Kevin Sweeney: Guns, Militias, and the Second Amendment
February 5, 2013
Interview by William Sweet • Photo by Rob Mattson
The citizen soldier, ready to defend his family, property and liberty, is a powerful and cherished image, and one often invoked in debates around the Second Amendment and gun violence.
But that image just isn’t accurate. According to Kevin M. Sweeney, professor of American studies and history, the militia man isn’t who we think he is, and the Second Amendment doesn’t do what we think it does. In short, he says, the NRA and the Supreme Court need a history lesson.
The BBC recently interviewed Sweeney about guns in American culture, and he has co-authored a piece in the current Chronicle of Higher Education with Saul Cornell ’82, professor of history at Fordham University. Sweeney is at work on a book about guns in rural America.
Q: Your essay in the book The Second Amendment on Trial [forthcoming from the University of Massachusetts Press] is critical of the 2008 Supreme Court ruling that declared that the Second Amendment protects an individual’s right to own a gun in the home for self-defense. What did District of Columbia v. Heller get wrong?
A: Heller [argues that the Second Amendment] is all about self-defense, and the preferred method of self-defense by Americans is a handgun, which flies in the face of the fact that the Second Amendment was about the militia. [The decision also assumes] that the militia was an unchanging and all-inclusive organization of citizen soldiers. That was not true.
We tend to talk about “early American” as this time of no change from the 1620s to the 1800s, and homogeneous from the coast of Maine to the piney woods of Georgia. But for most of that period, a united country did not exist. Neither Delaware nor Pennsylvania had a permanent militia. Virginia and Maryland had select militias, in which not all males were expected to serve. In the 1600s, the militia was largely but not exclusively armed with the firearms of private individuals. By the 1750s, the levels of private firearm ownership went down, and it became necessary, in some instances, for colonial governments to provide firearms. Heller assumes that militia arms were all privately owned arms.
The concerns that led to the Second Amendment were not the fear that the government would go around taking people's firearms—I mean, most of these were firearms that the government didn’t want. [The founders] wanted some reassurance that states could arm the militia if the federal government did not. This is largely a debate that has been missed. But it’s clear that James Madison and many other Southerners who had poorly armed militias wanted the federal treasury to arm them.
Q: So how did those concerns transform into what we have as the Second Amendment?
When Madison drafted the original version of what became the Bill of Rights and introduced it to Congress, it read:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
The House drops the “well armed.” The Senate apparently attempts to go further: There seems to be a move in the Senate to prohibit the federal government from arming the militia, because they don’t want the federal treasury getting hit for this.
The Federalists were throwing some rhetorical bones to the Anti-Federalists. The Anti-Federalists wanted another convention to rewrite the Constitution, and they had been sort of bought off by promises that there would be amendments. There are certain rights in those first amendments—no excessive bail, trial by jury—you can trace back to the Magna Carta. But the Second Amendment, let alone the Ninth and 10th Amendments—God knows what they mean. They were just rhetorical, to quiet the Anti-Federalist critics. But I do think it’s clear that it’s about the militia. The Second Amendment is about self-defense? I just think that barely passes the laugh test.
Q: If the individual “right to bear arms” was not the intention of the authors of the Bill of Rights, where did this idea come from? The Old West?
A: I think Saul Cornell’s book A Well-Regulated Militia is the best study on how, largely during the 1800s, largely at the state level, the idea of an individual right to bear arms grew. While these arguments for individual rights were being made for state courts and eventually acknowledged in state constitutions, you also have concealed weapons laws being passed; you have ordinances by municipal governments in places like Kansas, in cow towns. If you went into Dodge, which is where the legendary and purely fictional Marshal Dillon of Gunsmoke worked, you had to check your gun. You’d drop it off in the marshal’s office and take a chit, just like at a hat check. They did not want drunken 20-year-old cowboys going around town with loaded revolvers.
Q: What is your personal opinion of gun ownership and regulation?
A: I don’t own guns. My eye tends to be one more inclined toward regulation. Some of the most effective things that could be done now are not the things that people are talking about. Under the law now, the Bureau of Alcohol, Tobacco and Firearms cannot make public trace data, [which is used to determine] where the weapons used in crimes come from. That data cannot be used in the relicensing or licensing hearings of firearms dealers or in the criminal prosecution of dealers or lawsuits against them. Studies undertaken by police forces and independent scholars show that the arms that end up in crime come from a minority of firearms dealers. [In a study of more than 500 homicides], Chicago police traced 20 percent of the guns they recovered in these homicides to one dealer.
For those who say, “We should enforce the laws that are on the books,” well, the NRA [along with other lobbyists] has done its best to have laws passed to limit the ability of the ATF to do that. The head of the ATF is one of the few sub-Cabinet-level appointments that needs Senate confirmation. [That’s why] there’s no permanent director of the ATF right now.
Q: Some liberal bloggers recently asserted that the Second Amendment was floated to court the South, because militias there were used to hunt escaped slaves. What’s your take on this?
A: Part of the role of militiamen in Virginia, North Carolina, South Carolina and Georgia was to serve in slave patrols. So, yes, those who today argue that the militia is a palladium of our liberties and freedoms have to remember that part of its purpose was to prevent insurrection. And, in the South, the likely insurrectionaries were slaves.
Q: That certainly flips on its head this whole notion that citizens need to be well-armed in case they need to rise up against the government.
A: The people who drafted the Constitution and later ratified the Second Amendment were not too keen on people rising up in arms against their duly-constituted governments. It’s just a nutty argument.
Q: As the Second Amendment is so routinely misunderstood, should it be repealed?
A: No. We expect the Supreme Court to adjudicate and interpret the meaning of these particularly—and in the case of Second Amendment, I believe deliberately—vague parts of our Constitution, but to do so in the light of established precedent. The bottom line of Heller is: You can’t ban handguns. Beyond that, I think there are something like 200 cases moving their way through the courts, trying to figure out what Heller means. It was just an invitation to chaos. Clearly it’s also had the effect of emboldening those who take an absolutist view of the Second Amendment, most of [whom] probably have not read Heller, let alone have a historically informed understanding of the Second Amendment.