Our Antebellum Second Amendment

“We can endure neither our vices nor their cure.” The Roman historian Titus Livius—“Livy”—wrote these words two thousand years ago. Livy’s concern was that some institution or other enters a society, at first with good or at least permissible reason. Then, through citizens’ caprices and ignorance, that institution takes on a hazardous shape it was never meant to assume.

The treatment of gun rights is just such a vice in America today. We use the intractability of the gun policy debate to avoid serious attempts to solve it. There is something about the Second Amendment that stupefies us. We unquestioningly assume that we can either be all-for or all-against, and retreat to our side and try to convince ourselves that words are enough. Congressional efforts to do anything of substance are at a standstill. Majority Leader Mitch McConnell (R-KY) has sidelined discussion of gun policy to attempt to tackle banking reform. There is no hope of Executive help: President Trump shocked Republicans with an almost pro-reform message, only to be apparently reined in by the NRA in a wholly innocuous unannounced private meeting.  The Senate Judiciary Committee will hold a hearing on March 14 to address the failure of law enforcement to preempt the massacre in Parkland; but given the glowing state of Washington bipartisanship, we shouldn’t hold our breath.

We know that the problem is hard, so we convince ourselves that there is no way forward. After all, there is no middle ground on gun control—the Second Amendment is unqualified, all-or-nothing. But where does this reading of the Amendment come from?

What I mean is this: is our reading of the Amendment consistent with the Framers’ understanding of it? Not likely. For our interpretation of the Second Amendment, and for the carnage and deadlock it has caused, we can thank the 1846 opinion of the Georgia Supreme Court in Nunn v. State: that citizens have the right “to keep and bear arms of every description.” Justice Antonin Scalia (among others) used his anachronous precedents to bring this Antebellum maxim into the current age. He did not consider that he was rubber-stamping a ruling meant to make slavery safer for slaveholders. 

The Atlantic observes that Antebellum courts sought to provide white citizens with protection against the enslaved and “a manly and noble defence of themselves” in the event of the not-infrequent duel. The Yale Law Journal further details that this widening of the Second Amendment was born in a one-sided cycle of racial fears. The violent intimidation of enslaved people created in their oppressors “a complete paroxism [sic] of fear” of retaliation, begetting the need to bear ever more arms. White slaveholders, strangely aware of the gross abuses they inflicted, feared those they abused and hid behind the Constitution. 

The year is 2018. If ever there was fruit from a poisoned tree in American jurisprudence, this is it. We are doing nothing of substance to advance a solution to the gun problem, because we misunderstand the Second Amendment as unqualified. We are unwittingly allowing the reasoning of a court in the service of slavery to dictate the terms in which we discuss the Second Amendment. We are using a racially motivated and inherently flawed interpretation of the law as an excuse for standstill. 

And that is the only thing which keeps us from progress: an interpretation. We use this interpretation, so clearly void of actual moral authority, as an excuse to do nothing. We imagine that there is no middle way, no chance of progress, not pausing to question why we assume this. Before we even attempt to fix the problem of gun violence, we assume that the problem matches our own narrow interpretation of it: the fight is all-or-nothing, there is no middle way, my opponents are incorrigible and there is no good opinion but my own. 

How quickly we forget the facts of the matter. Facts, as John Adams said, are stubborn things. We can thump our chests and plead our principles and make excuses as much as we please, but there are some simple realities which we can do nothing to change. Gun violence is a problem in America. Solving this problem is one of the great challenges of our time. Solving this problem will require long and difficult work. We use the certainty of this difficulty as an excuse to do nothing. We are content to forget gun violence in the span of a few news cycles. If we would fix this problem, we will have to work with people with whom we disagree: we must participate in this central inconvenience of life in a democratic society. We must do something more than sit still and forget. Write, speak out, write to your legislators, organize discussions, organize protests. Be better and do more. Otherwise, our silence will remain unbroken until the next shots ring out.