President Joe Biden has been getting some flak this week over recent statements he made about the Second Amendment and the right to own a cannon. “The Second Amendment, from the day it was passed, limited the type of people who could own a gun and what type of weapon you could own,” Biden asserted. “You couldn’t buy a cannon.” The Washington Post’s fact-checker Glenn Kessler on Monday gave Biden “Four Pinocchios” for this remark, while gun rights activists have been snickering. While Biden did misstate the history—specifically, cannons were never explicitly outlawed in the Founding era—his critics, such as gun rights champions Glenn Harlan Reynolds and David Kopel—are guilty of analogous distortions and are even less reliable guides to the history of the Second Amendment and gun regulation. More importantly, Biden’s basic point was not particularly controversial. Guns have always been regulated, and the Founding generation always balanced gun rights and the need to promote the peace and public safety.
While Biden’s specific claim was wrong and poorly worded, he could have easily made his point by saying something like the following: At the time of the Second Amendment, there was nothing to prevent government from regulating arms, including dangerous or unusual weapons. Sir William Blackstone, one of the most important legal commentators on English law, expressly stated this principle in his Commentaries, a text that Justice Antonin Scalia quoted in his opinion recognizing an individual right to own a firearm in District of Columbia v. Heller. Indeed, Scalia in that opinion made this point himself:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
So, what about cannons? Whatever the law was at the time, there is not much evidence that private citizens were dragging cannons, howitzers, or mortars around the city of Boston, New York, or Philadelphia while Congress was debating the Second Amendment. In fact, these pieces of artillery were relatively expensive and difficult to manufacture. To be sure, some militia companies in the era of the Second Amendment, such as the Ancient and Honorable Artillery Company of Massachusetts—a private militia unit that was legally chartered by the state—owned such items. Similarly, given the dangers of piracy, merchant vessels would have been outfitted with cannon. These facts, though, do not undermine the actual point Biden was trying to make, even if he made the point infelicitously.
Part of the problem with such exercises in antiquarianism and originalist literalism is that they miss the larger point about trying to translate 18th century legal principles and practices into modern terms. When modern gun rights activists say that there was no law against owning a cannon in the era of the Second Amendment, they are either being presentist or disingenuous. Claiming that there was no law against something in the past does not establish that a constitutional right to own it existed; it merely describes a social practice at a particular time and place. If people had started dragging cannons around Philadelphia, it is likely the state of Pennsylvania would have passed a law regulating the practice. The reason that laws against specific types of weapons did not emerge until decades after the Second Amendment was written and similar state constitutional provisions were enacted was because America did not have a gun violence problem at the time of the Second Amendment. When the market revolution of the Jacksonian era made cheap, reliable, and easily concealed handguns widely available, states did pass laws regulating and, in some cases, banning these weapons. Although a few judges in the slave-owning South viewed these laws as impermissible violations of the right to keep and bear arms, many judges saw no problem with such laws. Indeed, even some of the Southern slave-owning judges most sympathetic to gun rights acknowledged that limits on carrying dangerous weapons in public were legitimate exercises of the state’s police powers. In contrast to the National Rifle Association’s view that guns are what makes us free, the generation that wrote the Second Amendment had an instrumental view of guns as tools that could be used for good or bad. The Second Amendment was not America’s first freedom; the right of the people to pass laws to promote public health and safety was America’s true first freedom. Judges in the early decades of the 19th century began to refashion this 18th century right into a new judicial doctrine, the police power. Understanding the meaning of this power and its centrality to Second Amendment jurisprudence is essential to recover the real original understanding of the right to keep and bear arms, not the historical caricature advanced by gun rights advocates.
Gun rights activists have adopted an absurd theory of the police power to support their libertarian fantasies. According to their view, the police power is like frequent flyer miles: If you don’t use it, you lose it. In a variety of cases gun rights activists have interpreted the absence of a law as evidence of the existence of a right. In fact, the absence of a law typically tells you almost nothing about rights. More often the lack of regulation only demonstrates that a problem did not exist and hence there was no legislative need to pass a law. In the License Cases (1847), the Supreme Court described the scope of the police power as follows:
[The police power] is not susceptible of an exact limitation but must be exercised under the changing exigencies of society. In the progress of population, of wealth, and of civilization, new and vicious indulgences spring up, which require restraints that can only be imposed by new legislative power. When this power shall be exerted, how far it shall be carried, and where it shall cease, must mainly depend upon the evil to be remedied.
Although Biden did not get the history right in this instance, the constitutional principle he identified was uncontroversial at the time of the Second Amendment. His understanding of constitutional law in this regard is far more accurate than that of the gun rights libertarians who have mocked him. We the people acting through our representatives do have the awesome power to pass laws to regulate and, where necessary, prohibit weapons that pose a threat to public safety. One can argue over the policy merits of such legislation, but the constitutional validity of this idea should be beyond dispute.
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June 29, 2021 at 11:41PM
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Biden Was Wrong About Cannons but Right About the Second Amendment - Slate
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