Human history becomes more and more a race between education and catastrophe.

Posts tagged “Second Amendment

NOTES ON: The 2nd Amendment- The Right to Bear Arms

It’s important to understand the the Founding Fathers were a bunch of different people with different opinions (see James Madison’s notes on the Constitutional Convention for lots of fun debates with the Founding Fathers)

  • In an 18th-century context, it was about having citizen militias as opposed to standing armies.
    • It’s really important to recognize that the notion of a standing army was a massive bugbear for 18th-century liberalist positions, and as many of the colonists had migrated to the new world to escape such European conditions as the New Model Army in the middle decades of the 17th century, or James II’s standing army in the 1680s, the idea was to not let that kind of shit happen anymore.
    • It’s the same idea that drives the amendment about having to quarter troops: that a standing army is a threat to a democratic government and the freedoms of the people who comprise it.

[All common law countries with written constitutions have two primary sources of constitutional law: the text itself and judicial interpretation of the text (jurisprudence). And since the text itself is very hard to change (in the US it requires agreement from 75% of the states), most changes in constitutional law come from evolution of the jurisprudence.

In the US, the 2nd amendment is old and poorly worded and the states are in disagreement, so it falls to the courts to interpret (set?) the law.

Now there are lots of philosophies on constitutional interpretation, but some key members of the Supreme court are enamored with original-ism (cough Scalia cough), which is the thought that the constitution should be interpreted according to the intent of the drafters.

Now lots of people think this is ridiculous because the drafters had no concept of iron birds or assault rifles or countless other factors that are extremely relevant to the discussion. I tend to agree but original-ism has its philosophical benefits: it puts the onus of constitutional developments on elected bodies and it has a certain rigidity to it that some people like (flexible law is no law at all as they say).

But as long the states cannot agree on a redraft or the USSC still clings to original-ism, then the intent of the founders will continue to matter.]

  • Originally, the Second Amendment was viewed much more as a collective right. The important thing was that individuals be armed as part of a group responsibility. IOW, you needed to have a gun in case you were needed to help overthrow a tyrannical government.

  • After the Civil War, the whole discussion about collective versus individual rights changed, and having a gun became much more about self defense. This was in direct response to the newly Reconstructed South.

  • For those men who were allowed to own guns, the Founders had their own version of the “individual mandate” that has proved so controversial in President Obama’s health-care-reform law: they required the purchase of guns. A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters—where their guns would be inspected and, yes, registered on public rolls.

[As a note, even if one takes the position that it is the collective right for the militia rather than the individual right, Section 313 Title 32 states that every man 17-64 is a part of the unorganized militia.]

  • Now, gun-rights activists seem to be arguing that restrictive gun laws passed by Hitler were the impetus to his rise. That’s completely baseless as the Weapons Act was passed five years after Hitler’s ascension to power. Moreover, Hitler’s repressive tactics decimated the liberal ranks of Germany’s political system before the Weapons Act.

  • In the US, a lot of the first gun restrictions got passed in the post-reconstruction south explicitly to disarm blacks as part of the establishment of Jim Crow.

  • Loaded open carry was specifically banned in California after the Black Panthers marched on the state capitol building in 1968. They couldn’t charge them with anything so it was made illegal the next day.

  • There weren’t really gun control laws as we know them during the 18th century, and especially in New England, lots of folks served in the colonial militias. I imagine gun ownership became more common the further away from the big cities you went, both for making a living and because American settlers were terrified of Native American raids.

  • As for JFK, his assassination was added to assassinations of MLK, Malcom X, and RFK and was part of the impetus for the Gun Control Act of 1968, which, among other things, effectively banned direct mail order of firearms to non-licensed persons, which is how Oswald got his rifle.

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The added comma in the 2nd amendment:

What is it with 18th century punctuation and grammar?

Punctuation and spelling were a little looser then, and more importantly, some words in the 18th century do NOT mean what we think they mean today. People who posit that any historical document (whether something as well known as the Constitution to a simple piece of correspondence) is absolutely transparent to the modern reader needs to check their ego at the door. During my career as a historian I have made numerous errors of interpretation — and I am sure I am not done making them — because I misconstrued the use of a phrase or was unaware of how a phrase at a particular time was loaded with specific political, religious, or social meaning. Consider the history of words like terrific orenthusiast, or how certain terms like “gold” and “silver” came to take on special political meanings in the 19th century the same way that “life” and “choice” are — pardon the pun — pregnant with meaning today.

The truth is there may not have been universal agreement on the punctuation (or even the actual meaning) of all of the Constitution, much less its later amendments. Consider how both the Federalists and Antifederalists made counter charges as to what the Constitution would actually mean for a new America. Even the Federalist papers themselves are an interesting case in point — these documents, which have been cited over three hundred time sin court cases to explain what the constitution “actually meant,” were at their heart propaganda pieces to sell the Constitution on ratification. This does not mean that the Federalist papers are flim-flam, but some caution must be used: Sometimes the Federalist paper argue a very populist notion of the rights of the people (and mind you, this is before a bill of rights is on the table, at first), even though the top three types of positions in the new government (President, Senators, and Supreme Court Justices) would not be directly elected by the people.

A Hamiltonian view of what the Constitution meant, what it SHOULD have contained, and what it allowed is vastly different form what others such as Jefferson interpreted, and indeed formed a crux of the political discussion of the early republic.

So — and this is a roundabout way of getting back to the grammar discussion — yes, there is more than one way to legitimately parse the Second Amendment. But the best answer for what does it mean to have a “militia” or what kinds of rights does the second amendment refer to in reference to “arms”, grammar is probably not our most utilitarian friend. I discussed in the most recent second amendment thread the problem with the definition of militia. The majority opinion written by the conservative wing of the modern court in Heller, relied upon a definition of militia that chooses to both very broadly accept certain historical evidence (who are the people who make up the militia) but very narrowly construe the historical existence of the militia as being under control of the state governments. (One historical counterargument to Heller’s interpretation is that the militia as defined in Section I does indeed already exist, but were well-regulated meaning STATE CONTROLLED by the governor, which had been the case during the entire colonial period.)

The point is that grammar alone does not get us to “what does the second amendment really mean?” Heller is simply the most modern example of the court looking at historical and legal evidence and choosing to accept some types of evidence and discard others, which ultimately all rational people have to do when weighing teh evidence of what “the founders” meant. the problem is there is no one universal founder who agreed upon all things or set a specific set of definitions.

One last side note on historical grammar and punctuation and amendments: This problem with Amendments having various punctuation (or spellings) is not confined to this time period. There is a small bevvy of lunatic right-wing antitax zealots who have argued that the 16th Amendment was never properly ratified. Their argument boils down to that when the states sent back their ratification notices, some states had different capitalization, or a punctuation mark, or in one case a word that was plural was written in the singular, and that therefore they never really “ratified” the amendment. To no one’s surprise, these arguments have been dismissed by the courts, and now with some prejudice, as the claims have been labeled not only false but fraudulent by courts.