DC v. Heller: A non-lawyer's thoughts on "original intent"

I've had this post tickling the back of my brain for a week or so now, and I guess I'd better get it out there before the court comes down with their decision and renders my opinion moot.

Like it says in the title, I'm not a lawyer, so any arcane legal issues regarding "original intent" or "stare decesis" or "finders keepers, losers weepers" are outside the bounds of my work here. I'm just looking at the issue with my limited knowledge of history and firearms and trying to give a unique perspective on one thought that might have been in the minds of our Founders as they were writing the Constitution.

In case you've been vacationing on Mars, the "Heller v. DC" case concerns the limits that DC places on legal firearms ownership by their residents. Mr. Heller carries a firearm at work every day, but since he lives in the "District of Crack", he's forced to take that firearm and secure it in a safe when he comes home from work. I'm sure that going to the DC-approved gun safe and getting the firearm wouldn't be much of a hurdle to defending yourself against an intruder, just so long as that intruder was either one of the Muppets or possibly the ancient Senator Robert Byrd. The particulars of the case are here. It's wikipedia, but it is one step above having spurwing plover explain the whole issue using Saturday morning cartoon references, right?

Anyway, to get back to my point. Quite a bit of the Sturm und Drang over this issue has centered on the question: "What did the founders mean when they wrote the Second Amendment?" Supporters of gun rights say that the Second Amendment means just what it says: the right to bear arms shall not be infringed. Gun control supporters counter with statements like "Our founders could have never forseen a day when evil, military-style assault rifles and Saturday Night Specials could allow a wacko to mow down 30 or 40 people at a time." It's true that James Madison probably never saw thermobaric bombs and the M249 SAW coming up on the horizon; however, when they wrote the First Amendment, the founders probably also didn't foresee an American media empire run by an Australian (which just makes sense, since Australia was just a bunch of Aborigines shagging kangaroos and wallabys at the time of our Revolution), or 24/7/365 cable TV news networks with the capability of bringing you images from all around the world in seconds via satellite. Does that mean our First Amendment rights should be limited to hand-cranked printing presses and standing on a bucket in the town square railing on about the government?

I had a bit of a revelation the other day, and it occured to me that our Founding Fathers not only approved military arms in the hands of private citizens, but they actually allowed Joseph Schmoe, the village blacksmith, to have arms that were SUPERIOR in some ways to the military arms of the day.

Let's look at how wars were fought in the 18th Century. Large armies of conscripts were assembled, given smoothbore muskets with long, pointy bayonets, and marched into battle in massed formations. These battles were usually conducted at distances of less than 100 yards, where the inaccurate firepower of the smoothbore rifles (CORRECTION: "Smoothbore MUSKETS" is the correct term here. Are you happy now, Hollowpoint?) could be focused on the enemy in his similarly massed formation. Smoothbore muskets were barely accurate at 100 yards, but at closer distances like 50 yards, they could be very lethal. In the era before blood plasma, penecillin and air medevac units, the large lead balls fired by these weapons would tear through soldiers like a hot knife through butter. Muscle, bone, brain and clothing - all gave way to hot lead. I seem to remember hearing that soldiers of this era feared the bayonet more than they did the bullet, since most armies would only fire one or two volleys before strapping on the bayonets and wading into each other.

At the time of our Revolution, most of the weapons found in the hands of Americans were muskets. Some of them were actual British Army muskets (dubbed "the Brown Bess"), while others were French & Dutch imports. American gunsmiths did a brisk business producing copies of these firearms, but due to the limitations of Colonial manufacturing at the time, most of the lockworks and barrels were imported from Europe. Smoothbore muskets often did double duty as shotguns, since the smooth barrels would not impart spin on the charges of shot, causing them to spin out into a large pattern that was essentially useless at ranges over 30 yards or so. Many single & double barreled shotguns were loaded for deer & other large game by replacing the shot charge with a .72" round lead ball. This ball would have up to .06" of free play around the bullet, and the unpatched ball would rattle down the barrel like a deadly pinball on it's way towards the relatively close quarry.

Rifles, more commonly referred to as "Pennsylvania Rifles" were used by American frontiersmen to shoot more accurately and at longer ranges than muskets. Because a rifle used a tighter fitting lead bullet which used a cloth patch to provide an even tighter fit in the barrel, combined with spiral rifling cut into the barrel of the gun, it was ridiculously accurate at ranges where taking a musket shot at your enemy was more symbolic than meaningful. While muskets were rarely accurate beyond about 75 yards, rifles could hit head sized targets at ranges up to 200 or 300 yards regularly. There were instances when American riflemen dumped maximum loads into their rifles and picked off selected targets at ranges up to 500 yards, but most of their shooting was done at ranges inside 400 yards and outside of 100 yards. A rifle was hell on targets at distant ranges, but it was a poor weapon to use in the Napoleonic set piece battles that were popular at the time. Because rifles had no means to mount bayonets, troops armed with rifles had to get their licks in on musket-armed troops in the "sweet spot" where the enemy was far enough away to not be able to reply with their muskets but not so far away that the riflemen's shots were less likely to hit, and they retreat when the enemy approached within bayonet range. When you're firing a weapon that takes between 30 and 60 seconds to reload, you've got to make every shot count. Smoothbore muskets, in the hands of well drilled troops, were expected to fire 4 shots per minute for the first 4 minutes of an engagement. Admittedly, the shooting was pretty haphazard, but the law of averages tells you that if you send enough lead downrange you're EVENTUALLY going to hit something.

To compensate for the advantages of the musket, American riflemen used tactics borrowed from the Indians. They used cover & concealment to ambush British troops, and instead of engaging in decisive battle, they did their damage and faded back into the underbrush, leaving the British to tend to their dead and wounded. These tactics proved to be deadly on the British, but they didn't allow Americans using them to occupy and hold ground. American riflemen were constantly having to fall back before the concentrated fire of the British troops. Even the majority of American troops who were armed with muskets & bayonets like their British counterparts fell back in the face of British bayonet charges. Until Baron von Steuben, a Prussian officer who joined the American Revolution in early 1778, trained Americans to drill and fight with discipline, Americans were not able to even hope to stand before the British Army.

While the majority of engagements in the War were traditional "stand up" battles between musket-armed troops, battles on the frontier and in the South (King's Mountain in particular) were loosely organized affairs that occured in the woods, where the riflemen were able to fire on the British from concealment and withdraw temporarily when bayonets were fixed. This sort of battle proved disastrous to traditional armies who were built to duke it out on open European plains. While you have to admit that rifles v. muskets is a battle that mostly goes to the muskets, it is clear that with the proper leadership and terrain, riflemen can decimate traditional troops without suffering many casualties of their own.

Pistols never played a significant part in the war. Sure, they were nice to have if you were on horseback, or as a backup shot when the enemy was approaching, but no soldier went to war armed solely with pistols. Besides, since blackpowder pistols were just as hard to reload as blackpowder rifles, it was much easier to carry a sword along with your rifle or musket instead of a pistol. They were nice to have as badges of rank, but other than that, they weren't very useful.

In summary, while muskets were superior in large-scale clashes between well-drilled troops at close ranges, rifles were superior when groups as small as one or two people wanted to go pick off a Redcoat or two and live to tell the tale.

After the war was over, and our leadership had turned to writing our Founding Documents, the debate of "rifles v. muskets" was seldom heard. When the Constitutional Convention added the Bill of Rights to the newly written Constitution, they could have written the Second Amendment to exempt rifles and pistols from the Amendment's protection, and simply guarantee a citizen's right to possess a musket or shotgun. After all, rifles were considered "destructive devices" that allowed woodsmen to pick off musket-armed troops at unfairly long distances. With the example of those woodland engagements from the recent Revolution in their mind, don't you think that Colonial leaders would be just a wee bit worried about having frontiersmen do to them what they did to the British? Imagine the Whiskey Rebellion of 1794 if the rebels had decided to march East from Western Pennsylvania and engage Colonial musket-armed troops with their long rifles? The federal troops would have prevailed on discipline and maneuver, but the rifles would have taken a bloody toll before being silenced.

Why didn't the Constitutional Convention discriminate between arms similar to military weapons and these long range weapons from the frontier? Maybe because our founders never considered the difference between weapons to be the point: When a Citizen is free to possess the weapon of their choice, the choice of weapon should not be up to the government. Many of the documents surrounding the Constitutional Convention (Federalist Papers, letters & speeches, and the few surviving copies of "Stuff Jefferson Said") state that an armed populace would not only be able to hunt deer & ducks, but that they would be able to take up their arms to protect themselves from despots in government offices.

Now don't get me wrong: I think that a SMALL amount of gun control is valid. I don't consider barring felons from owning firearms to be gun control (duh, it's FELON control, dipshit), but I will concede that barring citizens from owning "destructive devices" like grenade launchers, artillery pieces, guided missiles, A-10 Warthogs, and chemical weapons isn't exactly trampling on their right to bear arms. Machine guns, silencers, sawed-off shotguns and short barreled rifles? They're already legal to possess, so long as you live in a state that allows them (Iowa doesn't) and you submit yourself to inspection as a Class III permit holder. Should there be a bit fewer laws prohibiting qualifying citizens from having Class III permits? Yes, but I do agree with some of the regulations, even while I believe that Americans have the right to keep and bear arms.

What I don't agree with is that there are certain firearms that are OK for your government to use, but not OK for you to keep in your private residence. If a government is going to ban weapons with "evil assault features" like bayonet lugs and flash hiders from ownership by citizens, why not ban their use by police and military personnel?

OK, that's getting off the track. My point here is that when confronted with the opportunity to differentiate between different classes of weapons, the framers of the Constitution refused to play that game. They put an unambiguous right into our Founding Document, and placed themselves at risk to citizens who might rise up to confront their possible future tyranny. That, my friends, is putting a whole SHITLOAD of faith in the average, everyday American.

I daresay that our current crop of "leaders" could learn a lesson or two from their predecessors.

posted by Russ from Winterset at 08:05 PM

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