Although one could argue that the Second
Amendment’s framers wanted to specify that the
individual also had the right to “keep” as well as “bear”
And these regulations went well beyond safety concerns; they
sought to regulate guns and politics through loyalty oaths.
Well before the Second Amendment, the Continental Congress
encouraged states to pass laws to disarm loyalists who would not
swear an oath to America.
3 This practice continued well after
the Revolution and the Second Amendment.
4 After the Shays’
Rebellion in 1787, for example, the Massachusetts legislature
allowed pardons only if the rebels swore allegiance to the state
after delivering up their arms for three years.
To the founding generation, the one that drafted, debated and
passed the Second Amendment, what we would call “gun control” was nothing new. This in many ways supersedes whether the
Second Amendment provides an individual right to bear arms outside the military context. The founding generation accepted the
idea that government needed to regulate guns, and the Second
ARIZONA ATTORNEY MARCH 2015 52
1. This had to do as much with class as it did with race. The royalist and
landed class of Virginia made it illegal for both blacks and white servants to
bear arms. Also, the Massachusetts Puritans sought to deprive King Philip,
a Native American war leader, of his arms. Examples cited in Bachmann at
228. See also Nathan Kozuskanich, Originalism, History, and the Second
Amendment: What Did Bearing Arms Really Mean to the Founders?
PA. J. CONST. L. 413, 418 (2008), discussing contemporary usage of terms
in the context of regulations barring blacks from “bearing” arms.
2. Regulation shifted dramatically after the Second Amendment and the
War of 1812 when several states enacted laws against carrying concealed
weapons. Cornell & DeDino at 505–06. See also Clayton E. Cramer & Joseph
Edward Olson, Pistols, Crime, and Public Safety in Early America, 44
WILLAMETTE L. REV. 699, 702–06 (2008), discussing various pistol regulations
both before and after the Second Amendment.
3. Cornell & DeDino at 506. For example, in 1776, Massachusetts passed, at
the behest of the Continental Congress, an act that disarmed “such Persons
as are notoriously disaffected to the Cause of America, or who refuse to
associate to defend by Arms the United American Colonies … . [E]very Male
Person above sixteen Years of Age,” moreover, had to subscribe to a “test”
of allegiance to the “United American Colonies.” One who failed the test was
“disarmed … [of] all such Arms, Ammunition and Warlike Implements, as by
the strictest Search can be found in his Possession or belonging to him.”
4. Regarding prevalence of 19th-century antebellum gun regulation, see
Cornell & DeDino at 512–15. A Pennsylvania law, for example, took all guns
away from any person who “refuse[d] or neglect[ed] to take the oath or affirmation” to the state and the person could not even borrow another’s firearm.
Cornell & DeDino at 506.
5. Cornell & DeDino at 508–09. Also, the rebel could not serve as a juror,
hold government office, or vote “for any officer, civil or military.”
Amendment did not change this.
The only question then (and now) was the extent of the regulation.
The Self-Defense Myth
Ah, the iconic image of the frontiersman grabbing his flintlock off
the fireplace mantle to defend hearth and home … .
But once again, reality challenges the image. Even if the gun was
above the fireplace (having its finely crafted gun works gummed up
with soot), only a fool would have it loaded. The heat or spark from
the fireplace could set it off at any time, and if not, humidity from
cooking would have dampened the powder, making the gun useless.
Although one could argue the modern right to use a gun in self-defense is part of the right to privacy, the Second Amendment’s history does not support this argument.
8 The framers of the Second
Amendment would not have thought of guns as providing an individual right, rather than a collective right, of self-defense.
9 Guns at
the time were an impractical means of defending the home from
an intruder, though they could be used for collective self-defense
against slaves, French and Indians.
The better argument for this position, however, may be the Ninth
The Second Amendment
6. A somewhat farcical gun control argument to get around the
Second Amendment is to say that anyone can “keep and bear” any
gun they want but bullets should cost $100,000 each! Aside from
being an obvious sidestep of the gun policy debate, this argument
ignores that unless you use the gun as a club, it is the bullet that kills.
A bullet is the hard projectile (usually lead) that a firearm or air
gun propels. Technically the “bullet” (during the age of muskets it
was called the “ball”) is just the top part of the cartridge: a combination of bullet, casing or shell, gunpowder, and primer. The technical
advancement making bullets more effective killers at longer range
was the change in shape from the round “ball” to “conical” (cone
shaped). The 1823 “Norton” bullet (for British Army Captain John
Norton), the 1836 “Greener” bullet (for English gunsmith William
Greener), and finally the 1847 soft lead “minie” ball (for French
Captain Claude Étienne Minié) all led to our modern cartridge and
Of these 19th-Century bullets, the minie ball was the most suc-
cessful. It was more effective for two reasons. First, the shape was
more aerodynamic. (This is same reason that you can throw a foot-
ball farther and more accurately than a basketball.) Second, and
more important, the
minie ball was of soft
lead with a diameter
that would not engage
the rifled gun barrel
when the shooter
“rammed it home.”
Although the bullet did
not engage the rifling
on the way down, at
the moment of firing
the exploding gun-
gases caused the skirt
of the bullet’s hollow
base to expand, which
would then engage
the rifling as the bullet
traveled down the gun
barrel. This allowed
for great rapidity
of fire as well as
The modern cartridge:
1. the projectile bullet;
2. the case holding the
3. the propellant, usually
gunpowder or cordite;
4. the rim that hold the
case in place during
5. the primer that ignites
Engraving of Daniel Shays and Job Shattuck,
the leaders of Shays’ Rebellion
Shays’ Rebellion was an uprising in Massachusetts from 1786 to
1787. Led by Daniel Shays and known as Shaysites (Regulators),
the rebels were mostly poor farmers under crushing debt and taxes
who would often end up in prison or lose their land for failure to pay
taxes. The state militia easily put down the rebellion by early 1787.
But the rebels had much sympathy, and the rebellion energized calls
to reevaluate the Articles of Confederation and gave strong impetus
to the Constitutional Convention, which began in May 1787.
The conical bullet came just in time
to kill soldiers during the civil war.
Battle of Spottsylvania by Thure de Thulstrap
7. The musket over the fireplace
Even broken or obsolete guns were fine works of metalsmith and wood
and often family heirlooms. So why not display them over the fireplace?