Click here to purchase. |
As America grapples with a relentless tide of gun violence, pro-gun activists have come to rely on the Second Amendment as their trusty shield when faced with mass-shooting-induced criticism. In their interpretation, the amendment guarantees an individual right to bear arms—a reading that was upheld by the Supreme Court in its 2008 ruling in District of Columbia. v. Heller. Yet most judges and scholars who debated the clause's awkwardly worded and oddly punctuated 27 words in the decades before Heller almost always arrived at the opposite conclusion, finding that the amendment protects gun ownership for purposes of military duty and collective security. It was drafted, after all, in the first years of post-colonial America, an era of scrappy citizen militias where the idea of a standing army—like that of the just-expelled British—evoked deep mistrust.
In his new book, The Second Amendment: A Biography, Michael Waldman, president of the Brennan Center for Justice at New York University, digs into this discrepancy. What does the Second Amendment mean today, and what has it meant over time? He traces the history of the contentious clause and the legal reasoning behind it, from the Constitutional Convention to modern courtrooms.
So what exactly did Mr. Waldman discover about the history of the 2nd Amendment?
MJ: What preconceived notions about the Second Amendment did the history that you uncovered confirm or debunk?
MW: There are surprises in this book for people who support gun control, and people who are for gun rights. When the Supreme Court ruled in Heller, Justice Scalia said he was following his doctrine of originalism. But when you actually go back and look at the debate that went into drafting of the amendment, you can squint and look really hard, but there's simply no evidence of it being about individual gun ownership for self-protection or for hunting. Emphatically, the focus was on the militias. To the framers, that phrase "a well-regulated militia" was really critical. In the debates, in James Madison's notes of the Constitutional Convention, on the floor of the House of Representatives as they wrote the Second Amendment, all the focus was about the militias. Now at the same time, those militias are not the National Guard. Every adult man, and eventually every adult white man, was required to be in the militias and was required to own a gun, and to bring it from home. So it was an individual right to fulfill the duty to serve in the militias.
You know I have a friend, some of you may actually know of him, who is always going on about the fact that we really cannot make any truly effective long term gun laws until somebody in the government finds the balls to revisit the 2nd Amendment and rewrite it so that it makes sense in our modern world.
I usually get pissed at him and tell him that suggesting that is a cop out for not wanting to do anything, since there is NO way that in this political climate we could ever attempt to modernize the 2nd Amendment.
However just between you and I, he is not exactly wrong.
As long as the Amendment remains so poorly written, and open to interpretation, it will continue to interfere with our efforts to protect our citizens from senseless gun violence.
But hey, perhaps we will in the near future finally get a Supreme Court that understands the Amendment and reinterprets it to help Congress pass mandatory laws gun registration laws, ban military style weapons, and make mental health background checks a must before giving every Tom, Dick, and Dirty Harry a weapon for killing other human beings.
Justice Antony Scalia 78 years old.
Justice Anthony Kennedy 77 years old.
Justice Clarence Thomas 65 years old.
Justice Samuel Alito 64 years old
If the Democrats manage to hold on to the White House for two more terms it COULD happen!
It may be even more important to hold the majority in the Senate.
ReplyDeleteLiberal justices Ruth Bader Ginsburg, dealing with pancreatic cancer, is 81 and Stephen Breyer is 75 years old.
I too follow the doctrine of originalism. When the Constitution was written, AR-15s did not exist, and therefore could not possibly be part of the definition of "arms". Any other interpretation has to be a "re-interpretation" and not what the founding fathers hand in mind.
ReplyDelete>>Again, thanks SO MUCH for all your hard work.
ReplyDeleteI fully concur with your well presented acknowledgement of Jesse. Thank you for posting it.
If those who want original intent all they have to do is read Madison on his intent of the 2nd amendment. It's clear he was talking about the needs and security of a militia, not individuals.
ReplyDeleteI am going to have to read this book. I am curious about whether or not he explores in depth the second part of the recent SC decision about it being the right of the individual to bear arms. In the decision it is clearly stipulated that the right is NOT unlimited and does NOT prohibit all regulation of firearms.
ReplyDeleteSomething the NRA and other liars refuse to even mention! GEE! I wonder why? Nw. If we could only get the Congress to see that....
This research adds a new qualification to the second Amendment that the judges and lawyers missed. The right to arms is linked to being in the militia. The logical conclusion is that you must serve in the military to possess weapons. I wonder how many NRA officers are veterans.
ReplyDeleteHonestly, I've been saying this for decades. I cannot imagine how it could be interpreted any other way, it's pretty clear. Says nothing of individuals, and specifically mentions "well regulated militia".
ReplyDeleteAnd for any dumbass rednecks that may have stumbled here by accident, NO, you and a gaggle of your ignorant friends walking around the mall with your weapons on display do NOT constitute a "Well regulated militia" regardless of whatever infantile fantasies your harbor about battling "tyranny".
'the right of the people to keep and bear Arms, shall not be infringed'
DeleteIt seems pretty clear to me that the government shall not infringe on the right of people to bear arms. People are a collection of individuals, 'shall not infringe' is very encompassing. The government is to stay out of it. But sorry Boscoe, not a redneck.
@ Anonymous 7:39 pm
DeleteWhy, yes ... you're absolutely right!
It does seem "pretty clear" -- when YOU LEAVE OUT HALF OF THE ACTUAL WORDING ...
The 2nd Amendment, AS WRITTEN, states:
"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."
You may not be a redneck but ....
No, I'm actually going to exercise a little restraint and NOT tell you what you ARE -- if only because the list would be far too long and scathing.
I'm going to have to add this to my reading list. This was written years ago and is considered a "living document". A well regulated militia made sense for the times, but a lot has changed. We really need to GOTV now, more than ever, this isn't the kind of world I envisioned leaving my kids.
ReplyDeleteHere's something of interest on this topic
http://www.politicususa.com/2014/06/22/bear-arms-if-white.html