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Second Amendment’s origins laid out in compelling fashion by Igor Volsky

I find that people are often shocked when I tell them that the Supreme Court never held the right keep and bear arms to be an individual right of Americans until 2008.

It has long been clear to me, as a Constitution nerd, that the NRA-sponsored interpretation of the Constitution’s Second Amendment represents a radical departure from anything close to the original purpose of the amendment. A strong new piece has added to my certainty, so I write today to pass it along. Details of that piece, and a link to it, are below, but first some background:

You have only to read the opening words of the Second Amendment – “A well-regulated Militia, being necessary to the security of a free State” – to see plainly the idea behind the amendment. It was adopted in the early days after the Constitution had created a more powerful national government (replacing the much weaker Articles of Confederation) to reassure states concerned that Congress might try to disarm the state militias. The state militias were then the chief military force of the nation.

The Constitution did give Congress the power to create and arm a federal military  (although, interestingly, they funded it only on a short-term basis).

The language (Article I; Section 8; subsection 12) gives Congress the power: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” No similar language (in the next subsection) places a similar short-term limit on funds for a Navy. Only an Army. The states didn’t have navies and the Framers were prepared to fund a permanent federal Navy to protect the Atlantic coast.

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If you’re surprised or still skeptical that the plan was to rely primarily on the state militias for land wars, Art. I; section 8; subsections 15 and 16 specify that Congress is empowered:

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

All of that is still in the Constitution.

Given the ginormous change, over the past centuries, in the relative power of the U.S. military to the combined power of the state militias (however “well-regulated”), the states’ concern that the feds might try to disarm the state militias seems substantially anachronistic. But it obviously (to me, at least) explains the concern that led to the Second Amendment, which guarantees “the right of the people to keep and bear Arms.” If you read the full text of the Second Amendment in this context it makes much more sense.

“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.”

And it clarifies that, in the very first years of the new, more nationalized system, when the Bill of Rights amendments were proposed and ratified, the states were worried that the powerful new federal government might try, for tyrannical purposes, to disarm the state militias.

No one thinks today’s state militias could do much to resist the modern Army, Navy, Air Force and Marines if, God forbid, it came to that. But, under the brilliant manipulation of the gun industry and its ally the National Rifle Association, the Second Amendment has morphed ever closer to a guarantee that any common-sense limitations on the ability of individuals (without regard to militia membership) to acquire assault weapons of killing power unimaginable to the Framers would violate the Framers’ sacred vision of the fundamental right of individual private gun ownership.

I find that people are often shocked when I tell them that the Supreme Court never held the right to keep and bear arms to be an individual right of Americans until 2008. 2008! It was a 5-4 ruling (District of Columbia v. Heller, 554 U.S. 570) written by Justice Antonin Scalia and supported only by Republican-appointed justices.

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Now on to that excellent piece that ran over the weekend from the Daily Beast, excerpted from anti-NRA activist Igor Volsky’s book “Guns Down: How to Defeat the NRA and Build a Safer Future with Fewer Guns.” The Beast piece advances one’s understanding, while also casting some shade on James Madison, often called the “Father of the Constitution.”

During the framing convention in Philadelphia in 1787, Volsky notes, the right to bear arms was not considered important enough to include in the draft, “nor was there any great public clamoring for such a provision in the fiery debates” over ratification.

According to Volsky:

John Vanderlyn
James Madison
After the ratification, Madison was a candidate to represent Virginia in the first House of Representatives. Religious minorities in his district demanded a guarantee that the powerful new government would never prioritize one religion over another. In order to appease that concern, Madison (who had at first opposed the idea of a series of amendments to the Constitution) changed sides and became the chief sponsor of the amendments that became known as the Bill of Rights, including the First Amendment, which leads off with the guarantee that “Congress shall make no law respecting an establishment of religion.” (It also guarantees freedom of speech and press.)

Madison won his seat, became a leading member of the early House, and a chief sponsor of that amendment and others that make up what we now call “the Bill of Rights.” In it, Madison included (and it ended up being the Second Amendment) one designed to ensure that the new national government would not use its power to excessively dominate the states.

At that time, the standing military power of the new national government was minimal. Most military power consisted of the state militias. Some in the states feared that the new Congress would try to disarm the militias to further diminish state power. If you look at it within its proper historical context, it’s clear that the Second Amendment, which we now think of as all about an individual right to possess weapons, was about the state militias. Its full text:

“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.”

Now, of course, that ship has sailed. The U.S. Army, Navy, Air Force and Marines dwarf the combined power of state militias. The argument now is about whether individuals, few of whom belong to state militia organizations, have an almost unlimited right to possess weapons of a sort unimaginable at the time of the framing of the Second Amendment, and to possess them for purposes having little or nothing to do with the military defense of their state or the nation, and to do so even if that guarantee as now interpreted also facilitates the possession of weapons used for mass murders.

Maybe I’m a little prejudiced. And Volsky is a campaigner for gun control. So take that into account. But his historical argument is that the Second Amendment was intended to prevent the federal government from disarming the state militias — not to guarantee the right of every citizen (militia member or not) to own every gun that would be invented in the future. Some more points from his piece:

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At the time of the Revolutionary War, the colonies themselves regulated firearms within a state militia structure. Militia members, all white male landowners, were required to obtain their own firearms, which Volsky wrote were used “to strip Native Americans of their land and rule enslaved Africans.”

But to ensure that guns did not fall into the “wrong” hands, the colonies required that guns be registered and inspected, Volsky wrote. “Regulation of firearms in the colonies both during and after independence included policing powers over nonmilitary use of the weapons,” he wrote. “Boston residents were not permitted to store a loaded firearm in their home, and individuals faced stiff penalties for violating this prohibition. Boston, along with New York, prohibited the firing of guns within city limits. Rhode Island conducted a house-by-house census of gun owners. Pennsylvania law allowed the government to disarm individuals deemed insufficiently loyal to the state.”

I wonder how today’s Second Amendment gun enthusiasts would react if states did that now.

The full Volsky/Daily Beast piece is here.