2nd Amendment, Original Intent, and Disregard of the Constitution
Posted by
Kevin
Publius has a post discussing theories of constitutional interpretation. This, of course, means that a fight (but since its Obsidian Wings, it’s a very genteel, intelligent fight) over original intnet and its imitators has broken out. My dislike original intent as an idea is pretty well documented, so I wont really go back over those details. But on thing did strike me reading the comments is just how much disregard for the words of the Constitution OI entails, at least when discussing the 2nd Amendment.
Let me preface this was saying the obvious: I am not a law professor or a legal scholar. I am taking the positions of the commentators in the OW thread as a reasonable approximation of how OI is understood in the everyday world. I may be doing the theory a disservice by doing so, but I still the discussion is worth having becasue, as I said, I don’t think it unreasonable to discuss the way the theory is understood even if that general understanding does not map precisely to the academic understanding of the theory.
The main thrust of Publius’ post is about how he thinks textual ambiguities should be handled with the 2nd Amendment as a good example of such ambiguity in the Constitution. This, of course, lead to a discussion about why or why not original intent is the best method of resolving such ambiguities. the argument is, in short, that looking at what the founders meant when they wrote the words was the best way to determine that the text in question should mean. Put aside for a moment whether or not that such an understanding is reasonably possible, and think about the implications of that position. The Founding Fathers were not, as a general rule, stupid men. But OI seems to assume that they were. the ambiguity in the Constitution is there becasue the Founding Fathers put it there, deliberately. Every inch of that document was haggled over and written and rewritten many times until langauea that could be accpeted by tthe country was hit upon. That language, that ambiguity, was put there on purpose. They could not come to a clear agreement, a clear understanding, so they wrote words that paper-overred the differences and they did so consciously.
OI proponents seems to be saying, “well, never mind that. let’s see what they really meant!” What they really meant is right there in the constitution: we could not come t a clear agreement on this, so here is the only compromise that would work. There very existence of textual ambiguity is, in many if not all cases, is a direct refutation of the prime notion behind original intent: the Founders did not have a clear positioned accepted by all of them and so any attempt to find such a position to settle questions of textual ambiguity is, by definition, flawed. The best you can do is something like “well a majority thought …” but that avoids the question. if the majority really thought X, then why is the text not written that way? All that version of OI is doing is refighting the same battles that picking which historical faction they wish had won.
In addition to all the other problems with OI, I think that attitude does a great disservice to the Constitution. The Founding Fathers made many compromises and deliberately left ambiguous terms in the Constitution. They trusted their descendants to interpret those terms wisely. They left room for society to change, grow and come to consensus on issues that they themselves could not right in the Constitution. Going back to them to settle disputes they they themselves chose not to settle when they wrote the document seems to me to be deliberately turning our back on the Constitution itself.
I completed agree with your statements. I have written an article dealing with the linguistical meaning of the Second Amendment, not trying to discern what was intended or how it should apply to us, but rather attempt to extrapolate the meaning of the text based on its own merits (see here: http://www.theconstitutionalist.us/index.php/editorial/understanding/the-second-amendment.html).
However, one thing that I don’t see discussed very much (if at all) is the original premise what rights are. In fact, many of the founding fathers were opposed to even establishing a Bill of Rights, as they felt codifying certain rights would eventually limit future generations to only those rights. The Constitution and the Bill of Rights must be read within context of these definitions.
Rights are understood to be anything that does not:
1) harm or take away property of others (property being defined as self, owned objects, and intellect).
2) violate anyone else’s rights.
3) rights only apply to individuals. Privileges apply to legal entities (companies) and government entities.
For example, I have every right to use a gun, as long as I don’t harm others, or disregard any of their rights. For example, I may not fire a projectile across their property without their permission.
Once this concept of rights is understood, the entire Bill of Rights becomes somewhat moot, as it is just a reiteration of our most important and basic rights.
Regards,
Mike Bronner
Comment 3/27/2008
Except that the collective right model was fashioned almost entirely from whole cloth in the 1900s (the previous anti-RKBA Buzzard decision found neither an individual nor collective right in the state constitution, not a collective right as often alleged), and wasn’t an issue at debate in time of the actual framers. It wouldn’t have even made sense to them, as the statutory definition of militia included every white citizen male over the age of 18 and under the age of 45.
Comment 3/27/2008
Nice piece Kevin.
Gatt, how could statutory definitions exist at the time of the writing of the constitution that would be applicable to the constitution itself? I could be wrong about this, don’t really know. Was there a body of law passed by legislature in force before the constitution?
Comment 3/27/2008
Hi Ted,
There is indeed a piece of legislature enacted shortly after the establishment of the constitution that is specific to the definition of “militia”, the Militia Act of 1792 (http://www.reference.com/browse/wiki/Militia_Act_of_1792); it can be safely assumed that its definition is consistent with that of the Constitution because it was enacted just 4 years after the constitution was ratified, and by many of the same politicians (second Congress).
Comment 3/27/2008
One thing I forgot to add is that the Bill of Rights was ratified and introduced as the first ten amendments in 1791, so it is indeed very likely that these two enactments were being worked on during the same time.
Your point is well taken, though, I don’t know of any PRE-EXISTING legislation that would define militia in the American colonies (I don’t think that we can assume to use the British meaning of the word during that time period, as it had different connotations).
Comment 3/27/2008
In addition to the already-mentioned militia act, militias were explicitly recognized by the Articles of Confederation. While that particularly text is no longer binding, it was binding up til the time that the Constitution was fully ratified. It relies on the states for matters of defining precisely the militia.
Yet, oddly, full descriptions of those laws tended to be pretty damned similar to the eventual Militia Act’s own first iteration. There were some variations — Pennsylvania, for example, didn’t even have a militia law until after the Revolutionary war itself started — but they’re pretty clearly favorable toward the Militia Acts.
Comment 3/27/2008
Thanks, gattsuru! I’ll include that in my research going forward. I hadn’t thought to look at the state level for definitions and legislature, but it makes perfect sense, since each state was a colony unto itself, and thus had its own laws independent of the other states.
Comment 3/27/2008
So the framers understanding and intent was that every able bodied white male between 18 and 45 would be a member of their home state’s militia.
It’s interesting how quaint that first half of the sentence that is the Second Amendment now seems.
Comment 3/27/2008
Ted: indeed. And the Militia Act of 1792 also explicitly clarifies that each man must provide their own firearm with initial ammunition. In order to enable people to fulfill this duty, the Second Ammendment reiterates their right to gun ownership (government has a habit of ignoring rights that are not evident, or explicitly expressed).
Also, militias were vital to the very freedom of the American colonies, and would not have been possible if the English Crown had prohibited gun ownership. It would seem then, that the Second Amendment is an insurance policy taken out with the American Public, the People, to give them a means to defend themselves against a burdensome government.
I agree with the expressed findings in this post by Kevin, however, it is unconscionable to throw intent out with the bath water, so to speak; I do not agree that original intent is not even to be considered. Intent is always paramount to understanding, and if we discount the creators’ intent, then we loose a great deal of understanding. This holds true for everything in life, like art, literature, speeches, view points, opinions, and so forth.
I think through the discourse in these comments we have established a great deal of insight into what may have been original intent, as best we can with the information and history we have today.
Upon reading over the original post that Kevin has referenced, I find that the interpretation Publius presented lacks understanding of both the language, context, and purpose of the Constitution and the Bill of Rights (specifically the Second Amendment as discussed in that post).
Comment 3/27/2008
Ted, that’s still the law!
Comment 3/27/2008
gatt, so as a member of the militia, do you consider it your constitutional responsibility to own a musket? I mean, sure “it’s the law”, but it is also totally meaningless. At the start of WWII (I use that as an example due to the magnitude, but you can plug in any war or police action you choose), did the President mobilize the militias to defend the US? Seems to me, the military, including the National Guard, is something one voluntarily joins or is conscripted into. The idea that all able-bodied men are somehow obliged to do anything related to the military or defend the country (other than pay taxes) is quaint.
Comment 3/28/2008
Ted,
The idea that all able-bodied men are somehow obliged to do anything related to the military or defend the country (other than pay taxes) is quaint.
I have to disagree, but because of two specific words there: obliged and defend.
I think most people would very much find it the moral obligation of every capable person (the restriction to men is just sexism about who is capable) to materially assist in the event that the country is physically invaded and we actually go on the military defense.
The idea’s not quaint at all; it’s just been spun completely out of reality.
Comment 3/28/2008
Dan M, poor word choice on my part. I meant legally obliged. Better way to state it would have been “legally required”.
As to being physically invaded, modern weaponry renders quaint the concept that millions of citizens rallying to ward off some hostile invader. So your point, while valid, is conceptual in nature. That was not the case in the later 1700’s.
Comment 3/28/2008
I actually do own a firelock, as I would expect a fairly good number of gun owners and collectors do. While nowhere near as common as the percussion-cap based cartridges of modern day, they’re pretty useful if you live in particularly gun fearing-wussy populated areas. They’re simple to produce, unlikely to fall under the NFA (a real pita if you try to build a normal gun from the ground up), and can be rather entertaining. They’re not particularly effective in a fight, but there’s something about being excluded from the NFA’s limitation on width that’s attractive.
Moreover, that wouldn’t be a constitutional responsibility, just a statutory one. The Constitution doesn’t really apply responsibilities to individuals, only the governments, so I’m not sure there are really constitutional responsibilities as you speak of them in the first place. If you consider there to be a constitutional responsibility to public speech, religious or areligious behavior, public meetings, etc, then I guess you could put a responsibility toward gun ownership and enough practice and capability to be useful in a militia context. I see that as being good personal policy, but bad judicial construct, and certainly not supported by previous decisions or law.
I think you misunderstand the point of the militia. While, in rare circumstances, it would be called up for reasons of national defense, that was both a remarkably hard thing to do, and one that was meant to occur only when conventional methods were exhausted. Right now, the United States has more than enough conventional methods to deal with everything but a land war in Asia.
That wasn’t the common usage of the militia at the time. The common person was as much a part time police officer than anything else — rather important, if you remember that London didn’t have a public police department until the 1820s, and New York went without until 1844.
Given that citizen’s arrests still occur in modern times, that one might be a bit more useful a descriptor.
Comment 3/28/2008
you americans are weird. (this is one of the few remaining cases where i can still say “you americans” without including myself.)
i served in the conscripted military of my home country. hated it, but even as a stupid teenager, i did indeed understand that it was my obligation as a citizen to do something to help defend my country. maybe not necessarily armed service, but something, and the army would do well enough, i thought. yet over here, even a purely symbolic gesture like owning the tools you’d need if you ever were to join a “militia” which everybody knows will never actually be formed, seems to be too much to ask of some of you. why is that?
(i’m getting my U.S. citizenship fairly soon. guess i’ll have to think about a gun club membership and a cheap surplus rifle to practice with, just as a symbolic gesture of willingness, since i’m too old to register for the draft here. were i still young, i’d do that and call the gesture good enough, but…)
Comment 3/29/2008