occupation of the upper classes, and they were determined not to have any challenge to their dominance of it.
Celine Gounder: Here’s Carl Bogus again.
Carl Bogus: One wag famously said that English gun laws were all about… protecting pheasants from peasants, the idea being that the upper class can go hunting, but not peasants. Don’t be shooting pheasants on land held by Dukes and Earls.
Celine Gounder: Guns weren’t just for hunting, though. For Protestants of means, guns were used to protect livestock, and… if needed… for self-defense. Guns were also made available for another crucial reason: so militias could be armed. A “well regulated militia” if you will? This is starting to sound a lot like our Second Amendment, right? Not quite. To understand the difference, let’s take a closer look at that word: militia. English militias in the 1500 and 1600s weren’t how we imagine militias to be today. It was a wide-ranging term… referring to armies that fought foreign wars… and to the equivalent of state police… or perhaps… the National Guard.
Lois Schwoerer: …the militia takes care of domestic uprising, insurrection, and that kind of thing locally.
Celine Gounder: Which brings us back to that fear of the lower classes in England.
Lois Schwoerer: There’s a great deal of fear about the poor, because there’s the sense that unless they are controlled, they will erupt in riot or other forms of disobedience, protesting the situation in which they find themselves.
Celine Gounder: Armed militias in England at the time didn’t protect the people from government tyranny. They protected the monarchy from the people.
Lois Schwoerer: Oh, they’re very much under the control of the monarchy… and there’s no thought of protecting people from the monarchy, not in the early modern era certainly.
Celine Gounder: In England guns were highly regulated — with restrictions along religious and class lines. They were seen more as tools of the state… and status symbols for the wealthy — than something to which every pleb had a right.
Lois Schwoerer: Article VII of the Bill of Rights is very carefully drawn to reflect the historical attitude towards guns that has threaded through English history. In my view, our Second Amendment is not based upon the Article VII of the 1689 Bill of Rights…
Celine Gounder: The ways in which Article VII restricts guns was in many ways antithetical to our own Constitution.
Lois Schwoerer: Why would Americans want to accept Article VII, that has to do with a restriction on religion? In fact, we make it clear that in our BIll of Rights, there’s no restriction on religion. Religion is free.
Celine Gounder: Even before the Constitution was written, the American colonies were creating a new culture… around guns and gun ownership.
Alex Trimble Young: The British Empire was unable to sort of do the work of empire in North America solely through the use of a regular army, and really relied on settlers themselves to do some of the violence that enabled its expansion.
Celine Gounder: That’s Alex Trimble Young, a historian at Arizona State University. That was him at the very top of the show. He’s written about our nation’s early history with guns, and how that affects our gun debates today. Alex is talking about the seizure of lands from indigenous peoples… which was at the core of colonization in North America. By having armed individuals who had a personal stake in expansion, the English didn’t need to send a massive army to colonize America.
Alex Trimble Young: Gun ownership was not primarily about hunting, not primarily about protection from a tyrannical state, but was tied up with the colonial project of the British Empire in North America. … You had militias organized primarily for what they called defense — but what was really offense — against indigenous peoples in the thirteen colonies.
Celine Gounder: And again, it’s essential to understand the meaning of that word, “militia.” In the early colonies, it was different than it had been in England. Before the American Revolution and the Continental Army, there existed two main types of militias in U. S. One, like Alex describes, was deployed to help in armed conflict on the new continent. And it went beyond what even the English had imagined.
Alex Trimble Young: Some of the colonists’ demands… had… to do with their desire to take over land on the frontier and antagonize indigenous tribes on their own territory, in ways that the British Empire didn’t want to do for geopolitical reasons.
Lois Schwoerer: Americans absolutely needed a weapon. And by the time America is settled… there’s no question about the need for a weapon, and this is true for a long time.
Celine Gounder: And the other type of militia?
Carl Bogus: The militia and slave patrols were synonymous, and it was the militia that had the responsibility for ensuring that there would not be slave revolts… that slaves would not be preparing for revolts.
Celine Gounder: For many of the colonies, this was the essential task of a militia. It’s hard to underscore just how central concerns about slave rebellion were to white southerners in those days.
Carl Bogus: In many places in the South… the majority population was an enslaved black population being controlled by a minority white population. So, there was constant worry, more than worry… obsessive fear about slave revolts, and that’s what the militia was almost exclusively about in the South.
Celine Gounder: And these fears weren’t unfounded. Here’s just one example: In 1739, outside of Charleston, South Carolina, twenty-two slaves gathered at a store, killed the shopkeeper, and seized its weapons.
Carl Bogus: …and began to march under flags, proclaiming freedom and liberty, and asked slaves to join them. And somewhere between sixty and a hundred slaves did join the insurrection.
Celine Gounder: This happened to be on a Sunday. And militia members—we’re talking about, simply, adult white males—since it was Sunday, happened to be in church when words spread that there was a slave insurrection in progress. At the time, South Carolina law required militia members to take guns with them to church for precisely this type of eventuality. So… they gathered together, and they met the revolting slaves. There was a battle. About sixty-five people died in that battle.This was the Stono Rebellion… one of the biggest slave uprisings in U. S. history. But it was far from the only one. Events like it solidified the connection between slavery, militias and private gun ownership in the southern U. S.
Carl Bogus: The militia were principle slave control devices or instruments at the time of the writing of the Bill of Rights and before.
Celine Gounder: So how did we get from colonial expansion and slave patrols to gun ownership being about defending against tyranny? The American Revolution, right? Our militias were enlisted to help fight the English, at Bunker Hill and Lexington and Concord, and they became defenders of freedom. And after throwing off the chains of English tyranny… Congress passed the Second Amendment to protect our newly born democracy from overreaching government… right? Again, not quite.
Celine Gounder: First off, militias weren’t exactly the heroes of the American Revolution.
Carl Bogus: The militia… had been a flop during the Revolutionary War. They all knew that in Philadelphia. The militias’ victories, Lexington and Concord, and Bunker Hill, if Bunker Hill was considered a victory, where the… pretty much the sum total of successful operations by the militia against the professional British Army.
Celine Gounder: At George Washington’s urging, a standing army and navy were established. And the need for a “well regulated militia,” on the other hand, remained largely unchanged from early colonial days… for geographic expansion… and protection of the institution of slavery.
Carl Bogus: All of the South invested a huge amount of energy and resources into conducting slavery patrols just about every night, perhaps every night, and it was just a source of life in the South at the time the Bill of Rights was written in 1789.
Celine Gounder: According to Carl, Lois, Alex, and many other scholars, the Second Amendment was born of a desire to protect these types of militias. Unfortunately, though, the amendment itself isn’t so clearly worded. If it were… at least some of our current disagreements about gun rights… might be settled. So what did James Madison mean when he wrote those twenty-seven words, exactly? That’s the question. And while we can’t travel back in time, we do know a lot about the context in which it was drafted. Like so many parts of our Constitution, the Second Amendment borrowed from English traditions… while also… creating something entirely new.
Carl Bogus: When [James] Madison wrote the Second Amendment, Madison was well aware of the English Bill of Rights…
Celine Gounder: But as Lois puts it:
Lois Schwoerer: The Bill of Rights of 1689, along with other of the laws, such as the Petition of Right, Magna Carta and so forth, are very much in the forefront of the minds of our American forefathers, but they certainly pick and choose among the points in those documents.
Celine Gounder: Our Constitution and Bill of Rights also emerged from a series of compromises unique to the original thirteen colonies. One of the key authors of the Bill of Rights was James Madison, who represented Virginia in the Constitutional Convention. He, more than anyone, was responsible for the wording of the Second Amendment. And to understand the Amendment fully, you need to understand the concerns that southern states like Virginia had about the newly drafted Constitution. Specifically, concerns about militias.
Carl Bogus: …there was a debate between the Federalists and the anti-Federalists in Richmond, Virginia in June of 1788, when Virginia was determining whether or not to ratify the newly proposed Constitution of the United States.
Celine Gounder: The Constitution split authority over militias between state governments and the federal government.
Carl Bogus: Specifically, it gave Congress the ability to arm the militia, and the anti-Federalists argued that that meant that Congress also had the ability to disarm the militia. That only Congress could arm the militia, and if Congress did not arm the militia, the states would have unarmed militia, and therefore would be vulnerable to slave insurrections.
Celine Gounder: Madison thought the Second Amendment might be a solution… a compromise to address the concerns of southern states.
Carl Bogus: He couldn’t say that the states could arm the militia because that would contradict the main body of the Constitution, which said that Congress had the power to arm the militia.
Celine Gounder: So instead, Madison drafted the Second Amendment to allow militias to be armed by the members of those militias themselves… in the event that Congress didn’t arm them.
Carl Bogus: The Second Amendment effectively guaranteed the rights of the states to have an armed militia to provide for their own security regardless of what Congress might decide. It gave the states some minimum right to an armed militia…
Celine Gounder: We’ll never know exactly what the Framers were thinking when they wrote the Second Amendment. It seems pretty clear that to the Founding Fathers, a “well-regulated militia” wasn’t meant to be a check on government oppression… and in fact… was a tool of oppression… for keeping the slave population under control… and for fighting off natives as we moved west to colonize the frontier. And “insurrectionism”—the idea that Second Amendment was designed to allow for a citizen-led armed revolt against the government—isn’t what the Framers had in mind.
Carl Bogus: The Founders recoiled at that notion. When they were faced with armed groups complaining about governmental policies—during the Shays’ Rebellion in Massachusetts, the Whiskey Rebellion in Pennsylvania—they were horrified and stamped that out very quickly…. and made it entirely clear that if you do not agree with government policy, your route of protest is through the political system: through the vote, through arguments in the legislature, through arguments in the press, and not through violence or the threat of violence or through the barrel of a gun.
Celine Gounder: Most gun rights advocates will take exception with that. Many believe that owning guns is essential… perhaps even more important than free speech… to safeguarding our democracy against tyrannical rule.
“Well, you know, I mean, when we look at the Second Amendment, some people say, ‘well, gee, it’s there for hunting and so on.’ No, I mean, it’s actually there to protect us against government tyranny.”
“You know, the right to bear arms is there because that’s the last form of defense against tyranny.”
“And if you want to feel the warm breath of freedom on your neck, if you want to touch the pulse of liberty that beat in our Founding Fathers, you can do so through the majesty of the Second Amendment of the Bill of Rights. There lies what gives the most common of common men the most uncommon of freedoms.”
Alex Trimble Young: It’s become almost like a right-wing cliché nowadays, but is one that has been used over the course of U.S. history by both the right and left, which is this idea that the Founders gave us three boxes to stand on… the soapbox, the ballot box and the bullet box.
Celine Gounder: Three boxes that were supposedly part of our system of checks and balances: free speech… the vote… and guns.
Alex Trimble Young: The Second Amendment is so often held up… as a positive symbol of American exceptionalism, as a institution and a right that we protect that makes our society fundamentally more democratic than European societies that regulate the control of firearms much more tightly. But, at the end of the day, I think, when you look at the long history of private ownership of firearms in the United States, you realize that they were and are much more often put to undemocratic purposes involved with racial domination rather than promoting a truly egalitarian democracy.
Celine Gounder: How could the meaning of those twenty-seven words have changed so much? In our next episode… we’ll look at regional differences about when it’s OK to use violence… and how the history and way of life of the people who settled those areas… molded those attitudes.
Celine Gounder: Today’s episode of “In Sickness and in Health” was produced by Dan Richards and me. Our theme music is by Allan Vest. You can learn more about this podcast and how to engage with us on social media at insicknessandinhealthpodcast.com, that’s insicknessandinhealthpodcast.com. If you like what you hear, please leave us a review on Apple Podcasts. It helps more people find out about the show! I’m Dr. Celine Gounder. This is “In Sickness and in Health.”