May 29, 2014

ORIGINALISM:

How the NRA Rewrote the Second Amendment : The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here's how it happened. (MICHAEL WALDMAN, May 19, 2014, Politico)

The Second Amendment consists of just one sentence: "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses, and politicians routinely declare themselves to be its "strong supporters." But in the grand sweep of American history, this sentence has never been among the most prominent constitutional provisions. In fact, for two centuries it was largely ignored.

The amendment grew out of the political tumult surrounding the drafting of the Constitution, which was done in secret by a group of mostly young men, many of whom had served together in the Continental Army. Having seen the chaos and mob violence that followed the Revolution, these "Federalists" feared the consequences of a weak central authority. They produced a charter that shifted power--at the time in the hands of the states--to a new national government.

"Anti-Federalists" opposed this new Constitution. The foes worried, among other things, that the new government would establish a "standing army" of professional soldiers and would disarm the 13 state militias, made up of part-time citizen-soldiers and revered as bulwarks against tyranny. These militias were the product of a world of civic duty and governmental compulsion utterly alien to us today. Every white man age 16 to 60 was enrolled. He was actually required to own--and bring--a musket or other military weapon.

On June 8, 1789, James Madison--an ardent Federalist who had won election to Congress only after agreeing to push for changes to the newly ratified Constitution--proposed 17 amendments on topics ranging from the size of congressional districts to legislative pay to the right to religious freedom. One addressed the "well regulated militia" and the right "to keep and bear arms." We don't really know what he meant by it. At the time, Americans expected to be able to own guns, a legacy of English common law and rights. But the overwhelming use of the phrase "bear arms" in those days referred to military activities.

There is not a single word about an individual's right to a gun for self-defense or recreation in Madison's notes from the Constitutional Convention. Nor was it mentioned, with a few scattered exceptions, in the records of the ratification debates in the states. Nor did the U.S. House of Representatives discuss the topic as it marked up the Bill of Rights. In fact, the original version passed by the House included a conscientious objector provision. "A well regulated militia," it explained, "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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Though state militias eventually dissolved, for two centuries we had guns (plenty!) and we had gun laws in towns and states, governing everything from where gunpowder could be stored to who could carry a weapon--and courts overwhelmingly upheld these restrictions. Gun rights and gun control were seen as going hand in hand.

The Constitution enshrines liberty, not freedom. Posted by at May 29, 2014 1:24 PM
  
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