Meddling with the Constitution is excused with the claim that it was written for an agrarian society by hicks who could not imagine the development of repeating firearms. Like most excuses it is a combination of ignorance, wishful thinking, assumptions and outright lies.
The Constitution does not refer to agriculture. It refers to the power of Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and discoveries;”1 The Constitution was not written by hicks, but by amateur scientists so confident of the advance of technology that they provided for it in their fundamental law.
Many technological advances were made during the lives of the Revolutionary generation.2 Machines for spinning thread and weaving cloth enabled mass production. A Revolutionary inventor created a submarine. Hot air balloons flew, which may have led to the invention of the parachute in 1783. Steam engines turned into pumps and machines and transportation. During the Revolutionary period, the greatest scientific question of the age was solved: the invention of a means for measuring longitude.3 This holy grail of navigation was a chronometer, an improved clock which was accurate under shipboard conditions.
There are claims that the Supreme Court will rule that the Second Amendment only protects firearms technology which existed in the late 18th Century. These claims should not exist.
It will be argued that the Founders may not have noticed the scientific development going on around them. But scientific references in their writings, the new gadgets they sent each other, and scientific books in their libraries say that they did notice. Benjamin Franklin is the best example of scientific acumen. A member of the London and Paris scientific societies, Dr. Franklin helped advance electricity from a parlor trick to a field of science. He invented the lightning rod, harmonica and aptly named Franklin stove.4 Franklin played chess against “The Turk”, a machine built for that purpose, and lost.5
Carl Sagan observed that Thomas Jefferson was the last president who understood science. When Jefferson referred to “the laws of nature” in the Declaration of Independence he meant science.6 Jefferson invented the moldboard plow7 and a portable copying press.8 Jefferson used a polygraph which allowed him to make an exact copy of his letters as he wrote them.9 Jefferson was also a member of the “United States Military Philosophical Society,” an organization of army engineers and civilian scientists and inventors.10
In debates over the Patent Office, George Washington argued the need to encourage “the introduction of new and useful inventions from abroad” and “the exertions of skill and genius in producing them at home.”11 The new president may have been inspired by his own adventures with the science of dentistry.12 However, Washington always exhibited a keen interest in science. As a young man, he attended an exhibit of mechanical toys, an innovation in an era of corn-husk dolls.13 Later in life his interest turned to the practical. As a surveyor, he doubtless used a theodolite, an instrument used to more accurately measure angles.14 As a landowner, Washington purchased the latest technology for Mount Vernon even making his own modifications to the plow.15
James Madison, author of the Second Amendment, received technological innovations from Thomas Jefferson when the latter was ambassador to Paris.16 Madison used frequent scientific metaphors in his contributions to the Federalist Papers.17 The fact that he used these metaphors in crucial public articles directed at the future of the Republic indicates his confidence in the ability of the public at large to understand them.
John Adams stated that the first and greatest proof of genius was the invention of new wheels and machines to “shorten, facilitate, and cheapen, and manufacture &c.”18
It will doubtless be argued that despite personal involvement with improved technology, the Founders could not possibly have imagined an increase in firepower. The Founders not only imagined an increase in firepower but knew of firepower improvements. Benjamin Franklin discussed the firepower advantage of bows and arrows over muskets.19 But even the great Franklin could not convince Americans to revert to bows and arrows. Instead, there were efforts to make guns fire faster and more reliably.
Advances in reliability had occurred in the previous century. Matchlock muskets, wheelocks, dog locks, and snaphaunces had given way to flintlocks. Each step was an improvement in reliable ignition and therefore firepower. The invention of the socket bayonet doubled the effectiveness of the musket. However, multiple shots was the goal. Since the time of matchlocks multiple shots had been accomplished through multiple barrels and superimposed loads in a single barrel. Some flintlocks with revolving chambers and a single barrel survive. Several gunsmiths produced guns with powder and shot stored in the stock. A crank rotated each charge into firing position; one example carried ammunition for twenty-five shots. Multiple records of the 1720s mention a “Mr. Pim of Boston” who offered a gun which fired eleven times in the space of two minutes, about twice as fast as a common musket of the period.
The Boston Gazette of 12 April, 1756 advertised a gun which would fire nine times “as quick… as you please” proving the concept was well known in the center of Revolutionary activity.20 In 1718, James Puckle patented a crank operated machine gun which saw action against the French in the West Indies.21 During the Revolution, British Major Patrick Ferguson invented a breech-loading rifle which combined firepower with accuracy in a package that was reliable under combat conditions.22
“The War of American Independence coincided with the advent of American industrialization, and these dual trans-formations ultimately conjoined in a way that has shaped the character of much of our history.”23 Americans have an enduring belief in the ability of technology to solve our problems. This confidence is best exhibited in the Star Trek series where science and technology always seemed to save the day, even when the problem was science and technology.
There are claims that the Supreme Court will rule that the Second Amendment only protects firearms technology which existed in the late 18th Century. These claims should not exist. There has been no question that freedom of speech includes high speed printing presses24 and electronic broadcasting, technologies unknown to the Founders.25 The involvement of the Federal Communications Commission in electronic broadcasting is based on the legal fiction that there are a limited number of broadcast frequencies which must be administered for the public good.26 In no case have the courts limited a constitutional right to the technology that was available when the Bill of Rights was adopted in 1791.
The Bill of Rights establishes a set of principles. Technology does not affect the reach of those principles, those principles affect the reach of technology. For example, the Fourth Amendment ensures that citizens shall be secure in “their persons, houses, papers, and effects against unreasonable searches and seizures.” In 1967, the Supreme Court was asked to determine if this right extended to comments made in a public phone booth. The genesis of the case had Mr. Katz “transmitting wagering information by telephone”.27 Mr. Katz, believing his phone was tapped, took the precaution of using a phone booth, a technology and structure unknown to the Founding Fathers.
However, the FBI had taken the precaution of placing a listening device on top of the booth; but they did not take the precaution of getting a warrant. The government argued that the booth was not a constitutionally protected area. The Court ruled that “the Fourth Amendment protects people, not places.” Thirty-five years later the Court ruled that technology cannot be used to erode the privacy guaranteed by the Fourth Amendment.28 If the government cannot use technology to violate a right recognized in 1791, it follows that the government cannot confine a right to the technology of 1791.
The courts may equate modern firearms to 1791 cannon. In 1791, heavy cannon were usually the property of a community group, but not always. Private parties could and did own artillery. The British raid on Lexington and Concord was sparked by reports that the locals had artillery. Light artillery, such as swivel guns and “wall guns” were owned and used by individuals. These guns were light enough to be carried for short distances by individuals and were used to fill an area with bullets, like a modern machine gun.
The Supreme Court will soon have the opportunity to define the Second Amendment.29 If the Court decides for the first time that a right is limited to the equivalent technology available in 1791, there is plenty of proof that the Founders used the equivalent of our repeating rifles.
[ Kevin L. Jamison is an attorney in the Kansas City, Missouri area concentrating in the area of weapons and self-defense. ]
Please send questions to
|Kevin L. Jamison
2614 NE 56th Ter
Gladstone, Missouri 64119-2311
Individual answers are not usually possible, but may be addressed in future columns.
This information is for legal information purposes and does not constitute legal advice. For specific questions, you should consult a qualified attorney.
- Constitution Article I Section 8 paragraph 8.
- Philip ed. Science and Technology, George Philip Limited, Octopus Publishing Group London 1999 at 46-53.
- Sobel and Andrewes Longitude, Walker & Co N.Y. 1995.
- Purvis, Colonial America to 1763, Facts on File, Inc. NY1999 at 273.
- Standage, The Turk, Walker & Co. N.Y. 2002. The machine was a hoax relying on a player hidden among the works but was but a successful hoax and an ingenious machine.
- Cohen, Science and the Founding Fathers, W. W. Norton & Co. N.Y. 1995 at 115.
- Cohen, Science and the Founding Fathers, W.W. Norton & Co. N.Y. 1995 at 293.
- “Who is the most important inventor in U.S. History, The Daily News 16 June, 2005 P. 4 Richmond Missouri.
- Smithsonian “At Monticello, a big birthday for the former owner” May, 1998 at 86.
- Cohen, Science and the Founding Fathers, op cite at 173.
- Cohen, Science and the Founding Fathers, op cite at 243.
- Sognnaes, “America’s most famous teeth”, Smithsonian February 1973 at 47 et seq.
- Barrett, “George and Betsy and Polly and Patsy and Sally . . and Sally . . . and Sally” Smithsonian November, 1973 at 93.
- Purvis, Colonial America to 1763, Facts on File Inc NY1999 at 273.
- George “George Washington Patriot, President, Planter and Purveyor of Distilled Spirits” American History February 2004 at 67.
- Foote, “After more than two centuries, this may be Mr. Madison’s year” Smithsonian, Sept. 1987 at 81.
- Cohen, Science and the Founding Fathers, op cite at 269.
- Cohen, Science and the Founding Fathers, op cite at 221-2. &c – 18th Century abbreviation of etcetera.
- Wilcox Ed The Papers of Benjamin Franklin Vol 22, Yale University Press New Haven 1982 at 343.
- Dow Every Day Life in the Massachusetts Bay Colony, Dover Publications N.Y. 1988 at 136.
- Greaves, “The Antiquity of Repeating Arms” Man at Arms Jan/Feb 1995 at 11 et seq. This summarizes the citations in this paragraph.
- James, “Ferguson Rifle” Guns & Ammo September 2000 at 60 et seq.
- Kasson Civilizing the Machine, Hill and Wang N.Y. 1976 at 3.
- Near v. Minnesota 283 U.S. 697 (1931).
- Red Lion Broadcasting Co v. Federal Communications Commission, 395 U.S. 367 (1969).
- Part of the fiction is that the government administration results in the public good.
- Katz v. U.S., 389 U.S. 347 (1967).
- Kylo v. U.S., 533 U.S. 27 (2001).
- Parker vs. D.C. now renamed Heller vs. D.C. see “Landmark Decision” Concealed Carry Magazine Aug/Sept 2007.