IT WOULD BE BIZARRE INDEED...:

Whitewashing the Second Amendment: As the Supreme Court reviews a historic gun-rights case, lost is the Second Amendment's controversial history—when it wasn't a bulwark against tyranny but a way of enforcing it." (Stephanie Mencimer, 3/20/08, Mother Jones)

Last week at an American Constitution Society briefing on the Heller case, NAACP Legal Defense Fund president John Payton explained the ugly history behind the gun lobby's favorite amendment. "That the Second Amendment was the last bulwark against the tyranny of the federal government is false," he said. Instead, the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. Payton explained that the founders added the Second Amendment in part to reassure southern states, such as Virginia, that the federal government wouldn’t use its new power to disarm state militias as a backdoor way of abolishing slavery.

This is pretty well-documented history, thanks to the work of Roger Williams School of Law professor Carl T. Bogus. In a 1998 law-review article based on a close analysis of James Madison’s original writings, Bogus explained the South’s obsession with militias during the ratification fights over the Constitution. “The militia remained the principal means of protecting the social order and preserving white control over an enormous black population,” Bogus writes. “Anything that might weaken this system presented the gravest of threats.” He goes on to document how anti-Federalists Patrick Henry and George Mason used the fear of slave rebellions as a way of drumming up opposition to the Constitution and how Madison eventually deployed the promise of the Second Amendment to placate Virginians and win their support for ratification.

An inalienable right (Carl T. Bogus, March 18, 2008 , Washington Times)

Why guarantee a right to keep and bear arms within the government-regulated militia? The Constitution placed the militia under joint control of the federal and state governments. Previously, militia had been exclusively under state control. Southern anti-Federalists complained that the Constitution gave Congress the sole authority to arm the militia. Suppose, they asked, Congress did not do so, whether deliberately or from neglect? This raised two fears. One was that Congress would increasingly rely on a standing army, which made some nervous. The other was that without armed militia, the South would be vulnerable to slave revolts. Collective rights advocates believe the Second Amendment was written to ensure that the militia could always be armed, if not by Congress then by the states or the people themselves. [...]

To traditional conservatives, the idea that people should be armed to go to war with their own government is anathema. The father of traditional conservatism, Edmund Burke, railed against the French Revolution, in which the people took up arms against the government. Burke knew that once the rule of law was overthrown, tyranny writ large would be the people themselves. Long before the guillotine had chopped off a single head, Burke foresaw the chaos and blood, and nearly a decade before Napoleon's coup d'etat, he predicted that a charismatic military despot would rise to power. Traditional conservatives (and most liberals) believe the bulwarks against tyranny are constitutional democracy, separation of powers, an independent judiciary, freedom of speech and press — in short, not guns but the Constitution.

Do we place our faith in law or guns? (Carl T. Bogus, 12/04/07, Providence Journal)

To understand what’s at stake, it helps to consider the differences between the American and French revolutions. Notwithstanding the oxymoronic sound of it, America’s break with England was a conservative revolution. Americans did not seek to radically alter their society. They were not fundamentally suspicious of government; they believed government was necessary to secure liberty. Nor were they even opposed to the British form of government, though they devised ways to improve upon it. They believed England’s government failed them because they were unrepresented in Parliament.

Americans undertook a revolution to preserve more than to destroy. Even though they went to war to secure independence, Americans never lost faith in ordered liberty. By contrast, as historian William Doyle puts it: “The initial impulse of the French Revolution was destructive. The revolutionaries wanted to abolish . . . the old or former order, the ancien rÉgime.” French revolutionaries sought liberty through violence — and came to romanticize violence. Some 16,000 were guillotined or otherwise executed during the Terror; another 150,000 died in factional fighting. [...]

In 1786, Shays Rebellion broke out in western Massachusetts. Complaining that the government had become tyrannical because courts were permitting creditors to seize their property to satisfy delinquent debts, a thousand small farmers and shop owners — armed with muskets — closed the courts and began to threaten the state government. Thomas Jefferson, then ambassador to France on the eve of the French Revolution, was momentarily swept away. In a letter to Madison, Jefferson remarked that “a little rebellion now and then is a good thing.”

Madison would have none of it. In his reply, Madison called Shays Rebellion “treason.” Massachusetts Gov. John Hancock raised an army to crush the rebellion. His action was endorsed not only by Madison but by Samuel Adams, John Jay, George Washington, Benjamin Franklin, and John Marshall.

In the Whiskey Rebellion of 1794, backcountry farmers in Pennsylvania and Kentucky threatened tax collectors and otherwise used intimidation to obstruct collection of a federal tax on whiskey. They carried muskets and marched as militia under banners proclaiming “Liberty and Equality” and other slogans of the French Revolution. Washington said allowing such conduct would bring an “end to our Constitution & laws,” and he personally led 12,000 troops to extinguish the rebellion.

The Constitution is more than a legal document; it is the scripture of American political theology. The interpretation of the Second Amendment is about more than the government’s authority to regulate guns. It involves whether we choose to place our ultimate faith in constitutional structure or in guns.

...if the men gathered to dispose of the feeble Articles and adopt the stronger Constitution, in the wake of armed rebellions, included in same a provision that made it impossible for a militia to disarm a rabble.

MORE:
-The Most Mysterious Right: a review of Out of Range by Mark V. Tushnet (Cass R. Sunstein, November 12, 2007, New Republic)

Suppose that we are "textualists," in the sense that we believe that the Constitution must be construed in accordance with the natural meaning of its words. Honest textualists will have to agree that the Second Amendment is ambiguous, and that it could plausibly be interpreted in different ways. Stare at the words all you like, and you will hardly be able to be certain about which interpretation to choose. The legal scholar William Van Alstyne got it exactly right: "no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading."

Many textualists are also originalists, in the sense that they believe that the meaning of the text is settled by the original understanding of those who ratified it. Originalists would want to ascertain what the meaning of the Second Amendment was in the latter part of the eighteenth century. Was it understood to create individual rights or not? If it was understood to create individual rights, what are the permissible limits on those rights? Originalists would find the central interpretive issue easy if, at the time of ratification, everyone understood the Second Amendment to create an individual right to have guns. The issue would be equally easy if the words "well regulated militia" were understood as a qualification of the right, and if the Second Amendment were universally understood, in its context, to be an effort not to protect private gun owners but to immunize state militias from federal abolition. Originalists would also be interested in seeing if some other interpretation not immediately obvious to modern readers turned out to be the dominant one at the time. [...]

But to explore the original understanding of the Second Amendment is to enter an altogether different nation, whose central preoccupations were not at all like our own. In the founding era, many people were fearful of a standing army, and that fear was closely entangled with their support for the right to keep and bear arms. Indeed, it was the anti-Federalists-- skeptics about the proposed Constitution-- who were most insistent on the importance of the right to bear arms as a way of protecting state militias and thus checking the national government.

Some of those who wrote and endorsed the Constitution were highly ambivalent about those militias, and favored instead a national force, even a standing army. Charles Pinckney of South Carolina went so far as to say that he had little "faith in the militia." The Constitution itself represented a compromise between national and state control, and the document's advocates argued that the anti-Federalists were needlessly worried. In an important passage in The Federalist Papers, Madison argued that the fear of a standing army was baseless, on the ground that any such army would be badly outnumbered by "a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence." This passage is difficult to understand today. It is extremely hard to think our way back into a world in which standing armies seem a major threat to liberty and in which state militias are an indispensable safeguard.

Of course we have a National Guard, and states continue to authorize militias. About half of the states even maintain militias. But contemporary state militias are marginal institutions. (Do you know anyone who is in one? Do you know if your state has one?) No one thinks of them as important safeguards against the United States Army. In his impressive and illuminating book A Well- Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, the historian Saul Cornell urges that if we really want to be faithful to the original understanding, we would have to recreate "the world of the minuteman," a "nightmare" in which states would require all Americans "to receive firearms training" and "to purchase their own military-style assault weapons."

To appreciate the centrality of state militias to the Second Amendment, consider an early draft of the amendment written by Madison: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." And to see just how radically the nation has changed, pause over this question: if contemporary Americans were writing a new constitution, would any sane person suggest this language? Sure, we could imagine a proposed "right to keep and bear arms," but what are the rest of the words doing? Madison's draft is unmistakably focused on the military; without that focus, it would be senseless to follow the "right to keep and bear arms" with an exemption for those with religious scruples. If the ratified Second Amendment is substantively identical to Madison's draft, its core function might be (as suggested by Jack Rakove) merely to affirm "the essential proposition--or commonplace--that liberty fared better when republican polities relied upon a militia of citizen-soldiers for their defense, rather than risk the dire consequences of sustaining a permanent military establishment." Thus in the debate in the House of Representatives over what became the Second Amendment, Elbridge Gerry asked, "What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."

Saul Cornell concludes that the "original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their obligation to participate in a well-regulated militia." And indeed, the very distinction between an "individual right" and a "collective right" seems foreign to the goals of those who ratified the Second Amendment. One of their central purposes was to declare a civic right that would also be part of a civic responsibility, founded in republican goals and connecting the role of citizen with the role of soldier. The anti-Federalists lost the key arguments, but they did think that the Second Amendment ensured that states could resist the national government, and this checking function did play a role in the founding debates.

Posted by Orrin Judd at March 20, 2008 6:59 PM