Origin of Everything

[intro music] (host) When did the Second Amendment a "well-regulated militia" and start being about individual gun ownership?

And did you know that the answer has to do with the KKK, German Socialists, and Al Capone?

As one of the most hotly contested and vaguely worded sentences in history, the full text of the Second Amendment says, "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."

So, this intellectual crossword puzzle was added to the Bill of Rights by James Madison and his crew of Anti-Federalists.

When they were ratified in 1791, the Anti-Federalists expressed nervousness about the newly formed federal government gaining too much power over the states or becoming tyrannical.

So, the language of the Second Amendment was geared towards curbing the central government's power over individual political dissenters.

But today, the Second Amendment and gun-control debate is framed almost exclusively around the right to bear arms, without too much discussion of "well-regulated militias."

And there's a reason for that.

Because even though the story of gun rights and gun legislation is often debated in the court of public opinion, when it comes to questions of constitutional interpretation, there's really only one court that reigns supreme, and that's, well, the Supreme Court.

So, for this episode, I'm going to trace the five major rulings made by the Supreme Court on the Second Amendment.

Case 1: United States v Cruikshank.

Well, it took a while before the highest court in the land heard a case on the Second Amendment-- 1876, to be precise.

And that first case actually involved the KKK and states' rights in the wake of the Civil War.

After the conclusion of the Civil War, the newly reunited nation was in the midst of Reconstruction when they passed the 1870 Enforcement Act, which was designed to prevent mobs, run by private citizens and groups like the KKK, from blocking newly freed Black citizens' access to Constitutional rights, which seems like a good law.

But, in 1873, a mob of white residents who were sometimes collaborators of the KKK and would later go on to form a terrorist group called the White League in 1874, murdered an estimated 100 African Americans who had occupied the Colfax, Louisiana, state house.

Three of the members of the mob were convicted of violating the 1870 Enforcement Act under the charge that they had prevented Black citizens from assembling peacefully, exercising their right to vote, and that they had curtailed Black citizens' Second Amendment rights to bear arms.

However, the court ruled that the Second Amendment was only designed to stop the federal government from infringing on citizens' right to own arms as a safeguard against potential tyranny.

Therefore, state governments, and other private citizens, couldn't be charged with taking someone else's right to bear arms away.

But the question of the militia and what defines a "well-regulated militia" actually lasted through the next two Supreme Court rulings on the Second Amendment.

And that brings us to case 2: Presser v Illinois.

Herman Presser was part of an armed citizen militia of workers in Cook County, Illinois, that had ties to the Socialist Labor Party, and he led a group of several hundred armed citizens through the streets in protest in 1879 and was found guilty of violating Illinois' estate laws about who could organize a militia.

Essentially, the law stated that, unless you were a member of an already-recognized volunteer militia of the state of Illinois, the federal government, or had special recognition from the governor, then you could not organize an independent militia.

And Presser disagreed, stating that the Second Amendment protected his group's right to organize a militia to protect themselves from tyranny.

But the Supreme Court disagreed, saying that, while the federal government could not limited well-regulated militias, the state government could.

So, armed militias were allowed, but only if the state agreed to it.

But that wasn't the last we heard of the Second Amendment because the dawn of the 20th century brought us even more debate about how and why someone would organize a militia and what kinds of weapons were necessary in these efforts.

And the surprising culprit behind this new twist was none other than Al Capone and the mysterious Valentine's Day Massacre of 1929.

Case 3: United States v Miller.

Okay, so we're back in Illinois, specifically Chicago, on February 14, 1929, when seven criminal associates of mobster George "Bugs" Moran were gunned down in a garage.

And, although most people suspected the infamous Al Capone was behind the hit job, no one was ever brought to trial for the murders, which have now become something of American historical folklore mixed with a heavy amount of conspiracy theory.

But the Valentine's Day Massacre and similar crimes like it began to shift the cultural conversations around gun ownership more towards what kind of guns it was reasonable for a private citizen who was unaffiliated with any type of law enforcement or military to carry.

But the militia debate was still a big part.

In 1934, the federal government passed the National Firearms Act which imposed taxes and restrictions, including new registration laws, on certain kinds of guns, like machine guns, and sawed-off shotguns.

And the ambition here was not only to impose new taxes but also to limit the use and spread of guns that were frequently used in the commission of gang crimes like the St. Valentine's Day Massacre.

So, back to the Supreme Court.

A man named Jack Miller and another man were found guilty under the current version of the National Firearms Act of carrying an unregistered sawed-off shotgun across state lines, which was one of the restricted weapons.

And when his case, United States v Miller, reached the Supreme Court in 1939, the court stuck by the legality of the National Firearms Act, noting that "in the absence of any evidence "tending to show that possession or use "of a sawed-off shotgun "has some reasonable relationship "to the preservation or efficiency "of a well-regulated militia, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument," thus reinforcing the federal government's ability to regulate particular types of guns.

Okay, so three out of the five Supreme Court rulings on the question of the Second Amendment focused on states' rights versus federal rights and the organization of militias.

But when did we start to see the current interpretation of the law as just "the right to bear arms"?

And how did the shift from "a well-regulated militia" to arguments about individual self-defense occur?

Well, the National Firearms Act proved to be pretty contentious.

It required that people transferring, as well as those who were already in possession of restricted firearms had to pay taxes on the gun and also report those weapons to the government.

As a result, the Treasury Department could give information to state governments about people who registered the restricted or banned weapons, and those people could be prosecuted under state laws.

So, in the 1968 Haynes case, the Supreme Court found that this regulation violated gun owners' protection from self-incrimination under the Fifth Amendment, and as a result, the 1934 act became virtually unenforceable.

We also have to add the NRA into this story because in 1977, the National Rifle Association experienced a huge shift in their political agenda.

Prior to the 1977 convention, known as the "Revolt in Cincinnati," the NRA's agenda in the mid-20th century focused heavily on hunting, conservation, and marksmanship.

But the new contingent that took over that year's convention was invested in transforming the agenda to center squarely on individual gun ownership and a narrower interpretation of the Second Amendment.

From this point forward, the group gains traction as a gun's rights lobby organization and moves from a relatively bipartisan hobbyist group to a political powerhouse that makes individual interpretations of the Second Amendment as a key part of its agenda.

So, we're just up to our final two Supreme Court rulings on the Second Amendment from 2008 and 2010, and these ones absolutely, 100% have to do with an individual's right to gun ownership.

But they're less way-back history and more current headlines, and both of these decisions mark a pretty big shift from the court's previous rulings on the matter.

The 2008 ruling in District of Columbia v Heller found that restrictive gun regulations in the District of Columbia were an infringement on an individual citizen's rights to bear arms for the purposes of lawful self-defense, even outside of any well-regulated militia.

And a similar decision in 2010's McDonald v Chicago found that Second Amendment rights could not or should not be limited by state governments since Chicago had enacted gun regulations that prevented many, if not most, private citizens from purchasing handguns.

These two recent decisions focused heavily on the individual right to bear arms and less on the well-regulated militia.

So, how does it all add up?

Well, even though Heller in 2008 and McDonald in 2010 represent the current status of rulings on the Second Amendment, the fact that they center individual gun ownership for the purposes of self-defense and not the regulation of militias could stem from a couple of different avenues.

The first is that, after the Civil War, the National Guard took up the mantle of state protection, making militias less central to interpretations of the Second Amendment.

The second is that, around the 1920s and 1930s, we started to see an increase in discussion not only of what makes a well-regulated militia but also what kinds of guns should or shouldn't be protected under the Second Amendment.

But these rulings all focused on stopping the federal government from limiting the Second Amendment and heavily favored the states.

However, although Heller did determine that the right to lawful individual gun ownership was protect under this current interpretation of the Second Amendment, the late Justice Antonin Scalia did note that the right to self-defense and individual gun ownership under the Second Amendment is not unlimited.

So, whichever side you believe is correct, it looks like this debate will continue to rage on.

Accessibility provided by the U.S. Department of Education.

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