As part of our "Guns in South Dakota" project, we have a conversation about the Second Amendment of the U.S. Constitution.
Chuck Parkinson and Pam Carriveau join us to discuss the origins of 2A and its modern day interpretations.
Lori Walsh:
Chuck, I want to start with you. For the decades that you've spent in public service in government and policy making. Let's talk about the second amendment and some of its history. When we think about what the founders intended and let's start there.
Chuck Parkinson:
Lori it's interesting. One sentence has caused lots of conversation over the last 200 plus years. In the original days after independence was gained and the constitutional convention set up, there was a great fear that existed about the tyranny which they had led up to this particular point. Because in the past, what had happened was that monarchs in Europe had used their armies to force the populace to do certain things. And so, as things evolved when the constitutional convention came together, the federalists and the anti-federalists, where the federalist wanted a strong central authority and the anti-federalists were very strong about keeping the authority at the states. There isn't much actually written about the second amendment debate during the constitutional convention in 1787. In fact, James Madison kept really deliberate notes on the convention and he didn't write a single word about the individual's rights to a firearm.
The main focus was on a well-regulated militia. And the discussion that took place really was based a lot upon writings of Alexander Hamilton, who wrote in the federalist papers 29 and 49, that the right to bear arms really referred to military activities of a well-regulated militias. And the fear being that if the states had the militias, they would be able to act to protect those particular states. So early days, that was really the case of how things evolved at that particular point. In fact, I learned and looking into things that all 13 state militias had compulsory enrollment of all white males between 16 and 60 shortly after the enactment of the constitution. And they had to bring their own musket.
Lori Walsh:
So yeah, Pam jump in.
Pam Carriveau:
Well, I was just going to say that and related to that, why this emphasis on a well-regulated militia? Because the framers were worried about, they didn't want to have a standing army. They saw what happened with standing armies in England and the use of the standing army in the colonies. And that's really why they focus so much on the well-regulated militia.
Lori Walsh:
All right. So my question Chuck, is did everybody, when you say they had to bring their own muskets, is that an indication that pretty much everybody at this time had their own musket or had their own firearm in some ways for hunting and things like that already? What do we know about the prevalence of arms among these early founders?
Chuck Parkinson:
Especially as outside of the cities, pretty much everyone had a musket because they used it to live upon. It was for hunting purposes and that sort of thing from that perspective. And in fact, there was a very interesting case. As the court looked at things there wasn't for over 200 years, the well-regulated militia had existed. And one would say that it probably evolved into the national guard, which as Hamilton had argued early, that the president should be in charge of all militias, which was what the anti-federalists of course were against. But as we see the president is in charge. Each state has a national guard, but the president can indeed call the guard, activate the guard and that sort of thing. So as [inaudible 00:05:25] result, you had that. But the idea was that when these militias met, they needed to be trained. They just couldn't show up. And all of a sudden, because they had learned during the revolution that you needed some training to get to the point where you could actually be a force that could act in such a manner that you could be successful.
Lori Walsh:
Yeah. Pam, I want to talk a little bit about how the way that we look at it has changed over the years. Because this is a conversation and a question, and there have been court challenges. And tell me a little bit about the evolution of our understanding of the second amendment.
Pam Carriveau:
Well, it's very interesting. There really haven't been a lot of Supreme court cases dealing with this issue. I think if you go back to the original idea that people would own a gun for these state militias in order to protect against Native Americans or invading countries from Europe. There's also a fair amount of history that supports this idea that state militias were used to put down slave revolts and capture escaped slaves. And so our early Supreme court cases dealing with this, and by early, I mean, 1875 talk about the second amendment would not ban state regulation of firearms. And then US versus Miller, which is 1939, that's the case, that's kind of the case that establishes that there isn't an individual right to own guns, but instead it's a collective right. That is tied to militia service or serving in the military of some sort, kind of a well-regulated as Chuck pointed out, well-regulated organized, trained group of people designed to provide defense for the state or for the nation.
Chuck Parkinson:
If I may jump in there to follow up on what Pam just talked about, about the Miller case, and it's upholding the 1934 National Firearms Act. One of the things that also came to mind is that according to the Brennan Center for Justice at the New York University law school from 1888, when law review articles were first index through 1959, every single one of about the second amendment concluded, it did not guarantee an individual's right to own a gun. That changed in 1959 when a law student at William and Mary wrote a piece in the NRAs American rifleman Magazine, and argued that the amendment enforced a right to a revolution, which the Southern states availed themselves during the war between the states.
Lori Walsh:
I'm wondering Chuck Parkinson, how the politics and the dialogue around this has changed too. Has it always been focused on some key aspects of individual Liberty and shall not be infringed? Or has it shifted as our relationship with guns has shifted, our technology has advanced, the economics of weapons has changed. What are you seeing in the political dialogue?
Chuck Parkinson:
I think that that is truly the case. It's evolved 180% degrees from where things were. The founders never envisioned what we would see today, as far as the weaponry that exists in the world. But I think one of the things to take in, and just for background information, the NRA, the National Rifle Association of course, is for years, has been associated with individual gun rights. But I think it's important to look at the history of the NRA. The NRA was organized in 1871 by former union officers to provoke marksmanship because they were fearful if another war happened. That people were not capable of using firearms. And so, as a result, they promoted marksmanship and gun safety and competitions. Rifle shooting became a big thing. And later it became actually an Olympic sport and still is to that particular degree at that time.
But anyway, the officers at that point, they distinguished a lot between owning rifles and handguns. And in fact, on several occasions between say 1925 and in the late 1950s, and even up to the 1970s had testified before Congress about actual gun control. And the whole idea at the NRA was to basically in fact, in 1931, when they started fearing the bootlegging of the gangs, the NRA actually testified before Congress for a ban on concealed weapons, prevent possession of criminals, and mentally ill, and children. And required that the dealers be license and require background checks before the firearm could be delivered to the particular individual. And so, as a result, what I think happened is one of the telling points was in 1976, there's what's known in the world, of the NRA world and people probably have forgotten about this, but it was called the revolt in Cincinnati.
And what had happened was the leadership of the NRA had proposed to step back from politics and actually move the headquarters from the east coast to Colorado, and to focus on sports hunting, and gun safety, and education from that standpoint. And at that particular convention, more than a thousand people showed up from two different organizations, basically the foundation and citizen committee for the right to keep and bare arms. And they basically rested the control away from the old time leadership that was supporting a cautionary approach to that. And that changed the day at that particular point. Then soon after that, the NRA created a political committee. And in 1980, they endorsed their first presidential candidate, which was Ronald Reagan. And then they began all their focus on individual gun rights ownership. Then it evolved from that point.
Lori Walsh:
Pam, when you look at the political conversation and dialogue around guns, not only in South Dakota, but nationwide, do you see room for, to moving the conversation forward? Or do you just see gridlock between really, things that fit on a bumper sticker and people can sort of divide into their own corners and take a stand on like, I guess I'm wondering when we have challenges with gun violence, how do we even talk about this? If we can't talk about it at all?
Pam Carriveau:
Well, I think there is room. And even the Supreme court would say that there's room. District of Columbia versus Heller in 2008 and then McDonald versus Chicago two years later, basically recognize that there is an individual right to possess arms. It's no longer associated with a militia right. But those cases both said that this is not an unlimited right. We can regulate unusual firearms. We can prohibit felons and people who are mentally ill from possessing them. We can prohibit possession in sensitive places like schools or government buildings. And essentially the essence of both of those decisions is that guns, it's an individual right. And people can have them in their homes for personal protection. But once we start talking about activity outside of the confines of the home, that can be regulated. And ultimately what we're seeing actually is an increase in people who are single issue pro gun control voters.
There are, of course, as Chuck pointed out with his discussion of the NRA, there are a lot of single issue pro gun rights voters. But we're seeing an increase in the number of people who are pro gun control and that's their top issue. And that's what they're going to vote when they vote for candidates. That's what they're looking for. And I think ultimately that's the key. We're going to need more political mobilization around pro gun control in order to change the debate, move the debate from this all or nothing conversation.