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Historical Empathy and the 2nd Amendment: About Guns

By Lou Agosta on October 3, 2017

Putting ourselves in the situation of people who lived years ago in a different historical place and time is a challenge to our empathy. It requires historical empathy. How do we get “our heads around” a world that was fundamentally different than our own? For example …

Brown Bess, Single Shot Musket, standard with the British Army and American Colonies

When the framers of the US Constitution developed the Bill of Rights, the “arms” named in the Second Amendment’s “right to keep and bear arms” referred to a single shot musket using black powder and lead ball as a bullet. The intention of the authors was to use such weapons for hunting, self-defense, arming the nascent US Armed Forces, and so on. No problem there. All the purposes are valid and lawful.

Now take a step back. I believe we should read the US Constitution literally on this point about the right to “keep and bear” a single shot musket using black powder and lead ball. The whole point of the “strict constructionist” approach – the approach of the distinguished, now late Supreme Court Justice Antonin Scalia, who passed away on Feb 13, 2016 – is to understand what the original framers of the Constitution had in mind at the time the document was drawn up and be true to that intention in so far as one can put oneself in their place. While this can be constraining, it can also be liberating.

Consider: No one in 1787 – or even 1950 – could have imagined that the fire power of an entire regiment would be placed in the hands of single individual with a single long gun able to deliver 300 shots a minute with rapid reload ammo clips.

Unimaginable. Not even on the table.

This puts the “right” to “bear arms” in an entirely new context. You have got a right to a single shot musket, powder and ball. You have got a right to a single shot every two minutes, not ten rounds a second for minutes on end, or until the SWAT team arrives. Now the damage done by such a weapon as the Brown Bess should not be under-estimated. Yet the ability to cause mass casualties is strictly limited by the relatively slow process of reloading.

The Founding Fathers were in favor of self-defense, not in favor of causing mass casualties to make a point in the media. I think you can see where this is going. The stand-up comic in me comes up with the “great truth” – issue everyone a brown bess, powder and ball. Okay, bang away guys.

When the smoke clears, there is indeed damage, but it is orders of magnitude less than a single military style assault weapon.When the smoke clears, all-too-often weapons are found to be in the hands of people who should not be allowed to touch them – the mentally unstable, those entangled in the criminal justice system, and those lacking in the training needed to use them safely.

More to the point, this argument needs to be better known in state legislatures, Congress, and the Supreme Court. All of a sudden the strict constructionists are sounding more “loose” and the “loose” constructionist, more strict. It would be a conversation worth having.

The larger question is what is the relationship between arbitrary advances in technology and the US Constitution. The short answer? Technology is supposed to be value neutral – one can use a hammer to build a house and take shelter from the elements or to bludgeon your innocent neighbor. However, technology also famously has unanticipated consequences. In the 1950s, nuclear power seemed like a good idea – “free” energy from splitting the atom. But then what to do with the radioactive waste whose half life makes the landscape uninhabitable by humans for 10,000 years? Hmmm – hadn’t thought about that. What to do about human error – Three Mile Island? And what to do about human stupidity – Chernobyl? What to do about unanticipated consequences? Mass casualty weapons in the hands of people intent on doing harm? But wait: guns do not kill people; people with guns kill people. Okay, fine.

Because the consequences of human actions – including technological innovation – often escape from us, it is necessary to consider processes for managing the technology, providing oversight – in short, regulation. Gun regulation. Do it now. That said, I was not entirely serious about distributing a musket and powder and ball to every qualified citizen in place of (semi) automatic weapons – this is an argument called a “reduction to absurdity”; but I’ll bet the Founding Fathers would see merit in the approach. There’s a lot more to be said about this – and about historical empathy – but in the meantime, I see a varmint coming round the bend – pass me my brown bess!