4/24/01

John Sanford, News Service (650) 736-2151; e-mail: jsanford@stanford.edu

History, law scholars discuss Second Amendment, guns in U.S.

Michael Bellesiles fired the first shot.

During the keynote lecture at a two-day conference on the Second Amendment, the Emory University history professor argued that America did not have a well-armed and capable militia before the Civil War.

Today, many people in the United States share a common belief that when the country was threatened the militia came to the rescue, Bellesiles said: "The militiaman rises from the table, grabs his trusty musket or rifle from above the mantle, which is ready to go -- it's clean, it's polished, it's loaded -- runs out and defends American liberty."

But this image is a myth, Bellesiles argued.

"The militia had failed in the Revolution, in the view of most national leaders," he said. "Now, if you suggest to any military historian who is alive today whom I know of, that in the War of 1812 the militia rose up, grabbed their muskets and rushed forth to defend the country and liberty, they would probably choke with laughter."

"The Second Amendment: History, Evidence and the Constitution" was held at Stanford Friday and Saturday. The conference, sponsored by the Law School and the Humanities Center, brought together historians and legal scholars who have helped to shape the ongoing debate about the meaning of that slippery clause with the tortured syntax:

"A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Two main schools of interpretation were represented at the conference: those who argue that the amendment protects an individual's right to own firearms, and those who believe the amendment allows states to regulate the use ­ and even the ownership ­ of firearms.

The author of the controversial book Arming America: The Origins of a National Gun Culture, Bellesiles argued that the militia was, for the most part, poorly armed, poorly trained and ineffective.

For example, when the English attacked Washington, D.C., in the War of 1812, most of the militiamen who were called upon failed to show up. Many of those who did show up didn't even have guns.

"Entire companies of militia stood around waiting for guns before the battle," Bellesiles said.

Guns at the time were heavy, bulky, difficult to maintain and inaccurate. Becoming proficient in their use required a great deal of training, Bellesiles said.

"It seems that the U.S. public was not terribly interested ... in either the militia or gun training between 1789 and 1860," he said.

Militia shooting matches in the early 19th century were often a joke. For example, the New Haven Grays, considered one of the elite companies, had their first shooting match in the early 1820s. A 6-by-4-foot target was placed 60 feet away from the shooters. Eleven percent hit the target, Bellesiles said.

When it was 20 feet away, half the company hit the target. "This was so embarrassing that they stopped [the matches] in 1826," Bellesiles said.

Seven states had to pass laws making it a felony to make fun of the militia during its exercises, he said.

One reason gun ownership in the United States was not widespread in the first half-century after the Revolution was the dearth of firearm production, Bellesiles said.

Until Congress created the Springfield Armory in 1794, no gun manufacturers existed in the United States. By the 1870s, however, things had changed. Samuel Colt had developed a way to mass-produce firearms, and the Civil War had resulted in better gun training for men. The war also helped to persuade men that the gun was a "good tool" for American life, Bellesiles said.

Muskets versus assault rifles

How have those tools changed over the last 130 years?

On Saturday, a panel of historians and legal experts discussed what the Second Amendment originally was supposed to have meant and how the clause should be translated today. Law School Dean Kathleen Sullivan moderated the discussion.

Sanford Levinson, a professor of law and government at the University of Texas and a Stanford Law School graduate, said that it does not make sense to interpret the amendment as a justification for citizens to own powerful weapons.

"Just as the Second Amendment might well be read as a protection against state tyranny, it would be extraordinarily anomalous to read it in a way that legitimized private tyranny," he said. "The kind of weapon that would be protected would be the kind of weapon that would be truly useful only in conjunction with others through a kind of community revolt."

Glenn Harlan Reynolds, a law professor at the University of Tennessee-Knoxville, has emphasized the importance of the right to keep and bear arms to safeguard against tyranny. Reynolds said the argument of increasingly powerful weapons should be made in the context of increasingly powerful governments.

He also noted that Americans are trusted with other kinds of dangerous implements. "Automobiles are quite dangerous and capable of producing many deaths, and, basically, everybody who's not a complete schlep can drive a car," he said.

However, Jack Rakove, professor of history and political science here, questioned the idea that widespread private gun possession helps to preserve American liberty. After 200 years, the nation's democratic creed is deeply ingrained in the culture, and tyranny would have difficulty finding a foothold even if citizens were forbidden from owning firearms.

Yale law scholar Akhil Reed Amar, a visiting professor of law here, agreed.

Gun technology 200 years ago "approximated the idea of one person, one vote," he said. "One person couldn't threaten hundreds."

Also, Americans had more reason to be worried 200 years ago about the potential for government tyranny, Amar said.

"We have less reason today to be as paranoid as they were about the central government," he said.

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By John Sanford