Bearing Arms vs. Hunting Bears: The Persistence of a Mythic Second Amendment in Contemporary Constitutional Culture
History plays a prominent role in many modes of constitutional interpretation: from the decidedly ahistorical claims made by constitutional originalists, who believe historical meaning was fixed at some point in the eighteenth century, to proponents of a theory of a living Constitution who often make arguments about an evolving legal tradition, one rooted in the past but not frozen like a constitutional fly-in-amber. No area of contemporary constitutional law seems more burdened by the past than Second Amendment jurisprudence. Although there is no jurisprudential reason why the past should play such a preponderant role in the interpretation of this provision of the Bill of Rights, claims about the past have come to occupy an outsized role in debates about gun regulation. (By contrast legal arguments about the Fourteenth Amendment do not obsess about the past in quite the same way. Similarly, jurisprudence on the First Amendment and the Fourth Amendment have rarely turned on originalist arguments, even in the writings of Justice Scalia and Thomas, the two most prominent originalists to sit on the Supreme Court.) Given Second Amendment law’s historical obsession it is particularly important to separate historical myths about the Second Amendment and gun regulation from historical reality. Unfortunately, judges and legal scholars continue to construe the American past through a lens that is itself clouded by the accumulated dust deposited by layers of historical mythology.
The most prominent myth obscuring historical understanding of the Second Amendment relates to America’s frontier past. Although historical scholarship has effectively refuted this mythology, purging it from virtually all of the major college-level textbooks and the Advanced Placement U.S. history curriculum, constitutional culture, both inside and outside of the legal academy, has not. Prominent judges continue to take their cues about the American past from classic Hollywood westerns, Walt Disney’s The Adventures of David Crockett, and The Little House on the Prairie novels of Laura Engels Wilder. The result is a wildly distorted account of the Second Amendment’s origins and early American efforts at gun regulation.
The myth of the frontier is one of the most enduring in American history; it has been commodified and used to market everything from cigarettes to cars, and has been central to firearms sales for more than a century. It is a little shocking that the same myths used to sell cigarettes played a pivotal role in two federal appeals court decisions: Moore v. Madigan and Peruta v. San Diego. Both cases evoked “the familiar image” of an armed “eighteenth-century frontiersman . . . ‘obtain[ing] supplies from the nearest trading post.” Contrary to this mythic view of the American past, the bulk of the nation’s population in the eighteenth century was clustered along the coast, not the frontier. Nor is there any evidence that members of the Founding era such as George Mason or James Madison were thinking about the plight of the tiny percentage of the American people who lived on the frontier when they discussed the right to keep and bear arms in the Virginia Ratification Convention. The debates in the First Congress certainly do not afford much evidence that this was a major concern. Given the realities of American society at this point in the nation’s history, such concerns would have been odd. In 1790, the mean population center of the United States, a standard measure of population distribution, was situated somewhere between Baltimore and Philadelphia, not western Kentucky, northern Maine, or the Ohio valley.
Frontier mythology has shaped another aspect of the current debate over firearms policy and the law. In response to the horrific shooting at Sandy Hook Elementary School, the NRA’s Wayne LaPierre warned that the “the only thing that stops a bad guy with a gun is a good guy with a gun.”Setting aside the policy debates and statistics about the utility of armed self-defense, particularly in active-shooter scenarios such as schools, the suggestion that giving a guy a gun turns him into an effective agent of law enforcment, it itself part of a set of myths about regenerative violence dating back to colonial America. The leading historian of this mythology, Richard Slotkin, has charted how this motif has been constantly re-invented in American popular culture over the long arc of American history. David Crockett has morphed into Jason Bourne, and most recently the iconic image of a gun-toting hero is more likely to fight off alien invaders or the hordes of the zombie apocalypse than the marginalized others of earlier mythic tales of violence and redemption.
These myths once may have amused some Americans, but they have turned toxic in today’s political climate. Previous generations did not turn to such myths to argue against reasonable gun regulation. The simple fact is that as long as there have been guns in America they have been regulated.Historians can play a vital role in exposing the role of toxic myths in our current debate over firearms. Indeed, one of the problems with current efforts to reform America’s gun laws is the absence of compelling narratives to counter the gun-rights movement and gun lobby’s strategic deployment of myths such as the “good guy with a gun”to close off debate on reasonable firearms policy. Despite recent calls to repeal the Second Amendment, a move that seems both distracting and misguided, the real problem is not the text of the Second Amendment. Nor is the interpretation of it in District of Columbia v. Heller, the DC gun case that reversed seventy years of precedent and effectively rewrote the Second Amendment by setting aside the text’s preamble affirming the necessity of a well-regulated militia, a major obstacle to a broad range of gun regulations. Read in isolation the text of the Second Amendment tells us almost nothing about the scope of constitutionally permissible gun regulation. Under any theory of the Second Amendment, even Justice Scalia’s individual rights reading, regulation is not only permissible, but in some instances it is mandated. Individual states enacted lengthy militia laws in the era of the Second Amendment that gave government the power to compel citizens to bear arms. A Rhode Island law from 1794 is typical; it imposed a schedule of fines on those required to bear arms who failed to report to muster or acquire the necessary arms for participation in the militia. The idea of a well-regulated militia presupposed government authority to keep track of who has arms and proscribe how they were to be maintained and used. Neither history nor law stands in the way of effective and reasonable gun regulation. Constitutional politics, not constitutional law, is the primary obastacle to progress in this area. Changing constitutional politics means engaging with mythic accounts of the American past, exposing them, and fashioning new narratives that can inspire and motivate concerted political action. Historians have much to contribute to this project, and perhaps in the coming years the distortions wrought by outdated myths of America’s frontier past will no longer be an obstacle to enacting new and more effective policies to deal with America’s gun violence epidemic.
4 June 2018
About the Author
Saul Cornell is Paul and Diane Guenther Chair in American History at Fordham University.