The Great Gun Fraud

The Second Amendment and the use and misuse of history

History is commonly twisted to support political causes in the present. But for my money, the worst modern historical fraud involves the Second Amendment of the United States constitution.

Everyone knows what that amendment says. Even non-Americans.

The right of the people to keep and bear arms shall not be infringed.

And we all know what that means. Americans have a right to own guns. Government cannot deny that right. No matter how many gun massacres happen, no matter how many people die, the right of the people shall not be infringed.

This reflects something else almost everyone knows about the United States: The personal ownership of guns has always been common, culturally accepted, and protected by American governments. Packing heat is as American as George Washington’s dentures.

Right?

Wrong.

For starters, that’s not what the Second Amendment says.

Here is the proper text:

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.

So unlike other rights, it clearly sets out a purpose for the right. Unfortunately, that purpose isn’t clear on its face. What is a “well regulated Militia”? And how does this relate to the “security of a free State”?

The secret decoder ring here is the National Rifle Association.

The NRA was founded in 1871. For most of its long history, it was an apolitical organization of sportsmen that promoted marksmanship and safety training so duck hunters wouldn’t shoot themselves in the toes. In the Eisenhower era, the NRA’s motto, emblazoned over its front door was “Firearms Safety Education, Marksmanship Training, Shooting for Recreation.”

But in 1977, a group of far-right activists led a coup, took over the organization, and changed the motto to: “The right of the people to keep and bear arms shall not be infringed.” Notice the stuff about Militias was omitted. The activists weren’t simply looking for something a little snappier. That omission was central to their audacious goal.

What followed that takeover was a deliberate, calculated, and wildly successful campaign to falsify popular perceptions of American history and change American constitutional law. It culminated in 2008, when the Supreme Court — for the first time in US history, please note — declared that the Second Amendment protected an individual’s right to own guns. It’s hard to overstate how radical that decision was. Until 2008 — a mere 17 years ago! — the Second Amendment did not protect an individual’s right to own guns. What it protected was the traditional form of collective security in the late 18th century, when the Constitution was written, which was local militias armed with muskets kept in town armouries, not private homes. That’s why the very first words of the Second Amendment are about “a well regulated Militia” — words that have effectively been erased by the success of the NRA’s fraud.

If you think this is a crazy left-wing conspiracy theory, please note that calling this whole thing a “fraud” is not my choice of language. I am merely quoting the following statement:

The gun lobby's interpretation of the Second Amendment is 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.

Which crazy leftist said that? It was Warren Burger, a conservative who was made Chief Justice of the Supreme Court by President Richard Nixon. He spoke those words in 1991, when the NRA’s fraud was spreading rapidly in conservative legal circles. (You can watch an angry Burger speak those words on PBS.)

Chief Justice Warren Burger would like a word with his fellow conservatives.

A few weeks ago, I remembered Burger’s words as I was compiling a list of lengthier history-related essays I intend to get to, sooner or later, on PastPresentFuture. So I put “the great Second Amendment fraud” on my list.

Then last week, I took a look at the latest releases from an excellent new history podcast I quite like — Journeys Through Time — and found that the hosts had beaten me to it.

For a moment, I must admit, I was a little miffed.

But then I thought, “hey, buddy, you’re writing a book about the social histories of technology. Focus!” So I decided that rather than write that essay, I would simply plug their show. (This isn’t a bitter pill, really. I’m a big fan of Sarah Churchwell, the co-host. In fact, while I’m at it, let me again recommend her excellent book, Behold America.)

You can find Journey Through Time wherever you get your podcasts. The series on the great NRA fraud is three episodes. Only the first two have been released at the time of writing, but I’m sure all three will be well worth your time.

That said, I want to add one further commentary before calling this a wrap.

I was a lawyer, in another life, so jurisprudence is an old interest of mine. And to understand just how spectacular the success of the NRA’s fraud really is, you need to know a few things about modern American jurisprudence.

Over the past five decades, American conservatism has gone all-in on a philosophy called “originalism.” It’s a simple idea: The interpretation of the Constitution should not evolve as the times evolved, and reflect the changing realities of America, but should instead remain grounded in the original intent of the drafters of the constitution. If the result is something modern Americans don’t like, they can, through their elected legislators, amend the Constitution. Judges are not legislators. They must stick to the original words as originally intended, whether they like the results or not.

Maybe that sounds sensible to you. Maybe not. It is at least a principled and coherent view.

It is also a view that makes history critically important. And this is where things get a lot less high-minded.

As I said at the outset, it is very common for people to plunder history to advance their political views one way or another. This is easily done, after all. As I’ve written before, history is, for human purposes, infinitely complex. So if you sift through it with sufficient intellectual dishonesty — grabbing onto anything that supports the conclusion you want supported while ignoring or rationalizing away anything that doesn’t — you can marshal extensive facts that prove you are right. No matter what you believe.

That matters for a number of reasons, not the least being that history is rhetorically powerful. “History proves it!” is compelling stuff for anyone. But for conservative “originalists,” history is more than that. For them, history is the final word.

And there’s something else you need to know about those judges.

They passionately oppose what they call “judicial activism,” which they invariably pin on liberals because, in the period roughly between the 1950s and the 1980s, the balance of seats on the US Supreme Court was held by judges of a liberal bent who weren’t shy about using their power to advance avowedly liberal ends. Gideon v. Wainwright. Roe v. Wade. Miranda v. Arizona. In these and many other cases, the liberal majority of the Supreme Court greatly changed the legal and social landscape of the United States. The conservative jurisprudential movements that rose to power over the last several decades — and that now dominate the Supreme Court — came about as reactions to that era.

So you have conservative judges who swear up and down that judges must be humble and never “legislate from the bench,” while also saying judges must stick to the original meaning of the Constitution, as revealed in the historical record. Given this, you may think such judges are exquisitely careful in how they assemble and assess historical evidence. Indeed, these judges must be as scrupulous as historians themselves.

If you believe that, I have some beachfront property in Saskatchewan I’d like to sell you.

Some of the worst abuses of history ever used in public debates have been committed by the conservative justices of the Supreme Court. They pick more cherries than any cherry farmer. They turn more blind eyes than Stevie Wonder. They make Donald Trump sound like Ron Chernow.

Do I exaggerate? Maybe. A little. For rhetorical effect. And because it’s fun. But honestly, what these “humble” originalists do to history in order to dress up naked political activism as sober jurisprudence is sometimes as shameless as Don Jr. at a crypto conference.

And nowhere is that clearer than in the Supreme Court’s gun rights decisions.

I won’t get into it in great detail now. For more, read this piece I wrote about Bruen, the 2022 landmark gun case in which the conservative majority decided that no gun control law could be upheld unless it fit with the “history and tradition” of American laws — meaning gun restrictions would only be upheld if there have always been similar restrictions. In that piece, I extensively quoted the dissent by Justice Stephen Breyer, which is brilliant and brutal. The conservative justices’ concern is not history. It’s politics. They are legislating from the bench. History is merely a curtain in the bedroom window which they draw to hide the orgy.

I think there was overwhelming evidence of this years ago. But the most shameless moment came last June, in a case called Rahimi, when the Supreme Court decided 8-1 that law forbidding someone under a domestic violence restraining order from possessing guns was constitutional. It was the first setback for the extreme gun nuts in many, many years.

You may ask, “what’s wrong with that? Wouldn’t it be insane to allow someone under a domestic violence restraining order to possess guns?” Yes, it would be insane. I agree. And every American who isn’t an absolutely crazed gun nut — or a domestic abuser — would agree. Across the whole political spectrum. A Supreme Court ruling protecting the right of domestic abusers under restraining orders to own guns would be about as popular as Jeffrey Epstein with a bad case of smallpox. So the politics — never mind the law, the politics — could not be clearer: Strike it down.

But remember, these conservative judges insist they would never “legislate from the bench.” And two years earlier, in Bruen, they had set that rule about American history — — meaning a gun restriction will not be permitted unless you can show similar restrictions going back to George Washington. In Bruen, the state produced a long list of earlier laws similar to the law in question, but the conservatives mumbled excuses in every case — and struck down the restriction. Here, there were no such earlier laws. None. Conclusion? It’s obvious. They have no choice but to strike down the restriction. That’s what their own test clearly says.

The judge who wrote the Bruen decision was Clarence Thomas. He was the only dissenter in Rahimi. In his dissent, Thomas wrote, “the court and government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”

To summarize: In Bruen, the conservative majority wanted to strike down the gun control law at issue so it dismissed as irrelevant a long list of similar laws in “American history and tradition.” But the same conservative majority in Rahimi wanted to uphold the gun control law at issue, so it did — even though there are no such laws in “American history and tradition.”

I’m no Clarence Thomas fan, to put it mildly, but he was the only one of the conservative justices willing to at least stick with the radical line they had so tortuously deployed in Bruen to knock down a law they didn’t like. The rest transparently abandoned their own reasoning when it became a political liability.

This has nothing do with history. It’s all about the orgy that modern American politics has become.

Now, if you’ll excuse me, I’m going to have a drink with the angry ghost of Warren Burger.