Shh…Cross Your Fingers…No Mass Shootings in the Past Few Days: Revisiting Original Intent and the Second Amendment

Since we seem to be in a lull—for how long, who knows—in mass shootings, I thought it might be a good time to revisit the Second Amendment, original intent, and the reality of risk through a complete and thorough analysis of the genesis of a “well-regulated militia….” and the level of criminality we face as a society, absent the hysteria of a post-shooting news frenzy.

(Authors note, it may be that we are not in a lull but just the latest shootings haven’t merited any news time because, meh, it wasn’t really that many victims.)

Here are those twenty-seven words that have wreaked such havoc on holding a civil discussion in seeking rational solutions to preventing gun violence in the United States.

Patrick Henry, “Give me Liberty or give me Death.”

“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.”

Clearly, something is amiss here. 50.6% of all firearm deaths occurred in six countries.

Brazil, the United States, Mexico, Venezuela, Colombia, and Guatemala.

Now, not to be condescending to those other five countries, but I can’t help but think most Americans would find it hard to believe we bear a similarity to countries with major internal stability issues. Even more startling, we have a lower firearms death rate (excluding deaths from armed conflicts) than Afghanistan.

Ask anybody on the Southside of Chicago. I bet some might think they live in a war zone because of firearm violence.

There are two issues I want to address:  The genesis of the need, in the eyes of the original authors of the Bill of Rights, for citizens to have firearms and the perception of those who believe the risk of owning a gun (most firearm deaths are suicides) is outweighed by the actual threat to their safety thus the need to carry a concealed firearm in public.

The Supreme Court will hear arguments on a New York case this Fall about two New York residents who were denied permits to carry concealed weapons. The ramifications of such a decision will have implications nationwide.

But first, to the issue of the origin of the Second Amendment. Context is important. The colonists, recently freed of the shackles of a Monarchy, distrusted central governments and standing armies. Having just defeated one at great peril, they feared replacing the monarchy with merely another repressive regime protected by a powerful military. Relying on the success of a ragtag group of volunteers—aided by some able French officers and supplies—the Americans saw no need for a standing army. Should the need arise for a defense of the country, or individual state, the same approach would suffice.

Thus it made sense for citizens, subject to recall as a militia, to be allowed to keep arms. But, as with all things historical, there was more to the story.

The south, already aware of the growing anti-slavery movement, was mainly concerned with a standing army that might be loosed upon them should the anti-slavery movement gain a majority in Congress and the Presidency.

None other than Patrick Henry himself—the epitome of the patriotic American—raised the genuine issue of why citizens, particularly those in the south, needed weapons to protect themselves from not just an overreaching government but from something infinitely more sinister.

In its initial form, the amendment about weapons spoke about Congress being the only entity that could activate the militia in time of war. But what if, Henry argued, some other calamities arose not from outside a state but from within? Leaving Congress the sole power would put states at risk.

He argued.

“Not domestic insurrections, but war. If the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress… Congress, and Congress only, can call forth the militia.”

Patrick Henry

There you have it. One of the original arguments supporting the changed language, made to mitigate southern states’ concerns, was to ensure white citizens could have the means to suppress the insurrection of slaves. And if there is any doubt this right was reserved to white citizens, read the entire reference above. Not one mention of free blacks being allowed to “keep and bear arms.”

It was not the only reason, but it was a reason they crafted the language the way they did.

Don’t take my word for it. Read this excellent piece by Professor Carl Bogus from Roger Williams Law School written back in 1998.

Here’s the link to download the paper. It is lengthy, but we are discussing a rather serious topic. I think it merits at least as much time as an episode of America’s Got Talent.

Threat Perception vs. Threat Reality

People buy guns for three specific reasons: hunting, target shooting, personal protection. While the first two have some associated risks, so does riding a bike or driving in a car. It is with the last reason that the issue of perception vs. reality bears discussion.

In many states, “stand your ground” laws, designed to allow individuals the lawful right to defend themselves rather than flee from a threat, may have unintended consequences of increasing the likelihood of a violent encounter involving a firearm.

This is from a summary of studies on the effect of such laws.

“The prevalence of guns in the community means incidents like robbery and other crimes are more likely to carry the risk of gun violence. In states with “stand your ground” laws, Rand Corporation found that even minor disagreements or physical altercations carried a greater risk of turning into violent crime. In short, gun ownership does not increase safety, and the prevalence of guns directly correlates with significantly greater risk of gun-related homicides and suicides.”

When I was in the police academy, one of the instructors said something that always stuck with me. He said, “every call you go on involves a gun. Most of the time, you’re the only one with the gun, but nevertheless there is a gun in the mix.”

From that, I also knew this, guns have no loyalty; they will work for whoever pulls the trigger.

Thus it makes sense—given the increasing number of people seeking permits to carry guns, combined with the number of states which have no limitation or permit requirement to carry a concealed weapon—the number of violent encounters involving firearms will increase.

What once may have been a threatening argument, pushing and shoving match, or street brawl, now turns into a free-fire zone.

I can’t help but believe that many of those who see carrying a concealed weapon as a valid measure of protection subconsciously want something to happen. If for no other reason than to justify their choice.

Here’s a link to an analysis of multiple studies of stand your ground laws. In every instance, under every study, the prevalence of such laws increased the likelihood of a firearms death or injury, and not always for the “bad” guy.

Sometimes the perception of a threat far outweighs the reality. While violent crime has declined over the past several decades, the perception of violent crime has increased. We can attribute much of this to the non-stop saturation of media coverage—both traditional and social—and the limited in-depth analysis of crime and actual risk.

Given we put so much emphasis on the “founding fathers” words—such devotion to the past borders on religiosity, it is like our national religion—we must be zealous in our pursuit of understanding them in the context of their times.

And our equally religious faith in the sanctity of the Second Amendment bears a thorough and dispassionate analysis to measure its benefit compared to the risk.

One cannot choose which facts of history to accept and which ones to ignore. The link between the “right to bear arms” and protecting white slave owners from a slave insurrection cannot be severed. It is a fundamental part of the overall analysis.

We also cannot ignore the actual level of criminality and the threat to personal safety simply because we may perceive that threat to be greater than its actuality. Just because we are fearful something could happen doesn’t make it more likely, or real.

What we do need is to dispassionately examine the risk/benefit of carrying concealed weapons. Before we march blindly into a practice we believe will make us safer—under the guise of defending our inalienable right to bear arms—but may put us and society at greater risk, we should be as confident as possible we are forging a sound doctrine.

It may be every law-abiding citizen carrying guns would make us safer, or it may be a self-fulfilling prophecy that all those guns will kill us.


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