President Joe Biden claimed in May 30 remarks that individuals could not buy cannons when the Second Amendment was enacted in 1791.
Individuals could own and buy cannons when the Second Amendment was enacted, according to experts.
Biden has called for a federal ban on assault weapons and new “red flag” legislation following a school shooting in Texas that left 19 students and two teachers dead, according to The New York Times.
Speaking to reporters on Memorial Day about his plans, Biden claimed, “The Constitution, the Second Amendment was never absolute. You couldn’t buy a cannon when the Second Amendment was passed,” according to Newsweek.
Experts who spoke with Check Your Fact and other publications said Biden’s claim about cannons is factually incorrect. (RELATED: Did The NRA Support Mark Warner As A Governor?)
Nelson Lund, a law professor at George Mason University’s Antonin Scalia Law School, pointed Check Your Fact to a paper he wrote, published in the University of Florida Journal of Law & Public Policy.
“During the founding era, and apparently for many decades thereafter, civilians were free to possess military weapons that were more powerful and destructive than modern machine guns,” reads the paper in part. It goes on to note that cannons were among these weapons and that individual states were “free to regulate these weapons as they saw fit” under the purpose of maintaining “a well-regulated militia.”
David Kopel, the research director at the Independence Institute, agreed with Lund’s assessment in an email to Check Your Fact.
“As of 1791, there were no federal or state bans on any type of arm,” said Kopel. “The Constitution presumes that individuals will own cannons. Article I, section 8, gives Congress the power to ‘grant Letters of Marque and Reprisal.’ Such letters authorize a person to raid and capture the ships of an enemy nation. In the eighteenth century, any ship capable of combat had cannons.”
As Kopel states, the Constitution allowed for Congress to grant letters of marque and reprisal in times of war. Over 500 ships sailed underneath such letters during the War of 1812, according to Britannica. Some of the ships were armed with cannons, The Washington Post reported.
Saul Cornell, a history professor at Fordham University, pointed Check Your Fact to an article he wrote for Slate in 2021 in which he argued that Biden’s previous statement on cannons was wrong, but his wider view on the Second Amendment was correct.
“Although Biden did not get the history right in this instance, the constitutional principle he identified was uncontroversial at the time of the Second Amendment,” Cornell wrote. “His understanding of constitutional law in this regard is far more accurate than that of the gun rights libertarians who have mocked him. We the people acting through our representatives do have the awesome power to pass laws to regulate and, where necessary, prohibit weapons that pose a threat to public safety.”
Cornell goes on to mention a commentary from Sir William Blackstone, an important 18th-century commentator on English law, who once observed, “The offence of riding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land, and is particularly prohibited by the Statute of Northampton.” Supreme Court Justice Antonin Scalia later cited this comment from Blackstone in a 2008 ruling that acknowledged the limitations of the Second Amendment.
There were some state and local laws that limited ownership of weapons in the years after the Second Amendment was passed, according to PolitiFact. Such laws include a 1792 Virginia law preventing black people from owning any firearms and a 1795 Massachusetts law that targeted rioters who owned guns.
Check Your Fact has reached out to the White House and will update this article if a response is provided.
UPDATE: This article has been updated to correctly characterize Professor Cornell’s comments.