Second Amendment reality

Garrett Epps with far and away one of the better pieces I’ve read on the 2nd Amendment in a while.  Strongly asserts some important facts that are all too readily ignored in the current political debate and makes a strong case for a more sensible constitutional interpretation:

The courts have not, to date, interpreted the Second Amendment beyond the right of (in Stephens’s phrase) “owning a handgun for self-defense,” and, in fact, of owning that handgun in the home. “[W]e hold,” the Court wrote in Heller v. District of Columbia, “that [D.C.’s] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Justice Scalia’s opinion set out careful limits:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

So throwing up our hands and proclaiming that we can’t move forward without a “constitutional fix” is a flawed response; so is responding to gun-control proposals with outlandish claims of constitutional protection. We have the Second Amendment; rather than engage in loose talk, we should look at its text carefully…

That contextual reading is quite enlightening; it strongly suggests to me that the main—indeed, almost exclusive—purpose of the amendment was, in fact, to protect the rights of states to maintain and arm militias. There’s certainly enough evidence to support an argument for some reference to personal possession—but noconvincing proof that personal possession was the main focus, or that personal possession was intended to be unqualified.

That reading makes sense in a larger context—that of the constitutional situation at the time of the Philadelphia Convention. Of all the changes the new Constitution made in the relations of state and nation, the new central government’s arrogation of power over the militia was the most radical single feature of the new system…

All told [under the Articles], the arms and the military power remained solidly in state hands, with the confederation government taking over only in the direst circumstances, and after humbly asking the states for permission.

In the Constitution of 1787, by contrast, the federal government would control virtually every aspect of war, peace, and military structure. The new Congress could declare war, raise an army, or both, by a bare majority and without consulting the states; Congress was in charge of training and arming the state militias, and could call the militia into service without state permission or even state consultation…

All told, the text lays out a stunning power grab. To much of the revolutionary generation, a standing army was the mortal enemy of freedom and self-government. Those ratifying the Constitution had vivid memories of red-clad professional soldiers—some speaking German—swarming ashore to enforce British tax laws, and then to try to crush the Revolution. Now a new government—without so much as saying “by your leave”—could create such a force at pleasure, and send it, and their own militias, to crush any state that did not obey federal ukase. That must have raised hackles from Lexington to Savannah…

That’s the context. To me it suggests that, in adopting what became the Second Amendment, members of Congress were attempting to reassure the states that they could retain their militias and that Congress could not disarm them. Maybe there was a subsidiary right to bear arms; but the militia is the main thing the Constitution revamped, and the militia is what the Amendment talks about.

I’ve devoted years of my life to studying such ideas as the “original understanding” or “original public meaning” of constitutional provisions. No matter what anyone tells you, no one (and I certainly include myself) can really know the single meaning of any part of the Constitution at the time it was adopted.

Anyone who claims that the text of the amendment is “plain” has a heavy burden to carry. The burden is even heavier if an advocate argues that the Second Amendment was understood to upend laws against concealed carry or dangerous weapons—both of which were in force in many parts of the country long after it was adopted.

Anyway, lots of good stuff in here.  And lots of good ammunition (sorry, couldn’t resist) should you ever get in a debate about the 2nd amendment.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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