Remember that elementary-school exercise, “Opinion or True/False”? The point was to differentiate claims that were debatable from those that weren’t.
1. Americans should have unlimited freedom to purchase and own firearms.
2. For most of our history, Americans had unlimited freedom to purchase and own firearms.
Statement No. 1 is a matter of opinion, of course, on which Americans differ sharply. Although 44 states have passed a law since 1980 giving citizens the right to carry concealed weapons outside of their homes, a 2004 Gallup poll, for example, showed that 44 percent of Americans believed that only law enforcement officials should have such a right. Another 26 percent said that “only those who have a clear need for a weapon” (such as people who transport large amounts of cash) should be able to carry one, and another 27 percent said “any private citizen” should be allowed to do so.
But Statement No. 2 is clearly a “fact question,” as we used to say, not an opinion one. Either Americans possessed broad gun rights for most of our history, or they didn’t. True or false?
It’s false. Indeed, the truth is precisely the opposite: Until the very recent past, individual gun rights were severely restricted. Believe it or not, the entire concept of “gun rights” – that is, of citizens’ unbridled freedom to buy and own firearms – is largely a creation of our own times.
Yes, the Second Amendment to the Constitution guarantees the “right to bear arms.” But if that means individual citizens – as opposed to state militias – can carry firearms anywhere they want, someone forgot to tell our 19th-century forebears. As law professor Adam Winkler has found, 10 states passed laws in the 1800s barring the possession of concealed weapons.
One of them was Texas, the lodestar of the gun-rights movement today. But as the Lone Star governor said in 1893, “the mission of the concealed weapon is murder. To check it is the duty of every self-respecting, law abiding man.”
Founded in 1871 as a hunting organization, the National Rifle Association supported waiting periods for handgun buyers and a wide array of other state restrictions. It also backed the first major federal gun regulation, the 1934 National Firearms Act, which was upheld by the Supreme Court in a unanimous decision five years later.
As US Solicitor General Robert Jackson told the Court, the Second Amendment did not protect the right of individuals to possess guns for “private purposes.” Instead, it was “restricted to the keeping and bearing of arms by the people collectively for their common defense and security,” wrote Jackson, who would join the Court himself in 1941.
Only in the 1970s would the NRA and conservatives start to argue that the Second Amendment guaranteed individual gun possession. Piggybacking cleverly on the minority and women’s rights revolutions, the NRA claimed that gun owners, too, were endowed with “rights” that were protected by the Constitution.
The group also created a giant lobbying and publicity apparatus to spread this new doctrine. Reflecting on the NRA's politicking, Chief Justice Warren Burger said that the Second Amendment “has been the subject of one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime.”
But Burger had retired by the time he made that statement, and the NRA was on the rise. Today, millions of Americans take it for granted that the Constitution protects individual gun rights. So do their legislatures and courts, which have discovered a meaning in the Second Amendment that earlier generations never imagined.
That’s doesn’t mean they’re wrong, necessarily, or that prior interpretations were right. Our past is replete with legal doctrines that have shifted with the times, in ways that we justly celebrate. For nearly two centuries, most notoriously, courts upheld the enslavement, segregation, and disenfranchisement of African-Americans.
But no honest person could possibly maintain that blacks possessed equal rights throughout these years. And that’s exactly the kind of thing we hear routinely about gun rights from the NRA and others who want you to believe that these “freedoms” were deeply inscribed in American life before the big, bad liberal state took them away.
Americans can debate whether they should be able to own guns, and under what conditions. They can even argue that the country would be better off with more guns, rather than fewer.
But one cannot say that our foreparents intended to give everyone the right to own a gun and carry it wherever they wished. That’s a fraud, to borrow Justice Burger’s phrase. I repeat the word: fraud. Saying it over and over again won’t make it true.