Supreme Court Conservatives Rewrite History

Photograph by Nathaniel St. Clair

On 19 February 2023, an Associated Press piece on a gun related Supreme Court ruling appeared in the Philadelphia Inquirer. The same report appeared in other papers and media outlets across the country. Here are the main points of the story:

+ “A landmark U.S. Supreme Court decision on the Second Amendment is upending gun laws across the country … sowing confusion over what firearm restrictions can remain on the books.”

+ The Supreme Court decision (known as the Bruen decision) established a new test for judges “evaluating challenges to firearm restrictions.” It set aside old standards such as “public interest” and “public safety” and replaced them with a requirement to “look back into history to show [if the challenge] is consistent with the country’s historical tradition of firearm regulation.” Or, as the majority opinion reads:
“The government must affirmatively prove that its firearms regulation is part of the historical tradition” to regulate gun use.

+ “The decision opened the door to a wave of legal challenges from gun-rights activists who saw an opportunity to undo laws on everything from age-limits to semi-automatic weapons.” For the gun activist side of the argument, “the Bruen decision was a welcome development.” On the other side, gun control/safety activists have decried the Supreme Court’s historical test.”

A Contrived History

As Saul Cornell, the Paul and Diane Guenther chair in American history at Fordham University and adjunct professor of law at Fordham Law School, observed soon after the decision came down, the court majority “invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies.” Cornell singled out Clarence Thomas who wrote the majority decision on the case. “The distortion of the historical record, misreading of evidence, and dismissal of facts that don’t fit the gun-rights narrative favored by Thomas are genuinely breathtaking in scope.”

In particular dispute was Thomas’ interpretation of the history of gun control laws in the last half of the 19th century. In essence, he claims it did not exist or was so sparse as to be historically insignificant. During the arguments offered by those supporting gun control, this historical assessment was vigorously challenged. However, Thomas ignored this evidence apparently because it did not support his pro-gun ideological position. Here, Clarence Thomas follows in the footsteps of history’s great falsifiers—those who attempt to restructure the past so as to support an ideologically ruinous present and future. Thomas wasn’t alone in this effort. Among others, Neil Gorsuch and Amy Coney Barrett joined him in the decision.

The Real History

So, what is the more accurate historical story of the country’s late 19th century approach to gun control? We can get a snapshot of this history in Matt Jancer’s “Gun Control Is as Old as the Old West” which appeared in the 15 February 2018 edition of the Smithsonian Magazine.

Most Americans have heard of the “shoot out at the OK Corral” (Tombstone, Arizona, 26 October 1886)—an iconic story of the Old West. Almost no one realizes that it was a deadly fight over the issue of gun control. There were two factions involved in this confrontation: constables and sheriffs on one side and cowboys on the other. The latter “thought it an infringement on their rights to give up shooting in town.” The former were pledged to enforce gun control—no carrying guns or knives—within town limits.

At the time, the Second Amendment was not an issue. It was assumed that regulation was compatible with the Founders’ intent. As one judge in1840 Alabama put it, the state had a right to regulate personal firearms, and permission to carry such firearms did not mean the right “to bear arms upon all occasions and in all places.” Indeed, from its beginning most of United States followed English Common law including a ban on traveling armed in populated areas as well as a concealed weapons ban. Passing the Second Amendment, which if read with common sense was tied to the maintenance of militias, was not considered in any way contracted by this approach.

Gun control continued as part of all the relative ordinances which existed in just about every Old West town were passed locally—an act of “exercising self-control and self-determination.” And they were all passed for the same basic reasons: first public safety and second the understanding that without public safety “civic leaders and influential merchants would not be able to convince people to move to the town, invest money there and raise families.” In other words, it was a choice between civilization and anarchy.

In 1886 Tombstone, civilization won (at least temporarily). “Marshal Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holiday” confronted representatives of the “cowboy faction,” Billy Clanton and McLaury brothers.  They had refused to give up their weapons while in town. When the confrontation took place, the three cowboys died. The Earps and Holiday walked away uninjured.

This scenario, with more or less violence, was played out not only in the 19th century Old West, but throughout most of the country. A graphic map accompanying the analysis of the Bruen decision by Saul Cornell, cited above, shows a large number of cities and towns from California to New Jersey enforcing gun control ordinances between 1865 and 1917.

In 1934 Congress passed the first federal gun law, The  National Firearms Act, which among other things restricted the sale and ownership of dangerous weapons such as machine guns, silencers and sawed off shot guns focusing on reducing gang violence. Then, in 1939 the Supreme Court’s  in United States v. Miller ruled that the right to bear arms applied to citizens in active, controlled state guard or militia units—an accurate “originalist” reading of the Constitution’ Second Amendment. Many other regulations and laws have been passed in US history.

Let’s now attempt to unpack the present consequences of the Bruen decision and its distortion of history. Who are today’s cowboys demanding the right to shoot up the towns and cities of the United States? And, who is it that stands against what history suggests is a roadblock to the level of public safety necessary, “to convince people to move to the town, invest money there and raise families.” That is, the maintenance of a stable and safe society.

If you downgrade public safety as a criterion for law and replace it with alleged rights that run contrary to common sense, then you yourself stand as a threat to societal stability and safety and, ipso facto, civilization. That now is the status of Justice Clarence Thomas who delivered the majority opinion, those who joined with him in the decision, and the cowboy lobby that sustains their cause. In essence they have all become modern day versions of Billy Clanton and McLaury brothers, trading away social well-being for the “right” to carry their guns around town.

Walter Bagehot (1826-1877), an English essayist, once observed that civilized societies have within them elements of human nature that prevailed in a barbarous past. He warned that these elements are not suited to civilized life and, if they again prevail, will wreck society. That is our situation. The foxes are inside the henhouse.

Lawrence Davidson is a retired professor of history at West Chester University in West Chester, PA.