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.