"The Second Amendment Doesn't Prohibit Gun Regulation - It In Fact Compels It," According to Professor Saul Cornell

A BUZZFLASH INTERVIEW

I think gun rights people need to recognize that gun control is also as American as venison pie, if you will. Gun regulation is just as American as gun ownership. -- Saul Cornell

Professor Saul Cornell has written a masterful and compelling story of American history in his new book, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Cornell's thoroughly researched book examines the Founding Fathers' concerns about the role of guns in the militia and follows the twists and turns of the competing ideologies about guns through the 19th century and beyond. Cornell's critically acclaimed book is a must-read for anyone interested in the history of guns in America and the so-called "gun rights" movement. 

Saul Cornell, professor of history at Ohio State University, is the author of The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828, and Whose Right to Bear Arms Did the Second Amendment Protect? He has delivered invited lectures at Oxford University, Columbia University, Duke, NYU Law School, UCLA Law School, Stanford Law School, and Vanderbilt University Law School.

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BuzzFlash: Your new book, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, states rather directly that the Second Amendment does not prohibit gun regulation, but in fact, it compels it. Your research and conclusion is quite striking to a lot of people.

Saul Cornell: The thing one has to appreciate in trying to understand the history of the Second Amendment is that we’ve had gun regulation as long as there have been guns in America. The Founding Fathers were not opposed to the idea of regulation. In fact, their view of liberty was something that they would have described as “well-regulated liberty.” The idea of regulation, the idea of reasonable government regulation, was absolutely essential to the way they understood liberty. In fact, in their view, if you didn’t have regulation, you had anarchy. Next to tyranny, anarchy was the thing they feared most. So it’s really almost impossible to understand the Founding Fathers and their world view, including their views of guns, without understanding that they were strongly committed to the idea of regulation. What’s interesting is that somehow this notion has completely dropped out of our modern debate.

BuzzFlash: You're saying that the contemporary understanding of the Second Amendment is radically different than how the Second Amendment was understood by the Founding Fathers?

Saul Cornell: Yes, that’s absolutely correct. The thing that’s easy to forget, unless you immerse yourself in the time period in which the Founding Fathers lived, is the great threat that they saw as a standing army. And against that idea, they developed this notion of the militia as a citizen’s army in which all white men essentially would be forced to contribute their labor, their time, and indeed, to provide their own gun and their own ammunition so that they could take up the goal of public defense.

And of course, nobody in contemporary America, even the most ardent gun-rights advocates, literally believe that they should drop whatever they’re doing at a minute’s notice and rush off to muster the way the Minutemen did. I mean, that’s how far we’ve gotten from the Founding Fathers’ world.

BuzzFlash: The problem the Founding Fathers had to solve was this issue of a standing army. That was absolutely the one thing they did not want. And yet they believed that the country had to have the ability to defend itself -- hence, the solution being the militia.

But later on, after they solved the national security problem, there was another and quite different threat. By allowing the prevalence of weapons and guns in the new country, they created somewhat of a monster, which was a gun violence epidemic in the cities -- in Boston, in New York, in Philly, etc.

The Second Amendment was designed to solve the first problem, meaning how do we defend ourselves without a standing army? But in doing so, there came this other problem in the form of a gun violence epidemic.

Saul Cornell: I think you’ve hit on an important change, an important historical development, that hasn’t really been appreciated until the publication of my book, because nobody really delved into this.

You’re quite correct to say that the problem for the Founding Fathers was how to create a well-regulated militia so that they would not have to have a powerful standing army. Of course, what they eventually realized is, in fact, they did need a standing army and you saw a push to reform the militia and to create a more effective professional army.

The second thing is, I would not call it a problem created by the Second Amendment. It’s an “unanticipated problem” that the Second Amendment really doesn’t help you solve. Once technology changes, and the market revolution engulfs America, then cheap handguns become readily available. Handguns were not a big problem in the founding era. They were relatively expensive and not very reliable.

Once you get this new change with handguns, and once you get this problem of interpersonal violence, then the question becomes: Can we get rid of this problem? What kind of laws can we pass? And basically most Americans and most courts conclude that the Second Amendment and the original provisions of the state constitutions about the right to bear arms really don’t address guns like handguns -- they’re really about the guns that the militia needs.

So the question then becomes can you regulate, and quite strenuously regulate, handguns? Can you even ban handguns? And of course, the conclusion I found, generally speaking, is yes. The state can do whatever it thinks appropriate with regard to handguns. The one thing they can’t do is pass laws which would, in effect, make it impossible for the militia to be armed.

BuzzFlash: The Founders did not want everyone to have full inclusion in the Bill of Rights. Some people had firearms, others were not allowed to have them. Some Americans were able to vote, others were prohibited, as we all know. One of the fears was a poor and armed populace. In terms of Shay’s Rebellion, would you say that that event, more than anything else, transformed the Founders and their understanding of how to deal with the militia?

Saul Cornell: Shay’s Rebellion is very important. For those readers who aren’t familiar with it, this is an uprising in Western Massachusetts that occurs shortly before the Constitution is written, and really does rattle the Founding Fathers. George Washington, in particular, is really quite upset about it. Of course, what it demonstrates is that any time a bunch of farmers or citizens decides to get together with their guns and call themselves a militia, they’re not going to enjoy Constitutional protection, because the Founders really were quite keen to distinguish between the well-regulated militias, which were under government authority, and an armed mob, which is how they viewed Shay’s Rebellion.

So Shay’s Rebellion is absolutely essential to understanding the Founders’ view of guns and the dangers posed by guns, and the dangers posed by armed groups acting without government authority.

The modern myth about the Minutemen is that they were just private citizens who went out on their own accord. But the Minutemen were the well-regulated militia. They were mustered. Their names were listed on muster rolls. They trained. They were acting under government authority. They were not acting under the authority of King George, but they were certainly acting under the authority of Massachusetts. So the key thing for us to keep in mind is that the Founding Fathers differentiated between an armed mob and the well-regulated militia.

BuzzFlash: The movement of a universal gun-rights ideology is rather twisted. In essence, modern gun-rights ideology was born out of pro-slavery judges in the South and radical abolitionists like John Brown in the North, each of whom embraced a violent ideology of self-defense. You write for example that John Brown is the bastard child of the gun-rights movement.

Saul Cornell: This was really one of the more surprising conclusions based on my research. There are two places in American law -- well after when the Second Amendment was written -- when you see something that starts to resemble modern gun-rights ideology later in the 19th Century.

And the two places you see it are among the most radical wing of the abolitionists -- people like John Brown, who basically were on a mission from God to end slavery, by armed violence. Whether it’s trying to free slaves by seizing Harper’s Ferry, or massacring slave owners in Kansas, John Brown really sees the right to bear arms as this God-given right, and as something that each individual can exercise according to his own conscience. That’s anarchy. That would have been anarchy for the Founding Fathers.

Now on the other extreme, interestingly -- on the other side from the abolitionists before the Civil War -- the only examples of an individual right to bear arms comes from pro-slavery judges in Southern states.

And in just one anomalous case, they actually held that the right to bear arms, under state constitutional law, meant you couldn’t regulate it in a reasonable fashion. This was rejected by all the other courts, but it’s these interesting judges in the slave South who obviously think that it’s important that everyone have a gun, because they’re in constant fear over the dangers of a slave insurrection. So it’s interesting that the two extremes of American Constitutional thought in this period on the opposite sides of the slavery issue find the clearest exposition of a modern gun-rights-style ideology.

BuzzFlash: Based on your research, people like Thomas Jefferson and others who had a very expansive or unregulated view of bearing arms were the losers in the original gun debate. Pro-gun supporters today quote people like Jefferson who were on the losing side of that debate as evidence that there was this God-granted individual right to bear arms. They, in fact, were on the losing side of the debate, and they work quite hard at rewriting history.

Saul Cornell: That again was really fascinating and is what drew me to this topic in the first place. I was interested in how the “losers” from our first great Constitutional debate -- the anti-Federalists and Thomas Jefferson -- how their ideas are being resurrected by gun-rights ideologues in the modern debate. That’s really what drew me to this topic.

Jefferson is a great case in point because there’s no question that Thomas Jefferson is a brilliant mind. There’s no question he’s a great lawyer. There’s no question that he’s endlessly fascinating. There’s also no question that he’s absolutely out of touch and unrepresentative of what his countrymen are thinking in many respects. All you have to do is walk through Monticello to get a sense of how exceptional a man he really was. And he does propose this much more expansive conception of a right to have a gun, but it clearly is not the conception that carried the day when Virginia drafted its Declaration of Rights. Again, Jefferson and the anti-Federalists lost that debate.

BuzzFlash: You write that in the 19th Century, gun control became more restrictive, not less. Why was that?

Saul Cornell: Well, this was one of the most important consequences of my research. What happens within almost a generation, you start seeing a different kind of regulation emerge. You start seeing something that could really genuinely be called gun control. The laws are not just about safe storage. It’s not about just the misuse of firearms. It really is trying to restrict the ability to use certain types of firearms which are perceived to be a particular threat to public safety.

The first kinds of laws are bans on the right to carry concealed weapons. Of course, permitting “carry-concealed” has recently been the goal of gun rights advocates, driven by the dubious work of people like John Lott whose work has been now widely discredited. Historically, this has always been viewed as a bad idea. After these initial laws against concealed carry, states began to pass even more robust regulation, and in effect, banning certain kinds of guns.

So what happens is you get this new social problem. Legislators grapple with it. They pass laws. Some people challenge the laws. Then the courts get into the game and say, well, this has nothing to do with the right to bear arms.

And most of the courts come to the conclusion that when you carry a pistol for self-defense, you’re not bearing arms. You only bear arms when you carry a musket to muster, or in some other militia-related activity.

BuzzFlash: Well, this is an important point because it’s difficult to imagine being a congressman back in the 19th Century, or even a mayor, and watching your community be devastated by gun violence, and sitting back and saying, “Well, I’d like to do something about this gun violence problem, but, hell, I can’t.” I mean, it just doesn’t make sense that lawmakers would be prohibited from solving essentially any problem, much less a gun problem.

Saul Cornell: I think you’re right. I think there’s almost no right in our legal tradition which is absolute. Every right is subject to reasonable regulation, and guns are no exception.

There’s been an effort among gun rights people to equate guns with words. I think that’s a serious mistake. I think that guns clearly are very different than words, and have always been treated very differently than words in American law. And it’s for an obvious reason -- you know, sticks and stones may break your bones, but guns can really kill you.

BuzzFlash: You say that we essentially have two histories in parallel order: one, a history of gun ownership in our country, and on the other side, a history of gun regulation -- and they’re not at odds with each other.

Saul Cornell: Right. What I hope emerges from this book is that each side in this debate, if they’re intellectually honest and genuinely concerned about the common good, will recognize that the right to own guns, although not guaranteed by the Second Amendment, is deeply rooted in American history. For that reason, I don’t think anyone has to worry about all guns being confiscated or all firearms being prohibited. There are just too many guns in America and too long a history of gun ownership in America for that to be a reasonable fear. I think gun control people really need to understand that gun ownership is deeply rooted in American history, although not linked to the Second Amendment.

At the same time, I think gun rights people need to recognize that gun control is also as American as venison pie, if you will. Gun regulation is just as American as gun ownership. Once each side recognizes that, maybe we can begin to move forward and find that middle ground which will allow us to enact reasonable gun policies that will produce the goals we want, which is to reduce gun violence.

BuzzFlash: What are the implications of your book?

Saul Cornell: I would say there are three implications. First and foremost, this is the first comprehensive scholarly history of the struggle over the right to bear arms, and the struggle between gun rights and gun control. So whichever side of the debate you’re on, this is the book you need to read to understand how we got to our current impasse, and to realize that our current impasse is not somehow inevitable, but it’s a product of a very interesting, sometimes ironic, sometimes tragic history. So that’s first and foremost.

Second, I think there’s no question that the history of gun regulation illustrates the point made by the great poet Shakespeare, “The fault, dear Brutus, is not in our stars, but in ourselves.” Again, we have two traditions in America: a history of gun ownership and a robust history of gun regulation -- and they are not opposing ideas.

The third point is that the great tragedy of the contemporary debate over guns is that the Second Amendment once functioned as this great unifier of Americans -- culturally, politically, and legally. Now it’s a very divisive issue. Some people claim to be pro-Second Amendment actually view the Second Amendment as authorizing them to either take up arms against their government, or to fire on their fellow citizens. Rather than unite us, the Second Amendment now divides us. This is really most unfortunate.

I think all Americans, whether you own guns, don’t own guns, whether you’re pro-gun, anti-gun, have a vested interest in the Second Amendment. And originally the Second Amendment was a great source of Constitutional pride and really helped knit the nation together behind a common Constitutional culture. And it’s just quite sad that we live in an age when it’s so corrosive to our common Constitutional culture.

BuzzFlash: Professor Cornell, thank you so much for your time.

Saul Cornell: Thank you.

A BUZZFLASH INTERVIEW

Interview Conducted by BuzzFlash Senior Editor Scott Vogel.

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Resources:

Order your copy of Saul Cornell's A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.

Saul Cornell's bio: http://history.osu.edu/people/person.cfm?ID=4

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