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The Second Amendment and the militia

Jason J. Keyes happened upon my blog post "Grammar, guns and the Constitution" * and sent me this response (reprinted with permission}:

Like much else in the Second Amendment debates, it seems to me that the primary question of the Second Amendment is ignored.

The Second Amendment was written with a specific problem in mind: the objection of Anti-Federalists to Congress's powers over the militia. They were not in contention over the ability or lack thereof of the new national government to regulate firearms ownership. But the states having to cede power over their militias was a serious problem. Madison was the chief author of the Bill of Rights, including the Second Amendment. He was also one of the primary proponents of the Constitution. He didn't want to change it, but he had promised in his campaign to be in the First Congress to include a Bill of Rights to allay the fears of his constituents (and others) over some of the provisions of the new Constitution.

So he had a problem. He didn't want to detract from Congress's militia powers, but he wanted to ensure the states could not be deprived of their militias. The solution he struck upon was protecting the rights of individuals to own arms, thus leaving Congress free to activate the militia to Federal service while the states could call upon their armed citizenry to fill the ranks of the militiamen who had been activated. The militia weren't required to keep expensive, crew-served weapons. The weapons protected by the Second Amendment are, as U.S. v. Miller noted, such weapons as were in common use at the time.

It seems to me that we cannot understand what the purpose of the Second Amendment was without understanding the argument that the Second Amendment was intended to resolve. Very little of the argument ever seems to address that.

It should not come as news to anyone who has read about the history of the adoption of the Constitution and the politics of the early Republic that one of the principal concerns of the Founders was to establish a durable balance between the powers of the states and the powers of the federal government — what the authors of the Federalist referred to as “the general government.” Yes, the Bill of Rights is insistent about individual rights, but it does not exclude the state/federal concerns.

Historical interpretations such as Mr. Keyes’ also serve to point out some troublesome aspects of the “original intent” argument — that our understanding of the Constitution should be limited to what the Founders originally intended. It sounds simple and plausible, until one looks more closely.

How to see the Constitution, the product of a series of compromises, as representing a unified intention is troublesome. The Founders wanted to establish a more stable government than the freed colonies had experienced under the Articles of Confederation, and they were suspicion of too much concentration of power in any one sector of government, but those are general principles that could be implemented and interpreted in various ways.

For that matter, what are we to think of the intentions of individual Founders? Was Mr. Madison’s “original intent” clearer when he combined with Mr. Hamilton to urge a stronger general government in the Federalist, or when he later combined with Mr. Jefferson to undermine Mr. Hamilton’s policies in that government?

The obvious thing to do is to understand what the language of the text says (the only point I was trying to make in the original post), how that language was understood in the historical context of its writing, and how whatever fundamental principle that can be extracted from the text can be most appropriately applied to today’s circumstances.

But if it’s original intent you want, I can offer a gloss on the language of the Second Amendment, as written: You have the right as an individual to possess firearms, and you are consequently willing to turn out once a month or so for target practice and military drill under the supervision of an officer of the state who knows who you are, what arms you possess, and what skill you demonstrated in using them. But then, I’m a grammarian, not a lawyer or a constitutional scholar.

If you have something informed or reasonable to say, please feel welcome to comment. If, however, you merely share the semi-literate and abusive sentiments reflected in the comments to the previous posts, please consider that your views have already been fully expressed.

 

* The original post was followed by two more on the same subject, “Second that amendment” and “Last Volley.”

 

 

Posted by John McIntyre at 11:48 AM | | Comments (9)
        

Comments

Slow news day?
Suddenly a glutton for punishment? Whatever could have motivated you to bring this up again?

tsk tsk. ;)

The scarier one for me (of course) is the opening two clauses of the First Amendment which, interestingly, doesn't seem to garner the attention of many in the same crowd that wants to read the Second Amendment literally.

Jason Keyes makes the point that the anti-federalists wanted to preserve the state militia system of security. And, clearly enough,the Second Amendment was intended as protection against the abuse of that system by the federal government.

It seems unrealistic to believe that James Madison would have drafted the amendment intending to protect an individual right to keep and bear arms for persons who were not capable of bearing arms (or not able to bear arms, to use Jefferson's words).

It has been argued that to "bear arms" in the Second Amendment means simply to carry arms. But when the amendment was written, the terms “capable of bearing arms” and “able to bear arms” were synonyms for “capable of militia service.” In republican philosophy the militia in America consisted of the whole body of the people capable of bearing arms. In military context such as that of the Second Amendment, Madison and others referred to that body simply as “the people.”

In early America, if you weren’t capable of bearing arms you weren’t militia material. Each state specified its own physical requirements and age limits in qualifying those who were capable of bearing arms and therefore liable for militia service. The age range could be as great as 16 to 60 but was more often 18 to 45.

Those persons capable of bearing arms, or “able to bear arms” as Jefferson put it, constituted a large percentage of the population – but there were not nearly as many of them as there were individuals who were able to carry or wear arms.

In 1788, at Virginia’s convention on ratification of the Constitution, Governor Randolph said that the other 12 states had a total of “upwards of 330,000 men capable of bearing arms.” That would have been approximately one person in every eight or nine out of the total population of the 12 states.

In 1811, long after the federal government had enacted a law setting the militia age range for all states at 18 to 45, Jefferson wrote in his famous letter to Destutt de Tracy that the militia of each state of the Union consisted of “every man in it able to bear arms.” Again, men of ages 18 to 45 constituted a sizable body of persons able to bear arms, but obviously not nearly the total of those able to carry or wear arms.

The Second Amendment addresses in words the need for a free state to have a well regulated militia. It says nothing at all about the need of arms by individuals for self-defense, hunting, or insurrection. It seems quite clear that the Framers intended the Second Amendment to guarantee the right of the people to keep and bear arms as a well regulated militia -- and to be able to do so without infringement from the federal government.

Jack Wever's comments are borne out by the fact that the USA did not have a navy at the time the Constitution was ratified; by the fact that military officers as late as the War of 1812 were not necessarily professionals; that the militia turned out (and typically was routed) during that war; and that West Point, for training professional officers, was not established until well into the 1800s.

The Founders clearly believed in the ideal of the "citizen soldier," having lived and in many cases served as militia through the French-Indian War and the American Revolution.

And there's the "Society of the Cincinnatus" post-Revolution, which glorified, again, the citizen-soldier.

Events outpaced the ideal, however.

"The Second Amendment addresses in words the need for a free state to have a well regulated militia. It says nothing at all about the need of arms by individuals for self-defense, hunting, or insurrection. It seems quite clear that the Framers intended the Second Amendment to guarantee the right of the people to keep and bear arms as a well regulated militia -- and to be able to do so without infringement from the federal government."

Which raises the question of what they presumed to be "self evident" and of such common practice that it didn't warrant space in the document.

Even if the sole purpose of the amendment was to guarantee that citizens could keep arms for the purposes of serving in a militia (and you pretty much have to ignore the Federalist Papers to arrive at this conclusion), then citizens still have the right to keep arms because of the very nature of a militia, i.e. a group of non-soldiers who can be formed ad-hoc and who report to the states as opposed to the Federal government.

By the time of the War of 1812, the U.S. Army had developed a significant cadre of professional officers. West Point was found 16 March 1802, which is hardly "well into the 1800s."

Back to the right to bear arms for a moment and ignoring the parsing of the Constitution, the Bill of Rights and the Federalist papers..

"Gun Control" is a euphemism used by those who want to prevent anyone from having guns.

It has been repeatedly endlessly that the effect of gun "control" legislation falls most heavily on the law-abiding.

Criminals are not interested in "control" of any kind, especially guns.

We all know about gunplay in Baltimore and other cities, including New York and Washington, DC, which have very strict "gun control" laws.

Somehow, though, they don't really seem to be very effective.

My suggestion is that every time some high-minded legislator at any level wants to present yet another "gun control" bill, he or she be required to submit a companion "criminal control" bill,
with no provision for plea bargaining away the penalty.

Another way that might ease the path of those striving to disarm everyone would be to make a clear distinction between firearms as weapons and firearms as collectible items.

A major local antique arms show has a strict cut-off (1898) on guns that may be displayed each year.

Police make no distinction and grab anything that looks like a weapon. I know of cases where 17th and 18th Century firearms have been confiscated.

Perhaps if the "gun control" advocates would lose their ideology and apply a little common sense they might defuse some of the bitter opposition to their efforts -- in the interest of public safety.

˙spɹɐʍʞɔɐq sı ǝɹǝɥ ɔıƃoן ǝɥʇ ɟo ǝɯos ʞuıɥʇ ı

Guns...mmmm. No, wait. Wrong blog. Sorry.

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About John McIntyre
John McIntyre, mild-mannered editor for a great metropolitan newspaper, has fussed over writers’ work, to sporadic expressions of gratitude, for thirty years. He is The Sun’s night content production manager and former head of its copy desk. He also teaches editing at Loyola University Maryland. A former president of the American Copy Editors Society, a native of Kentucky, a graduate of Michigan State and Syracuse, and a moderate prescriptivist, he writes about language, journalism, and arbitrarily chosen topics. If you are inspired by a spirit of contradiction, comment on the posts or write to him at john.mcintyre@baltsun.com.
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