While weapons were expressly prohibited at the rally on the Ellipse, where President Trump called on the crowd to march on the Capitol, law enforcement officers nonetheless recovered several guns at the scene of the tumult, as well as improvised explosive devices. Some people clearly came armed; others left their weapons at home and instead telegraphed their Second Amendment loyalties by brandishing flags with favorite pro-gun slogans. One rioter carried a large banner with an image of Donald Trump as a Rambo-like figure, boasting not only an impressive physique but guns drawn and ready to fight real and imagined enemies (in this case, the members of Congress and a vice president who were rubber-stamping the “stolen” election). Trump slunk off, leaving his followers to fend for themselves as he watched the events unfold on television.
The Jan. 6 insurrection aside, guns are allowed at protests in most states. The Founders enshrined a single Second Amendment right in the text of the Constitution, but modern gun-rights advocates, conflating history and mythology, have invented a cluster of rights around it. They have successfully pushed the notion that the right to bear arms and the right to peaceably assemble, added together, equal some sort of supersized right to armed assembly. For them, the idea that exercising their Second Amendment rights could infringe on any other cherished liberties is unthinkable. How could exercising two constitutional rights together possibly make a constitutional wrong?
It could. That’s because the founding generation viewed a right of armed assembly as the legal definition of a riot. Modern Americans obsess about the right to bear arms, but in that earlier generation, there was at least as much concern about the now-forgotten right not to bear arms, a form of freedom viewed as equally worthy of preserving. Above all, the authors of the Second Amendment believed that the preservation of the peace and freedom from armed intimidation was essential to civil society and the key to protecting well-regulated liberty.
Most of the first state constitutions did not have a provision protecting the right to bear arms. In those few instances in which such a right was singled out for express protection, it was considered as important to preserve a right not to bear arms. The Pennsylvania Declaration of Rights (1776), the first state Constitution to protect a right to bear arms, also affirmed that no person “who is conscientiously scrupulous of bearing arms” could “be justly compelled thereto, if he will pay such equivalent.” Government could compel citizens to bear arms unless they had religious objections. No other right in the first state constitutions was so completely bound up with a specific legal obligation and duty. Indeed, the Pennsylvania provision made clear that even if a man had religious scruples about bearing arms, he still had to contribute something to public defense. Modern rights typically impose obligations on others, including government; they do not typically impose obligations on those who claim the rights. The libertarian vision of gun rights, a right that not only trumps all others but imposes no obligations on its holders, would have been inconceivable to the authors’ of the Second Amendment.
Understanding why those first constitution writers thought the right not to bear arms was as important as the right to bear them is critical to understanding the culture that created the Second Amendment. It is not simply that rights talk in the era of the Second Amendment was different from the way we talk about rights today, but American law in the age of the Second Amendment was steeped in English common law and its idea that the law aimed to preserve the peace above all else. Until recently, scholars writing about the right to bear arms have not made this a central part of their story. The failure to think about the past as a different place, a failing that characterizes nearly all so-called “originalist” scholarship and jurisprudence, is one reason Supreme Court Justice Antonin Scalia reached such historically implausible conclusions in his landmark but widely criticized opinion in District of Columbia v. Heller in 2008. (The most trenchant criticism of the decision has come from judicial conservatives and historians.)
Justice Scalia boldly opined that the inclusion of the right to keep and bear arms in the Bill of Rights meant that legislatures were prohibited from weighing public safety against the liberty interests of gun owners when enacting laws. Scalia provided no evidence in the opinion for this claim and contradicted himself when he also acknowledged that the right to bear arms was not unlimited, a legal inconsistency that has left lower courts struggling to work out a coherent framework for evaluating modern gun laws. Some scholars and jurists have even argued that only laws envisioned by the Founders, or derivative of them, are now constitutionally permissible, a dubious claim that mirrors a view dismissed by Scalia himself that only weapons envisioned by the Founders — muskets and the like — now enjoy Second Amendment protection. As was true for so much of Heller, Scalia was not describing founding era beliefs but projecting backward, imposing modern libertarian ideas that were alien to founding-era Whig ideas of liberty. As one writer at the time observed: “The most desirable liberty, and which we should be ready to defend, is that of a well governed society, which is as essentially different from the licentiousness, which is without law or government, as it is from an absolute subjection to the arbitrary will of another.”
Under common law, the right to self-defense and the right to travel armed were always balanced against the “King’s peace” — or the people’s peace, after the American Revolution. The premium placed on the value of the peace was so great that one had a legal duty to retreat in most instances if confronted by an attacker in public. Traveling armed in populous areas was a crime under common law and remained so in many parts of the American republic. The founding generation would have seen most of the agenda of the modern gun-rights movement not as a vindication of well-regulated liberty but as the worst expressions of licentiousness, the degenerate form of liberty that had threatened republican governments, ancient and modern.
Today’s vision of gun anarchy shares little with the vision of James Madison and the members of the First Congress who actually wrote the Second Amendment. The insurgents who continue to march armed in American streets — with their imagined right to armed assembly — are properly seen as the heirs to Daniel Shays, the leader of the armed uprising in western Massachusetts that frightened the framers of the Constitution and led Americans to abandon the failed Articles of Confederation.
History has been one of the greatest casualties in the modern gun-rights movement’s relentless efforts to push its guns-everywhere agenda. The hugely successful effort to fashion a gun-rights libertarian utopia out of the historical materials of the American founding era has taken a good deal of effort, money and coordination. Gun rights are the crowning achievement of a kind of vast originalist industrial complex, linking institutions such as the conservative Federalist Society with think tanks such as Cato Institute and the foot soldiers of the MAGA movement.
And now, pro-Trump gun-rights advocates threaten to disrupt this inauguration week with “a Million Militia March” on Washington, prompting unprecedented security measures to avoid a repeat, or worse, of the violence and chaos of the Jan. 6 riot. It’s a grotesque parody of the Million Mom March, which 20 years ago drew an estimated 750,000 people dedicated to ending gun violence in America and echoing the founding generation’s concern for the right not to bear arms — and the right to enjoy the peace.
Those earlier Americans were keenly aware of the difference between an armed mob and a well-regulated militia. Modern gun-rights advocates are fond of quoting snippets of founding era texts out of context, sporting tri-corner hats and asserting a Second Amendment right so expansive that it threatens to swallow nearly all the rest of the Bill of Rights. Yet to anyone with a real understanding of the history of the American Constitution, their actions are a repudiation of the Founders’ vision of ordered liberty, not its fulfillment.