Tuesday, September 14, 2004

Since the assault weapons ban was allowed to expire last night, the subject of the 2nd amendment has been floating around again. Remarkably, in most articles that talk about the subject, it is assumed that the 2nd amendment was written and ratified as a specific protection of the individual’s right to keep and bear any type of “arm” that they want. Not many people in modern discussions of that amendment even call this into question. But as this account of the constitutional convention illustrates, the second amendment is not that clear cut.

It’s a long, academic article, but what issue worth getting to the heart of doesn’t ultimately lead to this? The gist of the argument begins here:

VIII. THE DEBATE IN CONGRESS AND THE LANGUAGE OF THE AMENDMENT (just copy the above phrase, then to ctrl+f, once on the page).

Some things I find noteworthy:

First, it explains to me why the Rehnquist court (well, okay, none in a major way since 1939), has not touched a case involving the interpretation of the 2nd Amendment. Why? Because Justice Scalia is a proponent of an “original intent” test when interpreting constitutional issues, so by that logic, he would support a position more directly linking the “right to keep and bear arms” clause to that of the collective, “well regulated militia,” and not of the individual right to buy any type of assault grade weapon he wants, because the overwhelming majority of the framers believed that. And I don't suppose that would make the current rulers of the other two branches in the Federal Government very happy. And why do I get the feeling that he would make an exception to the "original intent" test here (do I hear a flip or a flop in the distance)?

Second, notice the legions of unrecognizable names that have faded into the obscurity of history on the side of the anti-federalist argument against the creation of “a more perfect union,” well in the minority during the time of the constitutional convention (Thomas Jefferson excepted, though we don't hear from him on the 2nd). And then there are the Federalists, names like James Madison, John Jay, George Washington, known by most everyone. Supporters of the individual right to keep whatever firearm they wanted for whatever reason were on the radical fringe, as this account shows in overwhelming detail. It wasn’t until after the civil war that this began to change.

I will leave with a direct quote near the end of the article (prescient in terms of other hot button issues we’re dealing with today such as gay marriage), and the amendment itself, the ambiguous wording of which is the sole source of today's controversies:

“Oliver Ellsworth, who would later be Chief Justice of the United States, found the whole notion of specific protections of liberties silly. Frustrated by the constant demands for an endless laundry list of amendments, he argued that

‘There is no declaration of any kind to preserve the liberty of the press, etc. Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that Congress have no power to prohibit either, and can have no temptation. This objection is answered in that the states have all the power originally, and Congress have only what the states grant them.[193]’”

The 2nd Amendment: 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.

P.S. I am not for banning all guns, but I do support the use of guns that are "well regulated," especially for the ones that can do the most serious damage.

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