Chapter 4
The Constitutional Compromise
The Constitutional Convention was dominated by nationalists, with one-third of delegates having served as Continental Army officers. The Constitution's military provisions proved especially contentious, granting Congress power to raise armies, maintain a navy, and regulate both federal forces and state militias. This represented a significant shift from traditional republican theory by moving ultimate militia command from states to the national government.
Elbridge Gerry of Massachusetts emerged as the most passionate critic of these military provisions, fearing standing armies and federal control of militias. He even proposed limiting the army to just "two or three thousand" men, drawing a rare sarcastic response from Washington. Despite Gerry's objections, the Constitution allowed for a standing peacetime army-a dramatic departure from revolutionary ideals.
George Mason and others raised concerns about the lack of a bill of rights in the final days, but the convention rejected this idea unanimously. This omission would prove a significant political error, as Anti-Federalists seized on the Constitution's failure to protect individual liberties during the ratification debates that followed.
The Constitution's publication sparked one of history's great public debates. While Federalists had powerful backing from Franklin, Washington, Hamilton, and Madison, opponents warned the new system tilted too far toward national power. Anti-Federalists feared the Constitution would allow monarchy's return, objecting to federal taxation powers, inadequate representation, and the trampling of states' rights. A significant concern was that the powerful central government could wield a standing army against citizen militias, which many saw as essential to liberty.
In Virginia, Patrick Henry dominated opposition, willing even to see Virginia break away. Debate focused on taxation, religious freedom, and military power-with George Mason objecting to Congress's authority over militias. Mason warned Congress might destroy the militia by "disarming them," while Henry proclaimed "The militia, Sir, is our ultimate safety." Virginia ultimately ratified 57-47, recommending amendments including "That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State."
Chapter 5
The Birth of the Second Amendment
James Madison, facing political necessity despite his reluctance, pivoted to support constitutional amendments during his congressional campaign. Writing to a Baptist clergyman, he carefully framed this shift: "Circumstances are now changed: The Constitution is established," explaining amendments could satisfy opponents while providing "additional guards in favour of liberty." This calculated position shift helped Madison win his election by just 336 votes.
Despite his new prominence in the House-effectively serving as Washington's prime minister-Madison struggled to generate interest in amendments. He privately called it "the nauseous project of writing amendments" while fearing a second constitutional convention that might cripple federal taxing power. Both Federalists and Anti-Federalists viewed amendments skeptically: supporters saw them as unnecessary "frothy garnish," while opponents dismissed them as a distraction-"a barrel thrown to the whale" to divert attention while "the harpoon of power" secured its prey.
On June 8, 1789, Madison finally presented his proposed amendments to an indifferent House. He framed them as therapeutic, meant "to quiet that anxiety which prevails in the public mind." His twenty proposed changes included protections for speech, religion, and notably, "the right of the people to keep and bear arms," connected to "a well armed and well regulated militia being the best security of a free country."
When Madison's proposed amendments reached the House floor, debate focused on the militia amendment's language. The House narrowly voted to retain "religious scruples" language exempting conscientious objectors from militia service. Elbridge Gerry objected to the amendment's vagueness, arguing it should specify "a militia trained to arms" to prevent standing armies. Throughout these debates, twelve congressmen discussed the right of "keeping arms" exclusively in the context of strengthening militias to prevent standing armies-none mentioned self-defense, hunting, or other private purposes.
The Senate reworded the amendment to its final form, removing "the body of the people" description and the conscientious objector provision. The amendments were then sent to states for ratification, though remarkably little record exists of these state debates. The Second Amendment's meaning has always been clouded by the sparse explanation left by its framers. While clearly focused on militias and preventing federal military domination, questions remain about whether it protected gun rights beyond militia service.
Chapter 6
The Decline of the Militia and Rise of Gun Culture
Shortly after the Second Amendment's passage, the militia system it was designed to protect began to crumble. The 1792 Uniform Militia Act required all "free able-bodied white male citizens" between eighteen and forty-five to enroll in state militias and purchase specific weapons-a remarkable government intrusion reflecting civic duty expectations. Yet the public largely ignored this law, with spotty enlistments and inconsistent enforcement of fines.
By the War of 1812, the militia system showed serious weaknesses when northeastern states refused to authorize militia defense of the coastline, allowing British forces to burn the White House. As America grew more individualistic, militia service declined, with popular illustrations shifting from heroic farmers to tipsy, slouching villagers.
As America approached civil war, the Second Amendment took on new dimensions through racial conflict and changing gun culture. The Supreme Court's infamous Dred Scott decision in 1857 listed "keep and carry arms" among the "privileges and immunities" that would dangerously empower Black Americans if granted citizenship-revealing both contemporary understanding of gun rights and deep racial anxieties.
Southern states, fearful of slave revolts, had disarmed free Black men while simultaneously growing more insistent on protecting slavery. The 1850s saw abolitionists abandon pacifism for armed resistance. When Kansas's territorial status was contested, Reverend Henry Ward Beecher declared Sharps rifles had "more moral power" than "a hundred Bibles" against slaveholders, leading supporters to ship weapons nicknamed "Beecher's Bibles" to Kansas.
When the Civil War erupted, Lincoln initially called for 75,000 militiamen but quickly pivoted to building a massive standing army after early defeats. The war transformed America's relationship with firearms as over three million men gained military experience and a vast arms industry developed. The militias that once enforced slavery now fought to destroy it, with armed political and racial conflict continuing after the war's end.
Chapter 7
The First Gun Control Movement
The early 20th century saw the first significant wave of modern gun control laws. In 1911, Tammany Hall politician "Big Tim" Sullivan championed New York's landmark legislation requiring licenses for handguns and criminalizing concealed carry outside the home. Despite opposition from small arms manufacturers, the bill passed with minimal resistance. Within a decade, similar "Revolver Acts" spread to states across the country.
Throughout this period, the federal government remained largely uninvolved in gun regulation. The Supreme Court had already established that the Second Amendment didn't apply to states, and twice more ruled it didn't create an individual right to gun ownership. In cases like Presser v. Illinois (1886) and Miller v. Texas, the Court maintained states could regulate firearms as they wished.
The Great Depression and Prohibition-era gangster violence prompted the first federal gun laws. Franklin Roosevelt's "New Deal for Crime" included the National Firearms Act of 1934, which heavily taxed and regulated machine guns and sawed-off shotguns. Even the NRA, then primarily a sportsmen's group, supported this legislation. A second federal gun law followed in 1938, regulating interstate gun trafficking.
The Supreme Court unanimously upheld these laws in United States v. Miller (1939), ruling that without evidence showing a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia," the Second Amendment offered no protection. The Court emphasized the amendment "must be interpreted and applied with that end in view" of ensuring effective militias.
Later gun control measures followed high-profile violence: the Gun Control Act of 1968 after the King and Kennedy assassinations, the Brady Bill after the Reagan assassination attempt, and Clinton's assault weapons ban in 1994. Throughout this period, courts generally deferred to democratic processes on gun regulation, with Chief Justice Warren Burger famously calling Second Amendment misinterpretation "one of the greatest pieces of fraud... on the American public."
Chapter 8
The NRA's Transformation and the Rise of Gun Rights
The National Rifle Association began in 1871 as a marksmanship training organization founded by Union officers concerned about poor shooting skills among their troops. Initially focused on safety and recreation, the NRA received significant government support-New York State provided a rifle range, and the federal government supplied 200,000 rifles to members at cost between the world wars.
Far from opposing gun control, the early NRA didn't object to Roosevelt's 1934 National Firearms Act. Their chief lobbyist testified before Congress, "I have never believed in the general practice of carrying weapons... I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses."
This cooperative stance began shifting in the turbulent 1960s. After Lee Harvey Oswald purchased his assassination rifle through an NRA magazine advertisement, Congress considered new gun laws. Though an NRA official initially testified that no "sane American" would oppose legislation addressing the president's assassination, the organization's tone soon changed.
The NRA's transformation crystallized with the "Revolt at Cincinnati" in 1977. After NRA leadership fired eighty staff members and planned to retreat from politics by moving headquarters to Colorado Springs, more than a thousand dissidents wearing orange caps and communicating by walkie-talkie showed up at the annual convention. By four in the morning, they had ousted the organization's leadership.
Activists from the Second Amendment Foundation and Citizens Committee for the Right to Keep and Bear Arms seized control. Neal Knox, editor of Gun Week magazine, became the NRA's head lobbyist, opposing all gun laws and even suggesting the assassinations of the 1960s might have been a conspiracy to disarm Americans. For the first time, the NRA explicitly embraced the Second Amendment as its central concern, declaring itself "the foremost guardian of the traditional American right to 'keep and bear arms.'"
The NRA's rightward shift mirrored similar transformations across the conservative coalition. Like Southern Baptist churches, which moved from supporting Jimmy Carter in 1976 to embracing fundamentalist leadership, and Jerry Falwell's Moral Majority, the NRA joined a wave of conservative insurgencies including the "tax revolt" and "sagebrush rebellion."
Chapter 9
The Legal Revolution: From Fringe Theory to Constitutional Law
Despite the NRA's growing influence, legal precedent overwhelmingly held that the Second Amendment did not protect an individual right to own guns. The Supreme Court had considered the matter four times (Cruikshank, Presser, Miller v. Texas, and Miller), never finding such a right. Lower courts agreed, and alternative interpretations were considered fringe positions.
Yet by the time the Supreme Court would hear Heller, momentum for a different view had built substantially through a tsunami of scholarship arguing the traditional view was wrong. From 1970-1989, while twenty-five articles supported the collective rights view, twenty-seven endorsed the individual rights model-with about 60% written by lawyers connected to gun rights organizations. Prominent writers like Stephen Halbrook, Don Kates, and David Hardy received substantial funding, while respected liberal scholars like Sanford Levinson and Akhil Reed Amar lent credibility to the movement.
The rise of the judicial right provided the necessary complement to gun activists' arguments. Conservative jurists came to dominate federal courts and relied on originalism-the doctrine that the Constitution should be interpreted according to what the Founding generation thought its terms meant-which came to dominate firearms jurisprudence more than any other major topic.
Antonin Scalia emerged as one of the most influential jurists in American history despite winning few allies among fellow justices and authoring surprisingly few major opinions. Born to an Italian immigrant father who taught classics, Scalia attended Xavier High School where he carried his rifle on the subway for ROTC shooting practice. Unlike most pragmatic American public figures, Scalia maintained a thorough, controversial constitutional philosophy throughout his tenure, advocating "textualism" focused on original public meaning rather than evolving interpretations.
The momentum to reinterpret the Second Amendment built through a combination of NRA militancy and academic scholarship. Senator Orrin Hatch's 1981 Judiciary Committee study claimed to uncover "clear-and long lost-proof" that the amendment protected individual gun rights. While Reagan's Justice Department initially resisted this interpretation as inconsistent with precedent and at odds with law enforcement priorities, the political landscape shifted after George W. Bush's election in 2000. Attorney General John Ashcroft formally reversed the government's seven-decade position in 2001, declaring "the text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Chapter 10
Heller and the New Second Amendment
In June 2008, the Supreme Court ruled 5-4 to strike down Washington D.C.'s gun law, with Scalia writing the majority opinion. For the first time, the Court held that the Second Amendment protects an individual right to own guns unrelated to militia service. Scalia's opinion employed a highly selective textual analysis that essentially ignored the amendment's prefatory clause about "a well regulated militia." He parsed individual words like "keep," "bear," and "arms" separately using 18th-century dictionaries while dismissing the military connotation of "bear arms" that dominated founding-era usage.
After pages of selective historical readings, Scalia abruptly departed from originalism to declare certain "sensible" limitations on gun rights-prohibitions on possession by felons and the mentally ill, bans in sensitive places like schools, and commercial regulations-without explaining their constitutional basis. The opinion declared handguns "the quintessential self-defense weapon" and elevated "defense of hearth and home" above all other interests, transforming a provision about militias into a personal right to handguns.
Justice Stevens wrote a dissent arguing the amendment was clearly intended to protect state militias, while Justice Breyer proposed an "interest-balancing" approach that would defer to elected lawmakers on gun regulations. Breyer's approach emphasized democracy as the Constitution's overarching theme, arguing courts should be cautious when overturning democratically elected bodies.
Politicians from both parties welcomed the Heller decision, with both John McCain and Barack Obama expressing approval. Justice Scalia proudly called it the greatest "vindication of originalism," though ironically, the 5-4 ruling perfectly aligned with the justices' political leanings. Progressive scholars recognized that the Court was responding to broader shifts in public attitudes about gun rights-all five justices in the majority had been appointed by NRA-member presidents.
Chapter 11
Living in the Post-Heller World
After Heller, lower courts have largely upheld existing gun regulations while acknowledging the new individual right. In Kachalsky v. Cacace, the Second Circuit upheld New York's strict concealed carry permit requirements, applying "intermediate scrutiny" and citing a century of judicial precedent supporting restrictions on "the handy, the usual and the favorite weapon of the turbulent criminal class."
Not all courts were as deferential. In Chicago, Judge Richard Posner-despite his public criticism of Heller's "tendentious interpretation" of history-struck down Illinois' ban on carrying loaded weapons outside the home. His opinion, possibly satirical in its extension of Heller's logic, reasoned that "a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment." This forced Illinois to become the last state to allow concealed carry, with rural lawmakers crafting legislation that even permitted carrying loaded weapons into bars, despite Chicago's epidemic of gun violence.
Overall, lower courts have made "judicial restraint their guiding principle," with Justice Breyer's pragmatic cost-benefit approach proving more influential in practice than Scalia's historical analysis. However, conservative judges like Brett Kavanaugh have begun pushing back, arguing that courts should assess gun laws based solely on "text, history, and tradition," not balancing tests-a view that may find favor when the Supreme Court next addresses gun rights.
The new constitutional framework for gun rights creates practical challenges for gun violence prevention. Judges must now weigh gun laws against Second Amendment standards, requiring advocates to prove policy efficacy-difficult given the deliberate suppression of research.
Some effective measures to curb gun violence appear constitutionally sound, like strengthening prohibitions on dangerous individuals possessing firearms, including those with misdemeanor convictions or juvenile felonies who show higher likelihood of later gun violence. Policing strategies have also shown impact, though evidence suggests the sheer number of officers in crime-ridden neighborhoods does more to reduce firearms violence than specific tactics.
Chapter 12
The Cultural Divide and America's Gun Debate
The gun debate increasingly reflects America's deep cultural divides rather than evidence-based policy discussions. The Second Amendment has become a battleground in this cultural war, likely worsening polarization.
Gun ownership has distinct demographic patterns-74% of gun owners are men, 82% are white, and they're nearly twice as likely to identify as Republicans compared to non-gun owners. The divide goes beyond politics to fundamental worldviews: individualists and those who respect authority tend to oppose gun restrictions, while community-oriented people support them.
Traditional gun culture is changing as hunting declines and fewer Americans serve in the military. The original militia context that shaped the Second Amendment has faded, yet AR-15s and military-style weapons grow in popularity among civilians who've never served. Wayne LaPierre's apocalyptic rhetoric after Hurricane Sandy and Sandy Hook-calling for armed guards in schools and claiming "only a good guy with a gun stops a bad guy with a gun"-reflects this worldview.
The story of the Second Amendment reveals three major lessons about our Constitution and how we interpret it. First, originalism proves untenable-the world of the Second Amendment is unrecognizable today. The Founders lived when every white man served in militia throughout adulthood, stored military weapons at home, and feared standing armies. When militias evaporated, so did the original meaning.
Americans uniquely allow centuries-old paragraphs to constrain how society protects itself today. This judicial restraint was once championed by progressives, then conservatives, but now the Court increasingly overturns democratically enacted laws. The current five-vote majority chosen by Republican presidents has positioned the Court against larger social trends-the rising electorate wants stronger government while the Court insists on a smaller one.
The third fundamental lesson is that how the Supreme Court sees the Constitution is ultimately up to us. Throughout history, the public has shaped constitutional law as much as jurists. The Second Amendment itself was added as a "tub to the whale"-a concession to popular discontent. Today's Heller decision reflects not the Framers' intent but current popular consensus won by focused activists.
For progressives to succeed, they must engage in popular constitutionalism-enlisting historians and social scientists, winning elections, and changing public opinion rather than relying solely on courtroom victories. The Constitution is best understood as a charter for vibrant democracy where "the right of the people" refers to our collective ability to set policies through messy but democratic processes.
