Since taking office, President Joe Biden has repeatedly stated that the Second Amendment is not absolute, and to make his point he has often said that individuals couldn’t own cannons. That is certainly a fact that would surprise those Americans who attend such events as the annual Ohio Civil War & Artillery Show, where cannons are fired throughout the day—and even offered for sale. Simply put, there was no such prohibition on the ownership of cannons or any weapon when the Founding Fathers drafted the Constitution.
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The significance of the Second Amendment is also worth considering as only the freedom of speech, press, assembly, and religion, as well as the right to petition the government for redress of grievances was considered in a prior amendment. It could therefore be further suggested that the Founding Fathers actually considered the Second Amendment to be one of the most important additions to the Constitution.
It clearly states, “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.”
Gun control advocates have argued that the inclusion of the words “well regulated Militia” would imply that this means firearm ownership would fall under the purview of a National Guard—however, numerous scholars and the Supreme Court of the United States (SCOTUS) note the multiple subjects in the sentence. Just as the First Amendment lays out that there is free speech as well as freedom of the press—not a “free speech” for just the press/media—then the Second Amendment should be seen to include the need to maintain a militia, which has evolved into our standing military AND the right of the people to keep and bear arms.
The Framers In The Modern Context
Another longstanding argument made by the gun control movement is that the framers of the Constitution would not have been able to envision today’s semi-automatic modern sporting rifles—what those advocates have so erroneously described as “assault weapons.” The argument they take is that firearms of the era were typically single-shot, muzzle-loading flintlock rifles and pistols.
Forgotten is the fact that repeating firearms did exist. Key among them was the Kalthoff Repeater, which was developed more than a century before the drafting of the Constitution. Though a complicated design, it was capable of firing 30 to 60 rounds per minute.
In addition, there was the Belton flintlock, which could fire up to sixteen consecutive shots in as little as 20 seconds. Joseph Belton had actually offered the weapon to the Continental Congress, yet, was turned down due to its unproven abilities. However, it was clear that the lawmakers who drafted the Constitution at least understood the concept of rapid-fire weapons.
A second point to make is that the Second Amendment didn’t specify between military and civilian firearms—because at the time the lines blurred so greatly that there was no distinction. A weapon used to put food on the table was also carried by the men (and a few women) when they went off to war. Moreover, it should be noted that many of the civilian weapons—notably the Pennsylvania long gun—were superior to the firearms issued to the military.
Comparing the Amendments
Another significant point is at the time of the drafting of the Second Amendment, there were no restrictions over the type of firearms that could be owned—despite what President Biden has argued.
There was never a law on the ownership of cannons. Merchant vessels of the day were often armed with cannons due to the continued fear of piracy. What finally put an end to armed civilian vessels was the western world’s decision to end the practice of employing privateers who could prey on merchant craft, and not a ban on ownership of such weapons.
Few of those details would appease supporters of gun control, who would still argue that a modern AR-15 isn’t what the framers had in mind when the Second Amendment was written. However, that can be easily countered by the fact that the framers couldn’t have envisioned radio, television, or the Internet. The type of content found in our modern media would have shocked, and likely appalled those men with their 18th-century values. With few necessary exceptions, the First Amendment continues to protect free speech.
Yet, the Second Amendment has been repeatedly challenged in the past 100 years.
Origins of Gun Control
President Biden is patently wrong when it comes to the early restrictions of the Second Amendment. However, that doesn’t mean that there hadn’t been some early forms of gun control. In the early days of the United States of America (and even in the colonial era under British rule), one particular group of individuals was barred from owning guns—namely slaves. In addition, the sale of firearms to Native Americans was also largely banned and continued throughout nearly the entire 19th century.
Those are ugly parts of our history that gun control advocates often fail to share. Few also talk about the “Black Codes,” which many southern states passed to restrict African Americans from possessing firearms.
Frontier and Gun Control
In the 19th century, it was also common for frontier towns to ban the carrying of guns within city limits. The image of the western town on the frontier was a lot less violent than movies and TV would have many believe. Yet, due to the fact that cavalry wasn’t typically available to ride in and save the day, guns were marketed to civilians.
As previously noted, those firearms differed little from what the U.S. military had in its arsenal.
It wasn’t a ban that explains why more civilians didn’t have cannons—they just didn’t have any need. Cannons of the era were big and heavy, took a trained crew to fire, and ammunition was expensive! The same was also true for the early repeating weapons such as the Gatling Gun and the first machine guns were developed at the end of the 19th century.
Civilians could buy such weapons, but few actually did.
Even after the First World War, firearms such as the Thompson submachine gun and Browning Automatic Rifle (BAR) were sold on the commercial market. In the case of Auto Ordnance, the maker of the Thompson, the company had offices with a showroom on Broadway in New York City. As the military hadn’t shown a great deal of interest in the “Tommy Gun,” it was marketed to ranchers as a way to deal with rustlers!
The First Gun Control: National Firearms Act of 1934
The gangland wars that took part due to prohibition are what led to the first true federal gun control effort, the National Firearms Act of 1934. It was passed after the sensational St. Valentine’s Day Massacre of 1929, and the assassination attempt of President Franklin Roosevelt.
A common misconception is that it outlawed machine guns and other firearms. However, the law didn’t “ban” the sale of automatic weapons, but instead restricted civilian ownership by imposing a rigid background check requirement along with a transfer tax/fee.
Interestingly, the tax was set at $200—which essentially doubled the price of the Thompson. The gun’s sales had never actually been that strong, as $200 was more than what a new car cost at the time. According to the Bureau of Labor Statistics, in 1934, the average person earned $1,524 per year. Few civilians could afford such an expensive weapon, but even the use of the weapon by gangsters is largely another Hollywood invention!
What is also notable is that despite inflation, the transfer fee remains set at $200 today. It should also be added that there was some compromise among lawmakers with the passage of this first federal gun control effort. While the NFA put restrictions on automatic weapons, as well as short-barreled rifles and shotguns, it was originally drafted to put the same restrictions on handguns. In the end, the final bill removed handguns—but the calls from gun control advocates have maintained in recent years.
Federal Firearms Act of 1938 — The Beginning of Record Keeping
The next big federal regulation came just four years later with the Federal Firearms Act of 1938, which required gun sellers to obtain a license from the Internal Revenue Service to sell guns, but also to maintain a record of purchases. Prior to that point, guns were sold by hardware stores, grocers, and department stores and treated like any other merchandise.
United States Vs. Miller – The First SCOTUS Case Involving Firearms
Even in the 1930s, not everyone was happy with these new restrictions that included Jack Miller and Frank Layton – who were indicted on charges of unlawfully and feloniously transporting in interstate commerce from Oklahoma to Arkansas an unregistered double barrel 12-gauge shotgun having a barrel less than 18 inches in length, in violation of the National Firearms Act, 26 U.S.C.S. § 1132c et seq. (“Act”). At their trial in federal district court, the defendants filed a demurrer to the indictment alleging that the Act was not a revenue measure but an attempt to usurp police power reserved to the states and so was unconstitutional. Defendants further argued that the Act violated the Second Amendment to the United States Constitution.
After the district court seemed to side with the defendants, the case ended up going to the Supreme Court. Neither the defendants nor their legal counsel appeared at the Supreme Court due to a lack of financial support. Miller was found shot to death in April before the decision had been rendered. Today, the ruling has been seen as so muddled that both sides claim that it supports their position.
Gun Control Act — New Restrictions
Little would change for nearly the next three decades until the assassinations of President John Kennedy, Attorney General Robert Kennedy, and Dr. Martin Luther King, Jr., led to the passage of the Gun Control Act of 1968. It imposed stricter licensing and regulation of the firearms industry.
The act also regulated imported guns, expanded licensing and record-keeping requirements, banned mail-order sales of guns and ammunition, raised the age at which one can legally buy a gun, and prevented convicted felons, mentally ill people, and illegal drug users from buying firearms.
Following the passage of the 1968 Gun Control Act in November 1968, the federal government also initiated a 30-day amnesty to allow registration of previously unregistered firearms—essentially no questions asked. More than 50,000 firearms were registered during that very brief amnesty period. That included many World War II machine guns, which returning G.I.’s had brought home in huge numbers some 20 years earlier.
In addition, some firearms were removed from the NFA list—and declared “primarily collector’s items and not likely to be used as a weapon” and thus described as “Curios and Relics.” Many other weapons were found to be antiques—pre-1898—were completely exempt from registration.
Creation of the ATF
It was four years after the passage of the Gun Control Act (GCA) that the Bureau of Alcohol, Tobacco, and Firearms was created as a part of the Treasury Department. Even though it has been renamed the Bureau of Alcohol, Tobacco, Firearms, and Explosives, it is known simply as the ATF and has since become a separate law enforcement organization within the U.S. Department of Justice (DoJ).
Firearm Owner’s Protection Act of 1986
The next legislation came in 1986 and has been seen as a mixed blessing for supporters of the Second Amendment. It was the Firearm Owner’s Protection Act (FOPA), which revised some of the terms of the Gun Control Act of 1968. It was also meant to reduce the allegations of abuse by ATF inspectors—with the case being made it was harassing some Federal Firearms Licenses holders out of business. The act mandated that ATF compliance inspections could only be done once per year unless multiple record-keeping violations were recorded during an inspection.
However, the act also contained a provision that banned the sale to civilians of machine guns manufactured after the date of enactment (May 19, 1986), restricting the sale of those firearms to the military and police. As a result, the price of machine guns has increased considerably. In truth, there is little evidence that any legally owned machine gun has been used in a crime—and the one case that is often cited took place decades ago.
Gun-Free School Zones
In 1990, in response to an increase in gun violence in schools, the Gun-Free School Zones Act was passed into law. It specifically prohibits any unauthorized individual from knowingly possessing a loaded or unsecured firearm at or around a school. Sadly, it has done nothing to stop senseless mass shootings at our nation’s schools.
However, it wasn’t the only law that was enacted that has failed to make the streets safer.
Brady Handgun Violence Prevention Act
On November 30, 1993, President Bill Clinton signed into law the Brady Handgun Violence Prevention, which required federally-licensed firearms dealers to conduct background checks before selling guns to prospective buyers. Prohibited purchasers could include felons, fugitives, domestic abusers, and the mentally ill. The law was named after James Brady, White House Press Secretary under President Ronald Reagan. The law exempted private sales in many states—which led to the term “gun show loophole” being coined by gun control advocates and widely used by the media.
Another component of the Brady Handgun Violence Prevention Act was the creation of the National Instant Criminal Background Check System (NICS), a database used by the Federal Bureau of Investigations (FBI) to conduct background checks. It went into effect in the fall of 1998. The NICS Improvement Amendments Act of 2007 (NIAA) mandated that executive departments and agencies provide relevant information, including criminal history records, certain adjudications related to the mental health of a person, and other information, to databases accessible by the NICS.
Some of the gun control efforts were challenged in court, including Printz v. United States (1997). SCOTUS found that the Brady Law’s waiting-period requirement was constitutional, yet stated that the mandatory background checks required of local authorities were unconstitutional.
Two notable federal laws were passed in 1994 – the first was the Violent Crime Control and Law Enforcement Act, which included a “three strikes” life sentence for repeat offenders of violent crime, while it also provided additional money to hire 100,000 new police officers, $9.7bn in funding for prisons, and an expansion of death penalty-eligible offenses. Many critics of the bill, however, have argued that the funds are focused more on punishing marginalized people than preventing the crimes that they commit by supporting them earlier in life.
Federal Assault Weapon Ban (AWB)
The other bill was also controversial. It was the Federal Assault Weapons Ban (AWB), which ended the production of new AR-15-style firearms. Yet, it was so rife with loopholes that neither supporters nor opponents believe it did much. It lacked a technical definition of what exactly was an “assault weapon.” It expired in 2004.
Smith & Wesson Settlement
In 2000, firearms manufacturer Smith & Wesson reached the first settlement of its kind, after the many lawsuits brought against it by municipalities around the country, including Atlanta; Berkeley, California; Bridgeport, Connecticut; Camden, New Jersey; Detroit; Gary, Indiana; Englewood, New Jersey; Los Angeles, Miami-Dade; San Francisco; St. Louis; and Washington, D.C.
That settlement required Smith & Wesson to change the way it designs and distributes its products, while it was also required to install safety mechanisms including child safety locks and “smart gun” technology, and only to sell to authorized dealers who can prove that the guns they sell are not disproportionately used in crimes.
Protection of Lawful Commerce in Arms Act
In addition to the expiration of the 1994 assault weapon ban (AWB) in 2004, a year later, the Protection of Lawful Commerce in Arms Act (PLCAA) was signed into law by President George W. Bush. It was meant to protect firearms manufacturers and dealers from being held liable when crimes are committed with their products.
Those companies may, however, be held liable for negligence if they have reason to know a gun is intended for use in a crime. Despite the law, gun maker Remington was successfully sued for the Bushmaster rifle that was used in the tragic 2012 Sandy Hook Elementary School massacre.
District of Columbia v. Heller/McDonald v. Chicago
SCOTUS also has heard two landmark cases involving gun control. The first was 2008’s District of Columbia v. Heller, where the highest court ruled the Second Amendment protects an individual’s right to possess a handgun at home.
Dick Heller was a D.C. special police officer, and because of his title, he was allowed to carry a handgun while on duty at the Federal Judicial Center. However, when he tried to register for a handgun he wanted to keep at home (for self-defense), the District rejected his request. Because he does not threaten public safety, the court ruled that D.C.’s prohibition is unconstitutional.
According to Justice Antonin Scalia, “The Second Amendment protects Heller’s right to possess a firearm, even if such possession is unconnected with service in a militia.”
Two years later, SCOTUS ruled self-defense is a legal right in the case of McDonald v. City of Chicago. Otis McDonald, a retired custodian, and he and others filed suit in U.S. District Court to challenge a 1982 Chicago law that banned the new registration of handguns.
The National Rifle Association (NRA) and others also filed separate lawsuits challenging the Chicago law. Each of the two suits alleged that the law violated the right of individuals to possess and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in District of Columbia v. Heller.
During the global coronavirus pandemic, U.S. sales of firearms hit record levels—in part due to an increase in first-time gun buyers, which include women, young people, and minorities. Despite that fact, the Biden Administration has been on a mission to take on “gun violence” with calls for new legislation, as well as Executive Actions.
In June, President Biden signed into law the first major gun safety legislation passed by Congress in nearly 30 years. The legislation included incentives for states to pass so-called red flag laws that allow groups to petition courts to remove weapons from people deemed a threat to themselves or others.
Biden’s FY 2023 budget also proposed $32 billion in additional funding to fight crime, including $20.6 billion in discretionary funding for federal law enforcement and state and local law enforcement and crime prevention programs, an increase of 11% over FY22 enacted ($18.6 billion) and 18% over FY21 enacted ($17.5 billion).
In addition, the DoJ issued a final rule to “rein in the proliferation” of so-called “ghost guns” or privately-made firearms; and issued a proposed rule to better regulate when devices marketed as firearm stabilizing braces effectively turn pistols into short-barreled rifles subject to the NFA. The ATF also issued a final rule that clarified firearms dealers’ statutory obligations to make available for purchase compatible secure gun storage or safety devices.
Latest SCOTUS Ruling
Also in June, the Supreme Court struck down a New York handgun-licensing law that required New Yorkers who want to carry a handgun in public to show a special need to defend themselves. The 6-3 ruling, written by Justice Clarence Thomas, is the highest court’s first significant decision on gun rights in over a decade.
In what has been seen as a far-reaching ruling, the court made clear that the Second Amendment’s guarantee of the right “to keep and bear arms” protects a broad right to carry a handgun outside the home for self-defense. Going forward, Thomas explained, courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.
After reviewing nearly seven centuries’ worth of historical sources, beginning in the 1200s and going through the early 1900s, Thomas concluded that although U.S. history has at times placed some “well-defined restrictions” on the right to carry firearms in public, there was no tradition of a broad prohibition on carrying commonly used guns in public for self-defense.