What if Guns and Bullets Had Not Been Invented Before the Constitution Was Written?

Filmmaker Michael Moore was on Chris Hayes’ MSNBC show on Tuesday, May 24, 2022. It was the day of another senseless mass shooting in the United States. The targets this time were once again school children. Twenty-one people in all killed in the town of Uvalde, Texas.

Moore is clearly for strong gun control legislation, but he didn’t say what so many proponents of gun control frequently say, “I believe in the Second Amendment.”

Instead, Moore pointed out how the Second Amendment has essentially given pro-gun people free license in opposing meaningful gun control. Then Moore raised a fascinating hypothetical question. “What if bullets had not been invented until fifty years after the U.S. constitution was written?”

His point was that gun rights are completely different from any other rights in the constitution. All of the other rights would have been relevant in the times of Greece, or Rome, or really any time. These non-gun rights could easily have stood alone without the Second Amendment.  This doesn’t mean that people could not have had guns once they and bullets were invented. The difference is that there would not have been a constitutional guarantee to be able to purchase and possess guns.

There are many who say that even with the Second Amendment, there is no such guarantee. The wording is thoroughly ambiguous:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It may seem at first that this amendment guarantees people the right to bear arms, but the context is having a well regulated militia. So does the right to bear arms only apply for those who are in a militia (armed forces) or the United States, or can they own guns regardless of whether or not they are in the U.S. military?

This argument is one which America’s gun owners have won. Much as those who favor gun control want immediate new regulations, it appears that it will be years before Congress passes meaningful legislation or the Supreme Court chooses to value public safety above gun rights.

There are numerous reasons why the gun advocates are currently winning this dispute:

  1. They own most of the guns, and that frightens many who want to limit gun rights.
  2. The roots of the Second Amendment have a great deal to do with slave owners’ rights and needs to hunt down runaway slaves. Creating the constitution required considerable compromise to get southern states to agree to the document. Protecting their control over slaves who were already in the United States was essential to southern states’ acceptance of the constitution. In contemporary American society, many White Americans feel that they need to have guns to protect themselves against Black Americans.
  3. Unlike most other democratic countries, the United States has this peculiar institution called states rights. In many cases, the rights of states supersede those of the federal government. For example, the state of Georgia can make a law stating that it is illegal to bring a glass of water to someone standing in line to vote, and currently there is nothing that the federal government can do about it. In the absence of strong federal gun controls, the states pass more “gun rights.”
  4. The U.S. Senate favors small and southern states, and those are the states in which gun rights are most deeply cherished. This makes it very difficult to pass meaningful gun control legislation. It might be possible without a filibuster, but that arcane rule is cherished by senators from small states, rural states and southern states.

The United States did not come close to writing a constitution in a time before guns and bullets were invented. The first guns were invented in China in the 10th Century. Michael Moore was not trying to point out that we almost avoided having the Second Amendment in our Constitution. What he meant is that it is significantly different than any other part of the constitution, and had guns not existed, we would have found a way to agree on the constitution.

It’s one of those “What ifs ….” that keep us thinking. It’s interesting talk, but regrettably, only academic now. Barring some sort of unforeseen circumstances, we’re going to have to live with lightly regulated guns for some time which means that we’ll have more Uvaldes and other mass shootings. The “thoughts and prayers” come easily; meaningful gun control is stymied by the oddity of having the Second Amendment in our Constitution.