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Constitutional Originalism and the Second Amendment

By       Message Larry Butler       (Page 1 of 2 pages)     Permalink    (# of views)   No comments, In Series: Constitutional Originalism

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So far we've examined the concept of constitutional originalism [1], and how it's been hijacked by the radical right. Then we explored the Electoral College [2] in disturbing detail, and saw how it has been used to marginalize minorities and disenfranchise the majority. Then we considered free speech [3] and how the concept slowly evolved - then abruptly morphed to a new and insidious form in 2010.

Now let's examine the Second Amendment, which was itself made possible by Article V. It simply states, "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." What were they thinking?

LITERAL CONTEXT

Look first at context - a "Militia" in the absence of a standing federal army, provided for internal and external security. A "free State" clarified that a Militia is a creature of each of the thirteen States as constituted at the time, together with any admitted in the future as provided by Article IV Section 3. State Militias were explicitly placed under the ultimate authority of the President of the United States elsewhere in the Constitution - Article II, Section 2. Within the context of militias and states, the word "arms" clearly refers to weapons of war rather than hunting or sporting arms.

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HISTORICAL CONTEXT

The internal threats in 1789 included insurrections by slaves, natives, and enemies of the state such as Daniel Shays. Shays' Rebellion [4] was fresh in the memories of the framers - having been organized against economic injustices and culminating in a failed attempt to obtain the weapons at the armory in Springfield, Massachusetts. The framers could not have intended Daniel Shays and his gang to have easy access to weapons of war!

The greatest external threats were France and England, but the United States was not in a state of war. The Continental army was disbanded after the Revolutionary War, and standing army of the federal government was seen by the states to be a threat to liberty in times of peace. New Hampshire proposed in 1789 "That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress".." [5] Militias organized and regulated under the authority of each state were seen as the first and quickest defense pending the organization of a federal army.

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Virginia proposed in 1789 "That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial Law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State." [5]

The Militia Acts of 1792 [6] provided uniform requirements for state militias, including mandatory conscription of recruits who were required to supply their own small arms and ammunition. They also certified the authority of the President to call out state militias to put down insurrections - an authority exercised by President Washington to suppress the Whiskey Rebellion. The Militia Act of 1903 created the United States National Guard as a formal successor to state militias.

LIMITATIONS OF THE FRAMERS

What about the limitation of the framers? They clearly did not envision a time when "arms" would evolve into the terrifying weapons of mass destruction at our disposal today, and certainly would not have placed them in the hands of "the people" without controls. Had they imagined such weapons, they would have reconsidered the application of the term "infringed." Perhaps most importantly, the entire Bill of Rights was less a creature of the framers, and more a product of the States that demanded it and conditioned their ratification upon its acceptance by the constitutional convention. Although they ultimately compromised on the text, George Mason and John Madison were always divided in their views.

Beginning in the twentieth century, militias gained an entirely different identity. Today they consist of loosely organized, well-armed bands of men and women. The Southern Poverty Law Center tracks up to 300 such bands [7], keeping an eye on them because of their orientation and activities. Although they claim constitutional roots, these bands have no charter or any such authority from their states, even in the South. The Ku Klux Klan is typical of such bands at the local level, but is unique in its participation in the network with other units elsewhere. Occasionally these bands erupt in violence, as at Ruby Ridge and Waco, Texas. Such organizations were decidedly not envisioned by the Framers of the U.S. Constitution except with respect to their similarities to those involved in Shays' Rebellion.

So, what was the original intent of the Second Amendment? A thoughtful interpretation of the literal context, the historical context, and the framers' limitations inevitably leads us to the knowledge that it had nothing to do with hunting or sport, but rather weapons of war for organized defense in the hands of responsible authorities. And we can spot an internal contradiction when we realize the conflict between "shall not be infringed" and the rush to keep weapons away from Daniel Shays.

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Conservatives - self-identified constitutional originalists - claim that the Second Amendment applies to individuals and represents a guarantee that no regulation shall apply. Does this claim stand up to careful scrutiny, critical thinking, and common sense?

WINNERS AND LOSERS

Gun owners who claim that the Constitution guarantees their unlimited right benefit from the current interpretation of the Second Amendment. But does an analysis of the literal context, the historical context, and the limitations of the Framers support that interpretation? A purely originalist interpretation of the Second Amendment would guarantee the armaments of State militias, and they would not be limited in scope or power. But because state militias were displaced by the Militia Act of 1903, the protections of the Second Amendment clearly passed at that moment to the United States National Guard. That said, private unregulated gun ownership is promoted by the interpretation of the Second Amendment by self-identified constitutional originalists and their benefactors. If there is justification for the unregulated right of gun ownership it lies outside of any constitutional guarantee.

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Thirty five years as a small business consultant, CFO, and university educator specializing in quantitative business and economic modeling - a suite of experience now focused on economic inequality. Carefully attributed data, thoughtful (more...)
 

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