Guest Opinions

From Founders to today, the Second Amendment has posed no obstacle to sensible gun laws

To understand the Second Amendment to the Constitution, one should be aware of the practices regarding firearms around the time of its adoption. An article in the Feb. 23, 2018, issue of High Country News refers to research done by Saul Cornell of Fordham University and an article by him on that subject. Among his findings (for which he provides citations) are:

Registration: “All of the colonies — apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia — enrolled local citizens, white men between the ages of 16-60 in state-regulated militias… (and) kept track of their privately owned weapons required for militia service.”

Public carry: “The American colonies inherited a variety of restrictions that evolved under English Common Law.”

“The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence, including the ban on traveling armed in populated areas. Thus, there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons.”

Stand-your ground laws: “Under traditional English common law, one had a duty to retreat, not stand your ground. Deadly force was justified only if no other alternative was possible. One had to retreat, until retreat was no longer possible, before killing an aggressor.”

“The use of deadly force was justified only in the home, where retreat was not required under the so-called castle doctrine….”

“The emergence of a more aggressive view of the right of self-defense in public, standing your ground, emerged slowly in the decades following the Civil War.”

Loyalty oaths: “One of the most common claims one hears in the modern Second Amendment debate is the right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory. In fact. The Founders engaged in large-scale-disarmament of the civilian population during the American Revolution. The right to bear arms was conditional on swearing a loyalty oath to the government. Individuals who refused to swear such an oath were disarmed.”

These revelations appear to explain the reasoning behind the repeated refusals by the Supreme Court to hear challenges that would block gun regulation by the states.

Professor Cornell concludes: “Gun regulation and gun ownership have always existed side by side in American history. The Second Amendment poses no obstacle to enacting sensible gun laws. The failure to do so is not the Constitution’s fault; it is ours.”

G.W. “Bill” Tonkin, of Boise, is a retired CPA, gun owner, a fourth-generation Boisean and a World War II and Korean-era veteran.