• What Happens When You Live Strictly According to the Original Constitution in Present Day New York City?

    In Which A.J. Jacobs Carries a Musket Around Manhattan

    I recently discovered that if you walk around New York City while carrying an eighteenth-century musket, you get a lot of questions.

    “You gonna shoot some redcoats?”

    “Can you please leave?”

    “What the hell, man?”

    Questions aside, a musket can come in handy. When I arrived at my local coffee shop at the same time as another customer, he told me, “You go first. I’m not arguing with someone holding that thing.”

    Why was I carrying around a ten-pound firearm from the 1790s? Well, it’s because I’m deep into my year of living constitutionally. I’ve decided to explore our founding document by expressing my constitutional rights using the tools and mindset of when they were ratified in 1791.

    I will bear arms, but only those arms available when the Second Amendment was written. Hence the musket and its accompanying bayonet.

    I will exercise my First Amendment right to free speech—but I’ll do it the old-fashioned way: by scratching out pamphlets with a quill pen and handing them out on the street.

    My right to assemble? I will assemble at coffeehouses and taverns, not over Zoom or Discord.

    Thanks to the Third Amendment, I may choose to quarter soldiers in my apartment—but I will kick them onto the street if they misbehave.

    My goal is to understand the Constitution by expressing my rights as they were interpreted back in the era of Washington and Madison (or, in the case of the later amendments, how those amendments were interpreted when they were ratified).

    I’ve recently become fascinated by the debate over how we should interpret our nation’s founding document. How much should the meaning evolve, and how much should it be beholden to the past and tradition? Should we search for the original meaning, or is the Constitution a living document? It’s a vastly important question. The Supreme Court’s view on this has guided their decisions on women’s rights, gun rights, environmental regulations, and religion.

    Is going solo really originalist? Or was I meant to bear my musket as part of a group?

    For my project, I want, as much as possible, to get inside the minds of the Founding Fathers. And by doing so, I want to figure out how we should live today. What do we need to update? What should we ignore? Is there wisdom from the eighteenth century that is worth reviving? And how should we view this most influential and perplexing of American texts?

    *

    From the very start of my project, I’d pledged to bear a musket on the streets of New York in order to gain perspective on the Second Amendment and its origin.

    The Second Amendment is, perhaps, the most controversial of all the Amendments. It says: “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.”

    The most common arms in 1791 were muskets. So I started my Second Amendment quest by Googling “muskets for sale” and found a Texas-based online store that sold antique firearms. The store billed itself as “The Best Damn Gunshop in the World.” I clicked on the image of a Springfield flintlock musket from 1812. I would have preferred an older weapon, but at least it was based on a 1795 design, and it was the cheapest one I could find. Still wildly expensive, though: nineteen hundred dollars.

    After I bought it, I called the store’s toll-free number to follow up. I had read that muskets need a special type of black gunpowder. Modern gunpowder is too powerful.

    “Do you sell black gunpowder?” I asked.

    The man from the store apologized. He usually does, but he’s all out because the gunpowder factory has been closed for several months.

    “What happened?” I asked.

    “It’s being rebuilt from their latest mishap,” he said.

    A mishap. Hmm. Note to self: Do not get a job at a vintage gunpowder factory.

    My failure to obtain gunpowder turned out to be a stroke of luck. An expert told me that, under New York State law, owning a musket is legal because it is considered an antique. But as soon as you load it, it must be registered as a weapon.

    A week later, my powderless musket arrived in a long cardboard box. It was five feet—almost as tall as my wife. I was struck by how elegant it was for something designed to kill, a work of true craftsmanship: dark wood, intricate iron fixings. And heavy. About ten pounds. It couldn’t have been easy for Patriots to lug it around the countryside, along with their canteens and food and everything else.

    It was a weird feeling to hold a part of history. This device was probably used in the War of 1812 to maintain our independence. You could consider it a tool that helped save democracy and fought a monarchy. But it’s also a killing machine. It might have killed a British man. What was he like? Did he have a family? What did he like to eat and read? What were his insecurities?

    I’d never borne arms in public. So I decided I would express my Second Amendment right to do so on the Upper West Side. I put on my tricorne hat, held the gun leaning against my right shoulder, and marched out my building lobby.

    And march is the right word. The idea of carrying a musket on Columbus Avenue was so bizarre and norm-breaking, I felt I had to act with confidence or I’d never do it. So I strode purposefully, looking straight ahead.

    As I mentioned above: I received mixed reactions. I got quite a few angry and/or baffled stares and was often given a wide berth on the sidewalk. But not everyone was alarmed. “Cool weapon!” said a guy sitting on a stoop, smoking a cigarette. When I sat down on a bench for a moment, a woman approached. She looked to be in her forties, and she was curious. “Could I pick it up?” she asked. I probably should have said no, but I didn’t. She lifted it like it was a barbell. “It’s so heavy!” she said.

    I found walking with a musket, by turns, exhilarating and stressful. Exhilarating because, on some animal level, I felt safer, more powerful. Which is insane, because it wasn’t even loaded. And stressful because, well, what if I ran into someone with a gun from this century? I’m aware that, as a white man, I was a hell of a lot safer than if I had been a person of color carrying around a musket. I didn’t see any cops on my walk, but if I had, I had a much lower chance of being arrested or hassled or shot. But I was still nervous.

    My wife was not happy about having a musket in the house or on the street.

    “What if it goes off accidentally?” she asked.

    I told her that since we didn’t have gunpowder or lead balls, the chances were remote. She was only partially mollified. (Note: She read this and wanted to make clear she was not mollified at all. She is still very unhappy about the musket part of this experiment.)

    I bore my musket on the streets of New York—and I bore it alone, with no one else marching beside me. Which brings up a question: Is going solo really originalist? Or was I meant to bear my musket as part of a group?

    This is the heart of one of the major disagreements about the Second Amendment’s original meaning. Was it about the rights of individuals or about the rights of state militias?

    Traditionally, gun rights advocates argue that the Second Amendment’s original meaning is about individuals. The whole point was to guarantee a right to self-protection. As Scalia wrote in the 2008 District of Columbia v. Heller decision, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

    To bolster their case, gun rights advocates argue that the Second Amendment has roots in English law, including a clause in the 1689 British Bill of Rights that said, “Subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law.” They also point out that the Second Amendment contains the phrase “the right of the people.” In other parts of the Constitution, this same phrase is used to refer to an individual’s right, not a group’s right.

    On the other hand, gun control advocates traditionally argue the Second Amendment was never intended to apply to John Q. Publick’s right to carry a gun to the farmers’ market. It was all about making sure states had a militia. Just look at the opening phrase of the amendment: “A well regulated Militia.” The whole purpose of the Second Amendment was to protect states from the federal government. The Anti-Federalists were worried the national government would disband the state militias. They weren’t talking about gun ownership for private use.

    Incidentally, in case the gun control side is correct I figured I should express my Second Amendment right to form my own well-regulated militia.

    It didn’t go well. The modern version of New York’s militia is called the New York Guard and is part of the state government. Apparently they don’t want any competition.

    Simply asking Julie to start a militia with me might count as a felony crime. The New York State military legal code states that it’s a felony to “assemble or conspire to assemble with one or more persons as a paramilitary organization.”

    I figured I’d better get permission before conspiring to assemble. A friend of a friend is a lawyer for New York State, but she declined to talk to me. I resorted to emailing Governor Kathy Hochul through the New York State web page to ask for permission. Governor Hochul sent a response surprisingly quickly.

    “Thank you again for writing and for helping to make New York the beautiful and diverse state that it is. It’s my great honor to serve you as we lead the way forward.”

    So ended my quest to form a militia.

    *

    Bearing a musket around New York City one thing. But I figured if I really wanted to understand the musket, I’d have to shoot it.

    This is not so easy. I was told that shooting my antique musket might result in the weapon’s “catastrophic failure.” Which meant it would blow up in my face.

    If I really wanted to shoot a musket, I’d need a modern replica of a musket. I found a Revolutionary War reenactor who has a small business selling replicas of old guns. When I emailed the musket-monger, he said he had a 1774 Brown Bess that I could pick up a few weeks later at a gun show an hour north of New York City.

    “A second musket?” My wife was incredulous. It wasn’t ideal, I admitted, but it was my job. On a Sunday morning, I drove to the gun show, which is not part of my usual weekend routine, and walked to the man’s booth. I took out my checkbook, my bottle of ink, and my goose quill.

    “No, no, no,” he said, pointing to the goose quill.

    “It works as well as a regular pen,” I protested.

    “Uh-uh,” he said. “I don’t want to have to chase you down if the bank says they won’t accept it.”

    He may be an originalist when it comes to guns, but not so much when it comes to payment.

    As part of my project, I had joined a Revolutionary War reenactor group, the Third New Jersey Regiment. I learned that you can’t shoot real ammunition during the battle reenactments—for obvious reasons they use blanks.

    But a few times a year, the regiment goes to a shooting range and fires off ye olde musket balls. “It’s an important part of the experience,” Mark, one of my superiors, told me. “You can’t properly be a historical interpreter if you’ve never shot a musket. You have to know what it feels like.”

    A few weeks later, I drove to the gun range in New Jersey, my new musket in the trunk. New Jersey had more lax musket laws than New York, so there was no problem shooting there. I arrived at the range, which was located in a woodsy area, with dozens of men shooting modern weapons at silhouette targets. Far in the back was a section reserved for the eighteenth century.

    My tutor, Ed, was wearing a Third New Jersey Regiment T-shirt and a black hat that resembled a beret more than a tricorne. I put on my protective eyewear and earmuffs, which made me look like the people with the light-up sticks on an airport tarmac.

    The nearby tables and counters were covered with gear—lead balls of different sizes, brushes for cleaning, polishes, mutant-looking wrenches. My fellow reenactors are really into the mechanics of these guns. One regiment member, when he inspected my 1812 musket, could divine its life story from the parts. The dark barrel meant that it was hung over a fireplace. The shape of the ramrod meant it had been converted to a hunting weapon. “It’s a beautiful piece,” he said.

    Back at the range, it was time. Ed handed me my new replica musket. I went through the commands from Baron von Steuben’s 1778 Manual of Arms:

    Step 1: Half-Cock your Firelock! Pull the hammer back into a half-cock position.

    Step 2: Handle Cartridge! Take out a cartridge, a thin tube of paper rolled around black gunpowder and a lead ball.

    Step 3: Prime! Bite off the top of the cartridge paper. Pour a pinch of the powder into the pan, the iron bowl near the trigger. (This step did not go smoothly. I bit too far down and got a mouthful of bitter gunpowder, which I had to repeatedly spit out. “Is it dangerous to eat?” I asked. “It won’t kill you,” one of my fellow soldiers said. Not the vigorous denial I hoped for).

    Step 4: Shut Pan! Snap close the frizzen (a metal plate) over the pan.

    Step 5: Charge with Cartridge! Pour the rest of the powder, the ball, and the paper down the barrel.

    Step 6: Draw Rammer! Remove ramrod, the long iron rod under the gun barrel.

    Step 7: Ram Down Cartridge! Ram the powder and ball down the barrel.

    Step 8: Return Rammer! Return ramrod to its slot beneath the barrel. Bring musket up even to left shoulder with lock facing out. (This also turned out to be a tricky step for me. My ramrod got stuck and it took several minutes to shake it out.)

    Step 9: Shoulder Firelock! Place the musket resting on your left shoulder.

    Step 10: Full Cock, Firelock! Bring the musket up in front of your face. Pull the cock back fully so that the chunk of flint is ready to strike the frizzen and send off sparks.

    Step 11: Take Aim! Place musket firmly against right shoulder, close left eye looking down the barrel, and exhale.

    Step 12: Fire! Pull trigger.

    I squeezed the trigger slowly. Pop! There was a little explosion by my ear—but that was it. I didn’t feel the gun kick back into my shoulder.

    “A flash in the pan,” Ed said.

    A misfire. Or a nonfire, to be more specific. Turns out muskets are as finicky as Italian sports cars from the 1950s. The guns have so many moving parts, musket owners spend much of their time cleaning and repairing. My frizzen wasn’t sufficiently smooth, so the sparks weren’t big enough to ignite the powder in the barrel.

    Ed lent me a different musket, and this time it worked. I pulled the trigger, after which there was an odd one-second delay while the spark went into the muzzle, then bam!—the lead ball shot out with a huge puff of smoke. The musket kicked backed into my shoulder.

    Overall, it had taken me several minutes to load and fire the musket. A skilled Revolutionary War soldier could shoot three or four balls per minute, which is an impressive feat. By contrast, a semiautomatic weapon can basically fire as many times as you can pull the trigger—dozens per minute.

    My shot ripped through the paper and slammed into the dirt behind the target, creating a cloud of dust. We went to retrieve the targets. My shot had hit the poster but missed the redcoat himself by several inches.

    “Well, you scared him,” Ed said generously.

    It was not totally my fault. Muskets are very hard to control. Unlike a rifle, which has a grooved interior that makes the bullet fly in a tight spiral, a musket ball bounces around inside the barrel as it exits, emerging at unpredictable angles.

    One of my fellow soldiers told me I should be proud of my authentically bad aim.

    As my musket-shooting exercise made clear to me, a musket is a vastly different piece of machinery from a modern AR-15. Which brings up a second huge area of contention between the two sides of the Second Amendment debate. Namely: Does the Second Amendment apply to modern weaponry?

    The National Rifle Association (NRA) and other gun rights advocates argue yes, absolutely. Scalia, in the 2008 Heller case, wrote that the Second Amendment applied to “bearable arms . . . not in existence at the time of the founding.”

    In other words, the amendment is about the principle of self-defense, not about the actual type of gun. Today, you need much more powerful guns to protect yourself from other powerful guns.

    What’s more, some gun rights advocates argue, Americans in 1791 already had arms more powerful than muskets. There were rifles, pistols, and cannons. They knew gun technology would continue to evolve. If you say the Second Amendment only applies to muskets, that’s like saying the First Amendment should only apply to wooden printing presses.

    On the other hand, gun control fans argue the Second Amendment should not apply in the same way to all guns. Muskets and AR-15s are just too different. One shoots at most four rounds a minute; the other can shoot dozens of rounds a minute.

    Those in favor of tighter gun control assert that it’s like taking a law written for bicycles and applying it to an eighteen-wheel truck. Both are vehicles, but they are radically different. This is the point made by podcaster Peter Shamshiri, of the podcast 5-4: “The fact that we use the same word to describe them is almost an etymological coincidence.”

    If we still had 1791 technology, they say, gun control would not be as necessary. School shootings would be much less devastating, because the shooter would be tackled while reloading the musket.

    *

    That day in June was the first time I’d ever shot a musket but not the first time I’d shot a gun. Despite my liberal New York City upbringing by a family of gun skeptics, I’d fired several weapons over the years. I was on the riflery team at camp. I had shot clay pigeons at a work retreat. I had gone to a rifle range with a gun-loving actor I was profiling for Esquire magazine.

    What if the traditional gun rights and gun control views about the meaning of the Second Amendment were both wrong?

    I liked recreational shooting about as much as I liked bowling. I found it an enjoyable diversion—there’s something I find satisfying about propelling a small object toward a target, whether it’s on a gun range or an archery range or a Skee-Ball game at a carnival. But it was nothing I would ever pursue in earnest. Nor had my experiences on the gun range sparked in me an urge to buy a weapon for hunting or for personal protection. My recreational shoots felt more like life-size video games. They seemed separate from the idea of guns as violent weapons used on humans or animals.

    As for my stance on gun policy going into the year of living constitutionally? It won’t be much of a surprise. I’ve spent most of my life favoring more regulation such as better background checks and the banning of certain types of assault weapons, among other measures. But I’m not opposed to all gun ownership.

    However, this project is not about my personal views. I’m trying to assess what the most accurate constitutional view is. As I mentioned above, the two sides clash over whether the Second Amendment applied to individuals or militias, and whether it should apply to modern weapons.

    Another deep disagreement between the two sides is less about rights and constitutional originalism and more about consequences. But it is still a massive area of contention: Do guns in America do more harm than good?

    Traditional gun rights advocates say guns are, in fact, good for society. Only the most extremist conspiracy nuts deny the existence of mass shootings. But many gun rights fans argue this: Imagine how many more shootings there would have been without armed, law-abiding citizens to protect us. Imagine how much violence guns have prevented.

    If you go on the NRA website, you can read such arguments as “Mass murderers have repeatedly been deterred or stopped by citizens carrying lawfully concealed firearms,” and “Over the past three decades (1991–2019), violent crime rates have dropped by more than half. The number of privately owned firearms in the United States doubled in that same period.” Plus, there are other benefits, argue gun rights folks. If you think the idea of fighting tyranny with privately owned guns is out of date, they’ll tell you to look at the people of Ukraine, who used their guns in the fight against Russian invaders.

    Some advocates say that guns are not just good for our physical safety. Guns are also good for the mental health of the gun owner, for their peace of mind. This argument has a long history. Thomas Jefferson recommended daily walks with the gun, which he said “gives boldness, enterprise and independence to the mind.”

    Most gun control advocates would argue that guns are overall harmful—at least with current lax laws. Guns are a scourge on American society. Just look at the news any day of the year. There were 647 mass shootings in America in 2022, according to the Gun Violence Archive. That year saw 19,952 deaths from gun homicides, and another 26,993 deaths from suicides with guns. Turn on CNN, and you might see police swarming a school with a sociopath inside killing kids. Or a report of a three-year-old who accidentally shot his father.

    Gun control activists point to statistics that show living in a household with a gun owner does not make you safer. On the contrary, there is much research that shows you’re more likely to die if you live in a household with a gun. Gun-owning households suffered a higher rate of homicide. Gun-owning households suffered a higher rate of homicide. This is partly because family members in gun-owning households are more likely to kill each other, either in anger or by accident.

    And then there’s the harm to the country’s mental health. Gun control advocates point to the grief of thousands of people who have lost family members. They say that active shooter drills at schools traumatize our kids.

    It’s hard to quantify mental states, so I doubt I could offer data that would cause anyone to change their mind about guns’ positive or negative effect on America’s minds (though I certainly don’t think my own delusional sense of power helped the common good).

    The case for physical harm reduction seems clearer, though. Tighter gun regulations, including a more rigorous permit process, would reduce the amount of death and violence in America, according to the latest science. Though, again, this observation is not an argument about original Second Amendment rights. This is an argument about societal consequences—something a strict originalist would not consider.

    Let me end with one more view of the original meaning of the Second Amendment: What if the traditional gun rights and gun control views about the meaning of the Second Amendment were both wrong? Saul Cornell of Fordham argues this very point. “Although each side in the modern debate claims to be faithful to the historical Second Amendment, a restoration of its original meaning…would be a nightmare that neither side would welcome,” he writes in his book A Well- Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.

    Cornell argues that when the Constitution was ratified, guns were connected to your civic duty. The Second Amendment guaranteed that you could own a gun, and you needed that gun because you were legally required to be in a militia. You were expected to be a minuteman, ready to be called into battle at any time: “The minuteman ideal was far less individualistic than most gun rights people assume, and far more martial in spirit than most gun control advocates realize.”

    Supporters of gun control would not like the requirements that adults had to buy guns and get firearm training. “Gun control advocates…would certainly look askance at the idea of requiring all able-bodied citizens to purchase their own military-style assault weapons.”

    On the other hand, gun rights fans would likely balk at early America’s strict requirements about gun registration and inspection. “It would certainly involve more intrusive gun regulation, not less,” Cornell writes. “Proponents of gun rights would not relish the idea of mandatory gun registration, nor would they be eager to welcome government officials into their homes to inspect privately owned weapons, as they did in Revolutionary days.” Cornell says that liberty in 1791 was not contrary to regulation. They went hand in hand. “Regulation in modern America is typically seen as antithetical to rights. The opposite was the case for the colonists, who believed that liberty without regulation was anarchy. Without government regulation there would have been no minutemen to muster on the town greens.”

    Cornell researched the original meaning of the Second Amendment by looking at old newspapers, pamphlets, and debate transcripts. He is one of a group of historians—including Jud Campbell of Stanford—who stress just how foreign the past was.

    If Professor Cornell and likeminded scholars are correct, then two things are clear. First, for my project, I’m going to have to get my musket into working order. I need to fix my busted frizzen so that it would pass inspection and be militia-ready. Otherwise, I am neglecting my civic duty.

    Second, none of the constitutional rights were meant to be absolute rights. Your right to free speech and to bear arms would have been weighed against their impact on the public good. Under this view, the current originalist approaches to the Second Amendment—approaches that mostly ignore the societal consequences in favor an individual-rights-based view—are not very originalist at all.

    At least that’s my takeaway. Though I could be a victim of confirmation bias. As Hamilton wrote in Federalist No. 1, “numerous” and “powerful” are the forces that “give false bias to the judgment.” So as Hamilton suggested, I will proceed on this journey with a combination of commitment and humility.

    __________________________________

    From The Year of Living Constitutionally: One Man’s Humble Quest to Follow the Constitution’s Original Meaning by A.J. Jacobs. Copyright © 2024. Available from Crown, an imprint of Crown Publishing Group, a division of Penguin Random House, LLC.

    A.J. Jacobs
    A.J. Jacobs
    A.J. Jacobs is a journalist, lecturer, and human guinea pig who has written four bestselling books—including Drop Dead Healthy and The Year of Living Biblically—that blend memoir, science, humor, and a dash of self-help. A contributor to NPR, The New York Times, and Esquire, among other media outlets, Jacobs lives in New York City with his family.





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