One argument often used by people who oppose the right of self-defense is that the framers of the Constitution could not have anticipated modern guns or their lethality. Therefore, the 2^nd Amendment doesn't apply to dangerous "assault" weapons such as the AK-47, and all manner of restrictions on civilian firearm ownership are both desirable and permissible. This argument demonstrates a serious misunderstanding of both the U.S Constitution and the history that produced it.

It is important to remember that the framers of the Constitution were products of the Enlightenment. They valued science and reason and expected technology to advance. What the Framers never expected to change - and subsequent history has proven them correct - is human nature and the tendency for systems of self-government to degenerate into factionalism and oligarchy. The Constitution addresses this by erecting a government with failsafe mechanisms to resist that tendency. James Madison, the principal architect of both the Constitution and the Bill of Rights, would later write that the ingredients for the failure of a republic were "...a standing army, an enslaved press, and a disarmed populace." Thus, there is no enumerated power in the Constitution for regulating either the press or private arms. There is also the constraint of both the 1^st and 2^nd Amendments to restrict back-door attempts at regulation through the enumerated powers.

Clearly if technological change vitiates the 2^nd Amendment then it must vitiate the 1^st as well, since the Framers never anticipated the telegraph, radio, television, or the internet. Clearly civil libertarians have not adopted this position. It should be remembered that the ACLU, which continues to deny the 2^nd Amendment protects an individual right, defended The Progressive magazine back in 1979 when it sought to publish information on how to build a hydrogen bomb. If the 1^st or 2^nd Amendments are now a bad idea, then the correct remedy is to amend the Constitution - not to wish them away.

So, is the 2^nd Amendment a dangerous anachronism? It would appear to be a self-evident truth that guns are much more lethal now in absolute terms - they fire more rapidly and the projectiles they shoot travel at higher velocity than their 18^th century counterparts. The problem with this simple comparison is that it removes 18^th century firearms from their historical context. It was a context in which the technology of small arms had made major advances over the past 2 centuries while the technology of medicine had changed very little since the time of the ancient Greeks. What would today be considered a minor wound would frequently be fatal on the 18^th century battlefield. Surgical techniques were primitive, the germ theory was nearly a century away, and though transfusions were performed in the 19^th century, blood typing wasn't developed until the early 20^th. Antibiotics wouldn't be used to reduce battlefield deaths until WW II. All of the historical evidence on casualty rates in warfare indicates that small arms at the time of the American Revolution were much more lethal on the battlefield (and off) than small arms today.

The ultimate terror weapon of the American Revolution was actually a civilian firearm: the Pennsylvania (or Kentucky) long rifle. The long rifle was used for hunting and a decent marksman could reliably hit a target the size of a man's head at 200 yards. The weapon of choice for the professional armies of the 18^th century was the smoothbore musket, which was inaccurate at anything beyond 50 yards. American military units typically used detachments of marksmen firing the long rifle to augment conventional forces armed with musket and bayonet. The long rifle made a significant contribution to the success of the American colonists in their war against the British. It may well have been decisive during Burgoyne's disastrous Hudson Valley campaign, which ended with the American victory at the Battle of Saratoga. Throughout the campaign, American snipers harassed British formations, with officers being a favorite target. Anyone who took a salute was likely to be shot by some farmer or other irregular armed with the long rifle. At Saratoga, when Burgoyne's 2^nd in command, General Simon Fraser, was rallying British troops, he was targeted by American snipers. Fraser was hit in the abdomen at a range in excess of 300 yards, and would die of blood loss later in the day, a victim of the primitive medical technology.

Saratoga and scores of other battles amply demonstrated to the framers how deadly firearms were. Despite the extreme lethality of firearms, the Framers thought it essential that private citizens be trusted with them, just as they thought it essential that they be trusted with free speech, the right of assembly, a free press and all the rest.

A discussion of the constitutional right of self-defense and firearm lethality would be incomplete if we didn't include the American Civil War and the 14^th Amendment. At the time of the Civil War, medical technology still lagged far behind the technology of killing. The development of the large caliber, soft lead minie ball and the rifle musket produced a firearm that was accurate at over 300 yards. Minie balls produced massive trauma on impact, shattering bone and blowing gaping holes in soft tissue. The largest percentage of battlefield casualties were produced by the muzzle loading rifles used by the Union and Confederate troops. After the Union victory, southern state governments employing militias and paramilitaries attempted to disarm newly freed slaves and Republicans, making it easy for them to be intimidated or killed. Congress reacted by proposing the 14^th Amendment, which was intended to extend the protections of the Bill of Rights to the states. So, even though firearms were demonstrably more lethal, based upon battlefield casualties during and after the Civil War, than they had been during the Revolutionary war, the framers of the 14^th Amendment were specifically concerned with protecting the rights of private citizens to be armed just as well as members of the military.¹

During and after the Civil War, repeating firearms and machine guns were developed. However, the lethality of military small arms (i.e., "assault weapons") actually began to drop. As already indicated, medical technology began to advance very rapidly in the latter part of the 19^th century, and soldiers were much more likely to survive their wounds. However, one of the most important developments for military small arms was the Hague Convention of 1899 ², which outlawed expanding bullets and mandated the full metal jacket or FMJ bullet. This had the effect of reducing the lethality of wounds. It turns out that the logistical cost of dealing with wounded soldiers is much greater than the cost of dealing with dead soldiers, which is why countries were willing to sign the Convention.

The reduction in lethality first became apparent after the Russo-Japanese war of 1904-1905. The Japanese government had set up a program to compensate disabled veterans of the war and needed to measure disability in order to determine the level of compensation. One of the disabilities for which veterans would receive payment was partial or total blindness resulting from head wounds. The doctor who was retained to make this determination ended up studying both the impairment in the visual field and the wound that caused it. As documented by Mitchell Glickstein in a 1988 Scientific American³ article entitled "The discovery of the visual cortex", so many soldiers with head wounds had survived that he was able to accurately map the location of the wounds and correlate that with reductions in the visual field. It produced the first map of the human visual cortex. Had the doctor been dealing with soldiers wounded by projectiles such as minie balls, the number of survivors of head wounds would have been very small (if not zero) and thus the sample size would have been insufficient to perform the mapping. A doctor in the late 18^th century conducting a similar investigation of Revolutionary War survivors of head wounds would have encountered the same problem of a small sample size because primitive surgical techniques would have left few survivors.

Guns were horrific weapons in the 18^th century, yet the Framers believed that all citizens had a fundamental right to own and carry them in order to defend both themselves and the state. The Framers would be aghast at the restrictions that have been placed on that right today.

1. See, No State Shall Abridge: The 14th Amendment and the Bill of Rights, by Michael Kent Curtis. This is the definitive book on the history and meaning of the 14th.
2. "Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body"; July 29, 1899 (Hague Convention).
3. Glickstein, Mitchell. "The discovery of the visual cortex", Scientific American, September 1988, page 84.