Opinion: Joyce Lee Malcolm on the history of gun ownership in America

The right to be armed

The American right to be armed is a legacy of the article in the English Bill of Rights of 1689, which was passed to assure English subjects their rights would be protected when William and Mary ascended the throne. That document included the right of Protestants subjects to “have Armes for their defence Suitable to their condition and as allowed by Law.” While the English right was broadened by the 19th century to include all subjects regardless of their religion or class, it was not entrenched, and in the years after the First World War it was whittled away despite little gun crime. Now, carrying any item for self-defence is illegal in Britain on the theory that society will protect you. But of course, it can’t, and the trade-off is the belief that public safety demands that sacrifice.

The American right to be armed is entrenched in the American Constitution’s Bill of Rights of 1791. Its guarantee has also been whittled down, but not abolished. There were restrictions on ownership of firearms by black people in the south before and even after the Civil War, and restrictions in the north in the early 20th century, from fears of the immigrants pouring in from southern and eastern Europe. But Americans believed, as the Second Amendment stated, that it was the right of the people to be armed.

In the 1970s there was a vigorous debate over whether the Second Amendment protected an individual right to be armed or merely a collective right for members of a state militia to have firearms. The Supreme Court finally took up the issue in two landmark cases, District of Columbia v Heller in 2008 and McDonald v City of Chicago in 2010. Both Washington DC and Chicago had banned residents from having a handgun in their homes. The Supreme Court ruled that the amendment protected the right of individuals to keep and bear those arms in common use for self-defence and other lawful purposes, a right “fundamental to our scheme of ordered liberty and system of justice.” This understanding binds all the cities and states of the nation.

Nevertheless, there were, and remain, thousands of state and federal gun regulations. Before anyone can purchase a gun, they must pass an FBI instant background check. There are numerous laws and yet there is violence.

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While the federal government and some states have attempted to limit gun ownership, most states have regarded armed citizens as a help by protecting themselves and keeping the peace. Beginning in 1994 with three states, as additional state legislatures took up the issue of permitting all law-abiding citizens who owned guns to carry them, there were fears that more guns in public hands would result in more shootings. That did not happen. There are now 44 states that must permit law-abiding residents who have a gun and complete certain basic requirements to carry it concealed for their defence.

You can drive from Florida diagonally across the United States to Washington State without crossing any of the few states that demand you can only carry a gun if the police agree you have a special need that day. Living in a dangerous area won’t do. A case now before the Supreme Court deals with whether that test of a good reason to carry a gun is constitutional.

Violence and lawlessness

Why is the right to be armed such an emotional one for Americans? No police force can protect everyone, or even any one, all of the time. Furthermore, the past three years have seen a perfect storm of violence and lawlessness. First the Covid-19 pandemic resulted in the release of many convicted offenders so they would not catch the disease. Then protests against police over the death of George Floyd in Minneapolis in May 2020 morphed into rioting in cities across the country. Few rioters were apprehended. In 2021, some 73 police officers were intentionally killed – the highest number since the 9/11 terrorist attack of 2001. There were demands to defund the police. As a result, the numbers of police have declined, with many retiring and fewer recruits joining.

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Not surprisingly, violent crime rates in major cities soared. From 2019 to 2020, rates were up 29.4 per cent nationwide, the largest annual increase since the FBI began tracking in the 1960s. There were 44 per cent more murders in some 22 cities in 2020 than in 2019.

Gun purchases often increased in the past when new firearms restrictions were threatened. The ban on so-called “assault weapons” – a vague label applied to a wide range of common guns – and “red-flag laws” preventing someone highlighted as dangerous from owning a weapon, passed in many states and cities in 2019. This drove the highest volume of would-be purchasers in the background check’s 20-year history. The record number of gun applications was surpassed within the first five months of 2020 and again in the first six months of 2021, as Americans concluded they had to protect themselves and their families. In 2021, an estimated 18.5 million guns were sold – some 5 million to first-time gun buyers.

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Do more guns produce more crimes, or do guns in the hands of lawful citizens reduce crime? Numbers of gun owners have increased after the high point of homicides in 1991, but the US murder rate dropped over the decades by more than half. In 1991, for example, there were 9.8 murders per 100,000 population. In 2009, there were five murders per 100,000. That has been the trend until the past three years. In the estimated over one million instances of self-defence annually, a gun merely needs to be brandished to deter an attacker.

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The great 18th-century British jurist William Blackstone, in his classic work, Commentaries on the Laws of England, a best-seller on both sides of the Atlantic, put the issue succinctly: “The right of English subjects to have arms was for ‘self-preservation and defence when the sanctions of society and laws are found insufficient to restrain the violence of oppression’”. Blackstone added that Common law:
Considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.

Americans still hold to that understanding.

Professor Emerita Joyce Lee Malcolm is a historian and constitutional scholar who specialises in constitutional history, with a particular focus on the development of individual rights in Great Britain and America. She has written many books and articles on gun control, the Second Amendment, and individual rights. Professor Malcolm has been published in The Wall Street Journal, The Financial Times, USA Today, The Boston Globe and other newspapers