Right to bear arms is not as clear as legal scholars claim

May 14, 2000

Don't look for the one "true" interpretation of the Second Amendment -- the controversial amendment concerning the right to bear arms -- because it doesn't exist, according to an Ohio State University scholar.

Saul Cornell, professor of history at Ohio State, is editor of the new book Whose Right to Bear Arms Did the Second Amendment Protect? (Bedford/St. Martin's, 2000). In the introduction to the book, Cornell notes that many legal scholars have mistakenly concluded that there is one correct interpretation of the Second Amendment: that it protected the rights of individuals to own guns.

However, historians in general are not so sure. While scholars of law are looking for the one true answer that will guide today's public policy, historians have looked at a broader perspective.

"Legal scholars, by and large, have homogenized the past. They have tried to find a single, monolithic notion of what the Second Amendment said," according to Cornell.

"But when you look at the documents of the time from a historical perspective, you find that there was a considerable range of opinions at the time the Bill of Rights was adopted. The question of who gets to bear arms is more complicated than most legal scholars believe."

The basic argument is whether the right to bear arms is an individual right -- like the National Rifle Association and many legal scholars assert -- or a collective right, one that belongs to state militias.

While there were differing opinions about gun rights in the 18th Century, Cornell said he believes most people of the time held the collective right position. This is the view that Cornell supports today.

"Even those people who believed in the rights of individuals to own guns tended to cede tremendous authority to the state to regulate guns. The notion of individual rights at that time was very different from the modern idea," he said.

In fact, the citizens of the 18th Century would have been bewildered by the current obsession with individual rights, Cornell said. The big debate at the time was not about individual rights; it was about the struggle between state and federal authority, the right of the people to enact laws to govern themselves.

Many of the original supporters of the Second Amendment were very suspicious of federal power, and were most concerned that their state militias have the right to protect themselves from the federal army.

"The same people who didn't want the federal government regulating their right to own guns showed little reluctance in allowing their own state governments to take aggressive measures to restrict access to guns," Cornell said.

For example, while Pennsylvania supposedly gave its citizens the right to own guns, the legislature in 1777 enacted a sweeping law, the Test Act, that disarmed as much as 40 percent of the state's white male population who were deemed to be "disaffected to the liberty and independence of the state."

Like Pennsylvania, many other states had laws that restricted who could own or possess guns -- there was no overriding individual right.

One of the current favorite theories among supporters of the individual rights interpretation is that the Second Amendment incorporated a right of revolution for American citizens. This argument says the founding fathers believed citizens should be armed in order to overthrow a government that was no longer representative of the people.

Cornell said the evidence contradicts this claim. "There is widespread agreement among historians that the state militias were far more likely to be employed to crush rebellion than to function as agents of revolution," he said. The most dramatic evidence was the Whiskey Rebellion of 1794 which occurred after the adoption of the Constitution and Bill of Rights. Angered by federal taxes on distilled spirits, farmers in western Pennsylvania took up arms, claiming to be carrying forward the principles of the American Revolution.

The unpublished sources on the Whiskey Rebellion showed that all of the people involved in drafting the Bill of Rights -- both Federalists and Antifederalists -- denounced the Whiskey Rebels' actions. "No one thought the Second Amendment gave these rebels the right to revolt against the government," Cornell said.

Cornell said he is troubled by the fact that most legal scholars who push the individual rights argument either ignore the rebellion or relegate it to a minor footnote in their accounts.

The problem is that legal scholars want to influence judges and lawmakers. That means they have to come down squarely on one side, and can ill afford to show the nuances of the debate or show evidence that doesn't support their theories, he said.

But Cornell said Americans need to have a more complete understanding of the various sides of this debate, which is one of the aims of the book. Whose Right to Bear Arms Did the Second Amendment Protect? contains six essays by leading historians examining the issue from several perspectives.

"The more the public can be made aware of the complexity of this topic, the more likely it is that the contemporary policy debates will move beyond slogans to a substantive discussion of the issues," he said.
-end-
Contact: Saul Cornell, 614-292-7858; Cornell.14@osu.edu
Written by Jeff Grabmeier, 614-292-8457;Grabmeier.1@osu.edu




Ohio State University

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