On Guns: Historical Empathy and Strict Constructionism of the US Constitution

By Lou Agosta on May 26, 2022

One thing is for sure and my historical empathy strongly indicates: Whatever the Founding Fathers intended with the Second Amendment, they did NOT intend: Sandy Hook. They did not intend Uvalde, Parkland, Columbine, Buffalo, NY, Tops Friendly. They did not intend some 119 school shootings since 2018. They did not intend a “a fair fight” between bad guys with automatic weapons and police with automatic weapons. They did not intend wiping out a 4th grade class using automatic weapon(s). They did not intend heart breaking murder of innocent people, including children, everyone as cute as a button.

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? It is time – past time – to expand our historical empathy. 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 dozens of shots a minute with rapid reload ammo clips. (I will not debate semi-automatic versus automatic – the mass killer in LasVegas had an easy modification to turn a semi-automatic into an automatic.)

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. The Founding Fathers did not intend the would-be killer being perversely self-expressed on social media to “out gun” school security staff who are equipped with a six shooter. 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. The intention of the Second Amendment is to be secure as one builds a farm in the western wilderness, not wipe out a 4th grade class. I think you can see where this is going.

Let us try a thought experiment. You know, how in Physics 101, you imagine taking a ride on a beam of light? I propose a thought experiment based on historical empathy: Issue every qualified citizen a brown bess musket, powder, and ball. What next?

Exactly what we are doing now! Okay, bang away guys. This is not funny – and yet, in a way, it is. A prospective SNL cold open? When the smoke clears, there is indeed damage, but it is orders of magnitude less than a single military style assault rifle 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 firearms 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.

There are many points to debate. For example, guns are a public health issue: getting shot is bad for a person’s health and well-being. Some citizens have a right to own guns; but all citizens have a right not to get shot. People who may hurt themselves or other people should be prevented from getting access to firearms. There are many public health – and mental health – implications, which will not be resolved here. There are a lot of gun murders in Chicago – including some using guns easily obtained in Texas and related geographies. The point is not to point fingers, though that may be inevitable. The guidance is: Do not ask what is wrong – rather ask what is missing, the availability of which would make a positive different. In this case, one important thing that is missing is historical empathy.

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. Regulation based on historical empathy. Gun regulation . Do it now.

I am sick at heart. This is hard stuff. All those kids. Teachers, too, dying trying to defend the children. Everyone cute as button. What to do about it? My proposal is to expand historical empathy. Really. Historical empathy is missing, and if we get some, expand it, something significant will shift.

That said, I am not 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!

PS Please send this post or a version of it to your Congressional representatives in the US House and Senate.