By Adam Sanders.

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In America, guns and gun control pose unique dilemmas even compared to the country’s other long-unsolved problems. Anyone who pays even passing attention to the news cycle knows that for years or even decades, there is an excruciatingly familiar pattern in this country. A shooting happens, action is demanded, people say, “now is not the time,” and…nothing. Every repeat of this cycle raises important questions. These include questions over why passing gun control legislation is so difficult, what the best legislation would be, and how would such legislation reconcile[CB1] with the Second Amendment? These questions should be examined in a broader historical framework, and in the context of American gun control’s legal and constitutional evolution.

The roots of popular ownership of firearms in America dates back to the Colonial and Antebellum periods. Without a doubt this was a very different country with regards to domestic security and state power in this time period. Colonial militias were little more than bands of farmers tasked with preventing native raids into the colonies, only rarely backed up by professional British forces. Most of the militiamen were equipped with firearms they themselves personally owned. State power was even more brittle on the frontier, where it was almost non-existent. Every family had to own a gun for the sake of protecting their lives and property from bandits and/or Native groups. By comparison, an ill-equipped and poorly trained colonial militia would have been a luxury. Until the Civil War, the situation was not much improved in the frontier areas. It was not until extension of the national railroad network into the western United States that federal state power could truly supplant ad-hoc militias and armed settler families. Thus begins the dilemma of how to regulate large-scale private firearm ownership now that its original logic had lapsed.

Contrary to what many Americans may believe, there were significant pieces of gun control legislation enacted into law in the 1920–1975 period. The first of these was passed in 1934, the National Firearms Act. This law was one of the main efforts, along with the repeal of the national alcohol ban, to curb gang violence during Prohibition.[1] There were a number of legislative innovations contained within the NFA. Among these were the specific delineation of firearms into distinct categories. These categories included short-barreled rifles, suppressors, and machine guns, just to name a few.[2] Additionally, the NFA was the first major piece of federal legislation that required firearms to be taxed and registered. There were court challenges to this law, to be sure. However, the statute ultimately held fast, due to the judiciary citing Congress’s explicit powers of interstate commerce to regulation firearms, provided none were outright banned.

The next major gun control bill came to fruition in the form of the Gun Control Act of 1968. This piece of legislation was spurred on by the numerous high-profile assassinations which occurred[CB2] in the 1960s such as President [CB3] Kennedy and his brother, [CB4] Robert Kennedy and Martin Luther King, Jr. The additional stipulations unique to the 1968 law included barring firearm sales to the mentally defective or criminally convicted and banning most mail-order guns (citing, again, Congress’s power to regulate interstate commerce).[3] This may seem like an obvious law, and it may seem odd that this piece of legislation seemed to solve a problem we very much still have today (i.e., unstable people acquiring firearms). This gap between what seems settled and is not can best be explained via events in the post-Cold War Era.

Beginning in the 1990s, the Militia Movement began to rapidly gain in strength across the country, particularly in reaction to the controversies surrounding the Ruby Ridge and Waco sieges.[4] This quasi-grassroots ideological shift in hostility towards agencies like the FBI and ATF developed concurrently with an evolution of the NRA. Specifically, the NRA (which began as a mundane sportsman’s club in the 1870s) developed its now legendary talent for lobbying and advocacy. This shift in focus and tone began in the late 1970s but became particularly accelerated during the 1990s. To give an idea of how different the NRA’s policies and attitudes are now compared with its earlier history[CB5] , the NRA actually supported both the 1934 and 1968 federal gun laws.[5] The 20th-century history of the NRA is far too complicated for this blog piece to do it justice, but to simplify a bit, the NRA began to suffer from competition for membership with more hard-line advocacy groups and needed to maintain relevance among gun owners and advocates. The increasing overlap between the Militia Movement and the NRA beginning in the 1990s are the final culmination of the historical processes that partially lead to our present political paralysis.

However, the increasing flirtation between the Militia movement and the NRA is only half of the story. In aid of the historical framework of the debate, the political and constitutional framework must also be examined. Surprisingly, there were actually a number of state statutes passed in the Antebellum involving gun control. The states were able to get around the 2nd Amendment because until the enactment of the 14th Amendment, the Bill of Rights did not apply to state governments. The 14th Amendment is a major factor in the inability to pass meaningful gun control legislation in the United States over the last three decades.

Typically, when there is inaction on the federal level involving issues of which the public is in favor, a very Common Law-based process breaks the deadlock. One state will act. Then another. And another. Eventually, a majority of state governments will have enacted whatever position is increasingly in line with public opinion. Eventually a tipping point is reached, and the federal government acts. This was the process by which women gained suffrage and gay marriage was legalized in the United States, and we are seeing the same process play out with marijuana legalization as of the time of this blog. The reason for the gun control legislation being the major exception to this bottom-up process of social and legal change is the aforementioned constitutional interplay between the Seconds and Fourteenth Amendments. States have most certainly tried to initiate the bottom-up process.

However, the state statutes in question have mostly been struck down in court due to violating the Second Amendment. These state-level failures have been further exacerbated by an increasingly conservative Supreme Court. Furthermore, there is a constitutional double standard that can be exploited by pro-NRA statehouses. Constitutionally, states can easily repeal gun legislation and regulations without fear of Second Amendment issues. As a result, pro-NRA states will slash regulations in order to increase the number of changes gun-control legislation would make. This makes gun-control legislation seem more radical than it is because it alters the starting point. In short, what the stillborn efforts demonstrate is that gun control can only be accomplished via federal legislation or a constitutional amendment to better clarify the Second Amendment.

In conclusion, the development of the gun control paralysis has roots both very old and quite recent. American identity as a frontier society is enmeshed quite tightly with gun ownership. Federal state power only gained a de-facto presence in the western states just over a century ago. The Militia movement has become increasingly violent and paranoid. The NRA made a cynical power play to stay relevant in the face of competition. States cannot act on their own without being blocked by the judiciary. The only way forward with all of these issues in mind is, if it is possible, to be louder and angrier than the NRA.

[1] Greg S. Weaver. “Firearm Deaths, Gun Availability, and Legal Regulatory Changes: Suggestions from the Data.” Journal of Criminal Law and Criminology 92, №3 (2002): 823.

[2] National Firearms Act (NFA) June 26, 1934, ch. 757, 48 Stat. 1236 (Pub. Law 73–474).

[3] An Act to Amend Title 18, United States Code, to Better Control for the Interstate Traffic in Firearms, Pub. Law 90–618, October 16, 1968, 82 Stat. 1213.

[4] Gustav Niebuhr. “Terror in Oklahoma: Religion; Assault on Waco Sect Fuels Extremists’ Rage.” New York Times (April 26th, 1995). https://www.nytimes.com/1995/04/26/us/terror-in-oklahoma-religion-assault-on-waco-sect-fuels-extremists-rage.html.

[5] Jill Lepore. “Battleground America: One Nation, Under the Gun.” New Yorker (April 23, 2012). https://www.newyorker.com/magazine/2012/04/23/battleground-america.

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