Monday, November 26, 2007

Bear Arms

Time for a rhetorical gunfight over the Second Amendment, which will be amusing because we get to watch the wanna-be punditry shoot itself in the foot over original intent and the Founders and the language whereby such intent might be discovered.

The dispute arises from the first four words of the Second Amendment, the full text of which reads: "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." If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a "well regulated militia" means.

Judge Silberman's opinion argued, with convincing historical evidence, that the "militia" the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation's defense might seem quaint. But at stake is whether the "militia" of the Second Amendment is some small, discreet group of people acting under government control, or all of us.

The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort--an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort.

What's missing in all that? In all the modern writing, the word "state" is used only in the sense of "the nation-state," meaning, essentially, "the federal government." Yet it is impossible to talk about the old militias without reference to the states, which authorized them and set such rules for them as were deemed necessary (and which varied widely from state to state), and offered them to federal service, fully formed, only in temporary emergencies.

The old middle, or buffer, of the federal system that we were bequeathed in 1787 has so far fallen out of memory that we write as if there never were such things as "states," or that "the United States," to the Founders, was a plural noun. The Bill of Rights was a set of chains that bound the federal government. Only.

The very idea that the federal government would claim such a right as deciding who in one state or another could and couldn't own a firearm would be a nightmare to the Founders. The argument made by Madison and others against a Bill of Rights was not that it put too much restriction on the federal authorities, but that it was dangerous to list powers the federal government did not have over citizens, because doing so could allow an interpretation of the Constitution that meant anything not on the list was allowed. The anti-Bill men preferred to leave the document such that any and every federal power not spelled out in the text was presumed forbidden. (The current 10th Amendment was meant to allay this fear.)

When Madison first began to compile a bill of rights, unwillingly, from the proposals that had been put forth, he included some provisions that also limited the powers of states. But these were dropped in the Senate. The federal government could do none of the things proscribed in the Bill of Rights. But the states could, and did. New England governments, for instance, continued to tax all their eligible citizens to pay for official state churches well into the 1800s. Many state constitutions therefore had their own version of a bill of rights, sometimes with a clause that mirrored the Second Amendment (a useful list of them is here).

Only after the Civil War destroyed the power of the states, and the courts began opening the Pandora's boxes of the Reconstruction amendments, did the ideas emerge that now govern total federal control over what states can and cannot allow their citizens to do.

Another good walk around the topic, from the same source as the above link, is here.

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The debate also is likely to turn on questions of wording of the amendment, and even punctuation. In which case, it would be pertinent to follow the trail of the wording as the bill made its way through Congress, and to compare it to other contemporary legislation on the topic. Which probably a lot of people won't do before they start writing.

The Founders, with so many lawyers among them, tended to be very careful in their grammar and punctuation. After the Constitution was put together in Philadelphia, but before it was signed, the Founders handed it to a Committee of Style to go over it with a fine comb and put all the grammatical fine points in order in the final document to be voted on. It was a serious matter, and the names on the committee included top dogs such as Gouverneur Morris, Hamilton, Madison, and Rufus King.

Morris, who did the writing for the committee, tried to pull a fast one and give the federal government the power to finance internal improvements, such as canals. Some delegates cherished this vision, but they knew the majority was against it. Morris attempted his trick in copying out Article 1, Section 8, delineating the powers of Congress. They were itemized in clauses, each clause set off by a semicolon.

Morris slipped a semicolon between "To lay and collect taxes, duties, imposts and excises" and "to pay the debts and provide for the common defense and general welfare." That turned the second phrase, meant as a delimiting clause to the first, into a power unto itself. It thus removed the limitation on the taxing power.

The impact of that doesn't seem so enormous today because we've essentially given federal government all the power Morris could have dreamed for it, and more. But then, it was a radical and horrifying notion. When the committee returned the document to the delegates, Roger Sherman of Connecticut spotted the trick and called the attention of the other delegates to the world-changing semicolon. A comma was restored in its place.

[The incident is described in Forrest McDonald, "Novus Ordo Seclorum," 1985, p. 264-5]