Clayton E

In September, I was invited to speak at Northwestern University School of Law at a symposium organized by the Federalist Society and the National Rifle Association. The topic was the direction of Second Amendment law. It was a privilege to be invited—I was the only non-lawyer speaking, and one of a small number who was not a professor. (Being unemployed at the moment—as I suspect more than a few of my readers also are—certainly made it easier to accept the invitation!)

My topic was: What arms are protected by the Second Amendment? The reason that this matters is that D.C. v. Heller (2008), which struck down the District of Columbia’s handgun ban, was not terribly clear about exactly what “arms” are protected by the Second Amendment. Professor Nelson Lund of George Mason University spoke at the symposium about how Justice Scalia’s opinion, while purporting to support an original public meaning understanding of the Second Amendment (“What did the public in 1789 understand the Second Amendment to protect?”), really did not. Justice Scalia’s opinion in Heller was inconsistent, and seemed more intended to justify the current laws, which allow strict regulation of machine guns, silencers, short-barreled rifles and shotguns, but generally allows law-abiding adults to own handguns and sporting arms. (Scalia was surprisingly silent about whether scary-looking semiautomatic weapons—“assault weapons”—are protected arms.)

There are now several suits working their way to the U.S. Supreme Court challenging various state weapons control laws as violations of the Second Amendment. In New York, a ban on possession of nunchakus in your home is under challenge.1 The NRA is challenging Chicago’s ban on registering handguns not already registered in 1981.2 For this reason, it is very important to clarify what arms the Second Amendment protects.

It was fashionable for a while for those who rejected the individual right view of the Second Amendment to ridicule it with one of two extreme definitions of what arms were protected: either it only protects single-shot muzzleloading flintlocks and other arms that were present in 1791, or the Second Amendment protects a constitutional right to bear nuclear weapons.

The first of these claims is pretty ridiculous. The rest of the Bill of Rights is not limited to eighteenth century technology and ideas. You don’t need to publish your opinions on a hand cranked, hand-inked printing press to take advantage of the First Amendment’s protection of freedom of the press. Your right to freedom of speech is just as protected on YouTube as it is standing on a soapbox in the village square. Similarly, we enjoy the right against unreasonable search and seizure not just in our literal papers but in our notebook computers. As an example, in Berger v. New York (1967), the U.S. Supreme Court found that use of a microphone for secretly recording conversations without a warrant issued upon probable cause violated the Fourth Amendment.3

Yet the “right to bear nuclear weapons” claim does raise a serious question: are there circumstances that the Framers could not have imagined when writing the Bill of Rights? Without question—but technological change alone is not sufficient to make certain rights out of date. Nor does technological change means that the Second Amendment only protects the use of antiques. The Framers lived in an era alive with technological change, some of it minor, some of it quite fundamental (and some of it the work of the Framers): the balloon; the lightning rod (invented by Benjamin Franklin); bifocals (Franklin again); the Franklin stove (guess who?); carbonated water; the spinning jenny; the sextant; interchangeable parts; the steam engine; the cotton gin. Each, in its own way, big or small, changed the world.

Perhaps the more useful question is whether a technology of today had a functional equivalent in 1791. A nuclear weapon—even a small nuclear weapon, such as the “backpack nuke” developed by the U.S. during the Cold War4—had no functional equivalent when Congress was debating the Bill of Rights. A fleet of warships could conceivably destroy a single coastal city such as New York City or Boston, but the time required to carry out such an attack and the opportunity for a city’s coastal batteries to defend the city meant that the loss of life had no equivalent to even a single small nuclear weapon’s destructive effects today. Armored vehicles, bombers, helicopter gunships, and poison gas, are also clearly without a 1791 functional equivalent, and would not qualify as “arms” protected by the Second Amendment.

Small arms technology has certainly advanced since 1791. But while the hazards of advancing arms technology have grown, the advantages of other advancing technologies and improved social organization has roughly kept pace. A recent law review article by myself and Professor Joe Olson points out that while a criminal or madman using a modern handgun is capable of discharging an order of magnitude more bullets than his 1791 equivalent (who would likely have carried 4-6 single shot pistols), the advances in medical care, improved communications, and emergency services to respond to such an incident, as well as the ability of intended victims to efficiently return fire, mean that the number of dead from such a crime would not be even an order of magnitude worse with modern firearms.5

It is hard to imagine a category of arms in common use today that did not have a functional equivalent in 1791. Handguns, rifles, shotguns—all were common weapons. Even weapons that are especially fearsome today, such as short-barreled shotguns, were commonly owned when the Second Amendment was written. I was surprised at how often blunderbusses appear immediately before and during the Revolution in civilian hands, and treated as unremarkable.6 Impact weapons were also common—and while the nunchaku that figures in Maloney v. Cuomo would almost certainly have been unknown in 1791, it is functionally no different than a half-staff, a club, or any other striking weapon that has existed since the first human picked up a tree branch.

Even the apparent leap of repeating firearms is less dramatic than it first appears. There are repeating firearms in the seventeenth and eighteenth centuries, including the ancestor of the machine gun. There were multibarreled firearms, capable of firing multiple shots without reloading, almost from the beginning of putting gunpowder and bullets together in a tube, such as these early Renaissance weapons:

They are certainly clumsy and heavy weapons—but they show that weapons designers from the start knew the value of repeating firearms, and sought to create them. Less successful—and more dangerous (at least to the shooter)—were single barreled weapons that held multiple charges, such as this repeating matchlock, in which the shooter moves the burning slow-match mechanism along the barrel from pan to pan. 7

Repeating magazine-fed firearms date back to at least the 1600s.8 An Antonio Constantine made this magazine fed repeater sometime in the seventeenth century:

It isn’t completely modern: you have to insert the bullet each time. You also turn a lever to load the powder and primer then lower the muzzle to get the powder into the chamber. But it sure isn’t a single-shot muzzle-loading musket, either. Constantine’s gun was not unique; there are a number of surviving examples of repeating, magazine-fed firearms made in Amsterdam, Liege, and Hanover in this period.9 Nor were these simply one-off experiments. Some British soldiers were issued magazine-fed repeating guns as early as 1658.10

Gun makers were building revolving repeaters early enough that one in the Tower of London is reputed to have been owned by Henry VIII. The revolution of the barrels wasn’t done mechanically, like a modern revolver; instead, you rotated to the next chamber manually.

Similar revolving matchlocks with from three to eight cylinders exist that were made in France and Germany in the seventeenth century, and at least one flintlock “six-shooter” survives from the early eighteenth century.11 Concealable “pepperbox” handguns firing five to seven shots without reloading were in use by the end of the eighteenth century.12 While most surviving pepperbox handguns are percussion system, and therefore nineteenth century, there are occasional references to flintlock pepperbox handguns.13

The Puckle Gun is another of the early signs that repeating firearms were possible, even if not completely practical because of the limitations of manufacturing. A London lawyer patented a repeating, breech loading, flintlock weapon in 1718, and in a 1722 public demonstration, Puckle fired 63 shots in less than seven minutes. Even more impressive is that he did this during a driving rainstorm—which would have been a remarkable accomplishment for a squad of soldiers armed with the single shot muskets of the time. (Rain hitting the pan of matchlock and flintlock arms made it impossible to ignite the powder.)14

All of these repeating arms show that the Framers’ protection of an individual right was not because they could not imagine repeating firearms. Nor did they need to imagine them; they existed, even if imperfect in their operation.

Every common small arm of today seems to have had a functional equivalent in 1791 America. By contrast, there are a number of weapon classes that are very tightly controlled today, but had functional equivalents in 1791 that were apparently widely owned, and considered appropriate weapons for civilians to possess. A 1786 fire safety ordinance of Boston, cited by Saul Cornell as evidence that America had very strict gun control laws,15 prohibited keeping loaded “fire-arms, or any bomb, granade, or other shell… in any house, outhouse, barn, stable, store, ware-house, shop, or other building….” in Boston, with similar restrictions on keeping one’s mortars or cannons loaded.16 A 1789 Philadelphia ad offers a variety of guns and related goods for sale, including “hand grenades.”17 While a 1789 hand grenade was probably equivalent to a pipe bomb today in its destructive power (since it would have been loaded with black powder, not a modern high explosive), this law and ad are a reminder that the Framers lived in a society that was prepared to tolerate widespread ownership of deadly weapons—even very destructive weapons, such as cannon and hand grenades.

As I have mentioned in previous columns, one of the great changes that took place over the last forty years has been the deinstitutionalization of the mentally ill—the decision that people suffering from the most severe mental illnesses would not be hospitalized against their will unless they were an immediate danger to themselves or to others. The research that I have been doing for my next book shows that there was surprisingly little mental illness in Colonial America—and those who were perceived as severely mentally ill were likely to be institutionalized before they got around to killing others. This remained the pattern in America until the 1960s, when a variety of marvelous theories about mental illness were tried out in a few states, such as New York and California. When these marvelous theories failed, the bad ideas were then applied in the rest of the country. Soon, random acts of mass murder in public places went from shocking, to something that no longer surprises us.

The Second Amendment’s guarantee of a right to keep and bear arms did not become obsolete because of technological advancement, but because our society abandoned many of its traditional notions of what made for a just and humane society—including providing care for the severely mentally ill. Perhaps, instead of seeking ways to rationalize that “arms” that are functionally equivalent to those of the Constitutional era are not protected by the Second Amendment, it might be better to ask if we should make our society better conform to how the Framers thought.

Clayton E. Cramer lives in Horseshoe Bend, Idaho. His most recent book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie was published by Nelson Current in 2006.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is http://www.claytoncramer.com.

2 National Rifle Association v. Chicago, 08-4241, 08-4243 & 08-4244, (7th Cir. 2009).

4 Robert S. Norris, Steven M. Kosiak, and Stephen I. Schwartz, “Deploying the Bomb,” in Stepehen I. Schwartz, ed., Atomic Audit: The Costs and Consequences of U.S. Nuclear Weapons Since 1940 (Washington: Brookings Institute, 1998), 155.

5 Clayton E. Cramer and Joseph E. Olson, “Pistols, Crime, and Public Safety in Early America,” Willamette Law Review 44:4[2008] 719-21.

6 William Black, “A Practical Joke” in Albert Bushnell Hart and Mabel Hill, Camps and Firesides of the Revolution (New York: Macmillan Co., 1937), 43-45; Richard Frothingham, History of the Siege of Boston, and of the Battles of Lexington, Concord, and Bunker Hill, 6th ed. (Boston: 1903), 94-95; Browne, Archives of Maryland, 12:246.

7 William Wellington Greener, The Gun and Its Development (Cassell and Co., 8th ed. 1907), 78-80.

10 A. V. B. Norman and Don Pottinger, English Weapons & Warfare: 449-1660 (Dorset Press 1979), 206-07.

14 James H. Willibanks, Machine Guns, An Illustrated History of Their Impact (ABC-CLIO, 2005), 22-23; Jonathan B. A. Bailey, Field Artillery and Firepower (Naval Institute Press, 2003), 187 n. 192.

15 Center to Prevent Handgun Violence, Second Amendment Symposium: After the Emerson Decision, Setting the Record Straight on the Second Amendment, 64, http://www.gunlawsuits.org/pdf/defend/second/symposium.pdf, last accessed September 25, 2004.

16 “An Act in Addition to the Several Acts Already Made For The Prudent Storage of Gun-Powder Within the Town of Boston” (1786). Professor Cornell provided me a copy of the ordinance, September 22, 2004.

17 Edward Pole, Military Laboratory, at No. 34… (Philadelphia: R. Aitken, [1789]), in Library of Congress Printed Ephemera Collection, Portfolio 147, Folder 9a.