Gun Control and the True Historic Purpose of the Second Amendment

Loaded: A Disarming History of the Second Amendment

by Roxanne Dunbar Ortiz

City Lights (2018)

Book Review

According to Dunbar-Ortiz, the main function of the Second Amendment, is to enshrine the voluntary militias used by white settlers to dispossess Native Americans of their land and compulsory slave patrols to hunt down and capture runaway slaves.

She disagrees with gun control advocates on many fronts:

First she disagrees that the Second Amendment right to “keep and bear arms” relates only to their use in a “well-regulated militia.” She maintains that it clearly refers to an individual right, like the other guarantees in the Bill of Rights. The Second Amendment is modeled on various state constitutions (which were already in effect) that guarantee gun possession as an individual right. Moreover the right to form state militias is already covered in Article 1 of the Constitution.

Second citing other countries like Switzerland and Canada (which rarely experience gun violence) with few or no gun control laws, she disagrees that more gun control laws will reduce gun violence in the US.

Third she disputes Democratic Party claims that blames opposition to gun control on NRA lobbying. Noting that American gun culture precedes the NRA by more than a century, she argues the organization spends far less on lobbying than Big Oil or Big Pharma.

Dunbar-Ortiz contends that US gun culture is deeply rooted in the racist, white nationalist, God-ordained nature of the virulent capitalism sanctified by the US Constitution. She reminds us of the real issue that triggered the Revolutionary War: namely the British ban on illegal settlement on unceded Indian land west of the Appalachians. George Washington and our other founding fathers derived most of their wealth from illegal surveying and speculation in Native land.

Thus when the US finally won independence in 1791, a massive escalation of “savage war” was unleashed against the indigenous nations that had civilized North America. “Savage war,” aka “irregular warfare,” refers to deliberate violence directed against women, children and the elderly, along with the infrastructure that supports their survival. Although the US government gives lip service to the Geneva Convention, which prohibits acts of war against civilians, their wars have always mercilessly targeted civilians. Prime examples are the 1846 Mexican-American War, the war against Cuba (1898-1900) and the Philippines (1898-1948) and numerous undeclared wars of the 20th century (the Korean War, Vietnam War, Central American War (1981-89), Afghan War, Iraq War, Libya War, Syria War, etc)

The most surprising part of the book is the introduction, in which Dunbar-Ortiz describes becoming a gun owner and joining the NRA when an activist group she belonged to was spied on and stalked by police and intelligence operatives.

A Voice of Sanity in the Gun Control Debate

In the following film, historian and Native activist Roxanne Dunbar-Ortiz discusses her book Loaded: A Disarming History of the Second Amendment. The major premise of her most recent book is that the Second Amendment relates mainly to the right and obligation of white settlers to keep guns, which they used in voluntary militias to massacre Native Americans and (in many cases) compulsory slave patrols to hunt down runaway slaves.

She begins by reminding us of the real issue (not the one we we’re taught in school) that triggered the Revolutionary War – namely the British ban on white settlement on unceded Indian lands west of the Appalachians. The hated Stamp Act, which triggered the familiar cry of “taxation without representation,” was enacted to finance British troops to roust settlers who were illegally squatting on Native lands.

She also points out that George Washington and most of the other founding fathers acquired their substantial wealth by illegally surveying and speculating in unceded Native land.

She disagrees with gun control advocates that the Second Amendment right to “keep and bear arms” only relates to their use in “well-regulated militias.” She insists that it refers to an individual right, like all the other amendments in the Bill of Rights. She argues the right to participate in voluntary militias is already covered in Article 1 of the Constitution. Moreover the Second Amendment was specially modeled on an individual right to gun ownership in various state constitutions.

I found the Q&A’s at the end the most interesting part of her talk. Dunbar-Ortiz doesn’t believe gun control laws would end mass shootings in the US – mainly because American gun violence is directly rooted in the historically racist and genocidal nature of US gun culture. She contrasts the US with Switzerland and Canada. Despite the absence of any gun control laws (the Swiss are required to keep weapons in their homes), there is no gun violence in Switzerland. Likewise Canada has much less gun violence despite fewer gun control laws.

In both cases, she attributes the absence of gun violence to the historical absence of slavery or rampant militarism.

Dunbar-Ortiz also disputes Democratic claims that opposition to gun control stems from NRA lobbying. Noting that the US gun culture precedes the NRA by more than a century, she adds that the NRA spends far less on lobbying than Big Oil and Big Pharma. The NRA mainly derives its strength by mobilizing thousands of volunteers at the state level, where most gun control laws originate. These volunteers track the voting records of every state and local politician to ensure that anti-gun legislators don’t get re-elected.

Has the Tough on Crime Era Ended?

Solutions: American Leaders Speak Out on Criminal Justice

Edited by Inimai Chettiar and Michael Waldman

Book Review

Michelle Alexander’s 2010 book The New Jim Crow has helped spark a national debate on the mass incarceration of Africans. Solutions, a collection of essays, is intended as a response. As many are written by presidential hopefuls, the range of solutions is cautious. None of the authors support the most obvious (and popular) criminal justice reform, namely legalizing or decriminalizing marijuana use.*

Likewise there are no essays by anti-Wall Street senators Elizabeth Warren and Bernie Sanders. Both were viewed as prospective presidential candidates when Solutions was being readied for publication.

That being said, I was intrigued to see so many Republican politicians, both of the neoconservative Christian and the libertarian stripe, abandon their tough-on-crime rhetoric to argue for reducing prison populations. The forward, by Bill Clinton, argues that despite extreme political polarization on other issues, ending the incarceration of Americans for minor and victimless crimes is one area ripe for genuine bipartisan cooperation.

In his essay, Marc Levin, Director of the Center for Effective Justice at the Texas Public Policy Foundation, suggests that conservatives, applying their core principles of personal responsibility, accountability and limited government, have become “the most vocal champions of prison reform.” In this regard, he and other key conservatives have clearly parted company with the Koch brothers and the American Legislative Exchange Council (ALEC), which continues to lobby for tough-on-crime legislation and increasing prison privatization.

Levin and editor Inimai Chettiar hold up Texas, Georgia, South Carolina and Pennsylvania as model states, due to their shift from prison building to community based alternatives. As Levin readily admits, Texas reforms were driven by a need to control ballooning prison costs in an era of severe budgetary shortfalls. He brags how Texas has saved taxpayers billions of dollars by eliminating mandatory minimum sentences (allowing judges more discretion in sentencing), by offering drug and mental health treatment as an alternative to incarceration, by increasing formal rehabilitation and through various measures aimed at increasing the employability of ex-offenders (including a provision for law abiding ex-offenders to seal their criminal record).

A few of the essays read like stump speeches, full of vague ideological platitudes without meaningful detail on how prison reform can be accomplished. Others are surprisingly detailed.

Here are some examples:

Vice-President Joe Biden (D): reads like a stump speech and quotes extensively from Martin Luther King. He calls for restoring police staffing cuts and more genuine community policing. Doesn’t explain where the funding will come from, given the massive debt this administration has racked up for bank bailouts and the wars in the Middle East.

Hillary Clinton (D): reads like a stump speech, with frequent references to what Robert Kennedy would do and “my friend” Nelson Mandela. Calls for respect for the law, ending inequality, reforming mandatory minimum sentencing, ending racial profiling by the police, increasing use of drug diversion (ie mandatory treatment as an alternative to incarceration), restoring police staffing cuts, increasing community policing and restoring voting rights to ex-offenders. She also makes no mention of how all this would be funded.

Ted Cruz (US Senator Texas – R): calls for more jury trials and an end to mandatory minimum sentencing. Proposes a federal law requiring prosecutors to disclose all exculpatory** evidence before an accused can enter into a plea bargain. Also supports the Military Justice Improvement Law. This would increase military convictions for rape by transferring responsibility for prosecution from unit commanders to independent federal prosecutors.

Mike Huckabee (former Arkansas governor – R): would eliminate waste by treating drug addicts, rather than incarcerating them. He would also work to build character in American young people by strengthening families.

David Keene (former president of the National Rifle Association (NRA) and the American Conservative Union: would reduce the number of crimes punishable by prison, end three strikes laws (which require mandatory life imprisonment for a third felony), amend grounds for probation revocation so they’re only used to protect communities from violent criminals and end arbitrary police violence against African Americans for nonviolent crimes.

Martin O’Malley (former Maryland governor – D): would abolish the death penalty because it’s expensive, ineffective, wasteful and unjustly applied (poor minorities are far more likely to receive the death penalty because they can’t afford adequate legal representation). He states that only six other (mainly authoritarian) countries have the death penalty: Iran, Iraq, China, North Korea, Saudi Arabia and Yemen. (For some reason he omits Egypt.)

Rand Paul (US Senator Kentucky – R): would end mandatory minimum sentencing, police militarization, disproportionate sentencing of minorities for drug crimes and civil asset forfeiture laws.** He would also allow juvenile/nonviolent offenders to have their criminal records sealed.

Rick Parry (former Texas governor – R): calls for increasing use of drug courts, expanded rehabilitation and mandatory drug and mental health treatment in lieu of incarceration.

Marco Rubio (US Senator Florida – R): would require federal government and regulatory agencies to publish all federal laws and regulations in one place, would end civil forfeiture laws and would rein in “out of control” regulatory agencies. (Me, too. I think they should start putting corporate white collar criminals in jail, but I doubt this is what he means).

Scott Walker (Wisconsin governor – R): advocates for more workplace drug testing and more programs to reduce heroin addiction.

James Webb (former US Senator Virginia – D): would appoint a federal commission on mass incarceration to study the problem some more (you can’t make this stuff up).

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*At present marijuana has been legalized for recreational purposes in four states (Washington, Oregon, Alaska and Colorado) and for medical purposes in 11 other states. Marijuana possession has been decriminalized or reduced to a misdemeanor in many other states. Cannabis possession for any purpose remains a felony in only six states (Wisconsin, Texas, South Carolina, Oklahoma, Louisiana and Alabama).
*Exculpatory evidence is evidence that tends to exonerate a defendant of guilt.
**Civil asset forfeiture is a legal tool that allows law enforcement officials to seize, (without due process) property they assert has been involved in certain criminal activity. The burden remains on the defendant to initiate separate legal action to recover their property, even if they’re acquitted or charges are dropped.

Solutions is published under a Creative Commons license and can be downloaded free at Solutions