The minds that framed the Constitution had none of the gun culture’s faith in “the law-abiding citizen”: the airy belief that most people are cool and rational agents. Until America relearns its skepticism, progress on gun violence will be impossible.
Mass shootings would not have surprised the founders. A government that tolerates them would.
The American polity is based on a theory of social contract, which held that people are good yet flawed, intelligent but dangerous. It is, wrote the philosopher John Locke, who inspired the founders, because men are “partial to themselves” and prone to “revenge” that they exchange the heated passions of nature for the settled authority of government. Liberty was safety, which could not be achieved outside the law. “[F]or who could be free,” Locke wondered, “when every other man’s humour might domineer over him?” “Freedom then is not,” he insisted, “a liberty for everyone to do what he lists, to live as he pleases, and not to be tied by any laws.” Rather, “liberty is, to be free from restraint and violence from others.”
The French philosopher Montesquieu, another point man for Madison, defined “liberty” as something that “begins where arbitrariness ends”; where “man does not do violence to man.” In order “to have this liberty,” he explained, “the government must be such that one citizen is not afraid of another citizen.” Tyranny was not a problem confined to monarchs: It was a gravitational consequence of “the weakness, ignorance, and caprice of human nature.” Men “were not born wolves,” said Voltaire: “they have become wolves.” “Optimism” was the sin of the eighteenth century.
“Government, like dress, is the badge of lost innocence,” wrote Thomas Paine, in “Common Sense,” a pamphlet that electrified the colonies in 1776. “For were the impulses of conscience clear, uniform, and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest.” Such was “the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. freedom and security.”
The British press dubbed Paine “Mad Tom,” a firebrand of liberty. But “Common Sense” is a strangely conservative document, arraigning the mother country for failing to protect its people in such atrocities as the Boston Massacre. For “security being the true design and end of government,” he protested, “a government which cannot preserve the peace is no government at all.”
Such thinking underpinned everything the founders wrote about military and civilian power. Sovereignty was in the people, not the person.
The impetus behind the move from the Confederation’s “league of friendship” to the “more perfect Union” of the Constitution was civilian violence. Shays’ Rebellion, a revolt in western Massachusetts, took several months to quell, and it moved the needle further from Jeffersonian reveries on natural virtue to the stony realism that courses through the Constitution.
While Jefferson drew gleeful contrasts between the purity of America and the depravity of the old world, John Adams was arguing more persuasively that Americans are made “of the same clay” as other peoples, and that a government must expect the worst.
Alexander Hamilton, a man who knew ambition from the inside, was as eloquent as Madison on the scarcity of angels. His model was David Hume, a philosopher who made a career bringing dreamers down to earth. Humans were the creatures that thought one thing, said another and did a third. They were “ambitious, vindictive, and rapacious.” To expect otherwise was “to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.” To model a constitution on expectations of virtue was “to calculate on the weaker springs of the human character.”
On this, the antifederalists agreed. “Virtue will slumber,” growled Patrick Henry. “[P]olitical salvation” lay in a frank recognition that “self-love, perpetuated from age to age in every human breast,” is the motor of history. Grim as this sounded, it was better than anarchy.
Americans prided themselves on a revolution that avoided the bloodletting of the Jacobins in France. “We contend for a well-regulated democracy,” declared John Marshall, in which no “man shall be deprived of his life without the benefit of law.”
They were in no hurry to abolish prohibitions against armed travel, or the ancient “duty of retreat” from personal violence.
A person carrying a weapon could be guilty of “an affray” even “where there is no actual violence.” The law, John Sullivan reminded a court in 1806, charges even a man under attack with “a real tenderness of shedding his brother’s blood.”
In the case Sullivan was prosecuting, against a prominent Federalist who shot a Harvard student in Boston, no mention was made of a constitutional right to carry a gun. There was no such thing.
The right to bear arms was confined to service in the militia. The Second Amendment held no terrors for gun control. In the early 19th century, the flow of legislation was against the habit of traveling with pistols and bowie knives. Only Kentucky, in the Bliss case of 1822, struck down such a law as inconsistent with “the explicit language of the Constitution.” The decision prompted outrage in the state’s House of Representatives, a number of whom protested that the Second Amendment was designed to prevent Congress from disarming state militias, and “applied only to the distinctive arms of the soldier.”
The state constitutions defined the right to bear arms in terms of common defense and the republican ideal of keeping questions of security in the hands of the people. Some of them were explicit in demanding military service as part of the social contract. New York’s constitution specified “the duty of every man who enjoys the protection of society to be prepared and willing to defend it.” Anyone “averse to the bearing of arms” through “scruples of conscience” had to pay an equivalent sum of money “in lieu of their personal service.”
New Hampshire paraphrased Locke: “Every member of the community has a right to be protected by it in the enjoyment of his life, liberty and property; he is therefore bound to contribute his share in the expence of such protection, and to yield his personal service when necessary, or an equivalent.”
The militia was to defense what trial by jury was to justice: safety in numbers. The courts were generally dismissive of anyone who invoked the Constitution in support of personal aggressions.
Upholding the conviction of a man who had threatened neighbors with a shotgun in 1843, the North Carolina Supreme Court explained the difference. If, argued the judge, a man “employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves the severer condemnation for the abuse of the high privilege with which he has been invested.”
“A gun,” he added, “is an ‘unusual weapon,’ wherewith to be armed and clad. No man amongst us carries it about with him, as one of his everyday accoutrements — as part of his dress — and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State, as an appendage of manly equipment.”
It was not until the sectional crisis of the 1850s, when pro- and anti-slavery forces battled for the future of the nation, that the Second Amendment was weaponized as an individual right. When the enemy was a slave catcher, combing Boston in search of lost “property,” it was easy to think of the gun as an instrument of liberty.
The founders had a more robust account of human nature. They were as skeptical of saints as sinners, knowing that most people contain a little of both. Murder, wrote the physician, philosopher and signer of the Declaration of Independence, Benjamin Rush, “is most frequently the effect of a sudden gust of passion, and has sometimes been the only stain of a well-spent, or inoffensive life.”