>You see why Judge Easterbrook and I love textualism?
>It makes life, or anyway law, _so_ much easier. This
>original intent stuff is for the birds. Judges aren't
>historoans, and historians aren't even ever supposed
>to agree about questions like this. The law is the
>text enacted or (here)ratified by the authoritative
>bodies. If it is clear, you enforce/obey it, or try
>to change it by whatever means. You don't have to
>worry about what was in people's heads.
Man, I hate to sound French, but do you think the meaning of a text is so clear, stable, and universally shared? People have been breaking their heads over the text of the second amendment for a long time, and generally interpret it to mean what they want it to mean.
More from Dan Lazare's article:
>It is worth noting that even among those who were skeptical about
>the militias' military worth, the concept of a people in arms does
>not seem to have been at all problematic. Although Alexander
>Hamilton argued against separate state militias at the
>Constitutional Convention in 1787, for example, he seemed to have
>had nothing against popular militias per se. In 1788, he argued in
>The Federalist Papers that in the unlikely event that the proposed
>new national government used what was known at the time as a
>"select" militia--i.e., an elite corps--to oppress the population at
>large, the rest of the militia would be more than enough to fight
>them off. Such "a large body of citizens," he wrote, "little if at
>all inferior to them in discipline and the use of arms, ... [would]
>stand ready to defend their own rights and those of their
>fellow-citizens." This is one reason why the argument that the
>Second Amendment confers only a collective right to join the
>National Guard is specious: today's National Guard is far closer to
>the eighteenth-century concept of a select militia than to the
>broad, popular militia the Framers clearly had in mind. And if the
>Second Amendment was nothing more than a guarantee of a right on the
>part of the states to organize state militias, it would imply that
>only the federal government was potentially tyrannical. Yet it is
>clear from James Madison's writings in The Federalist Papers that he
>saw state governments as potential sources of tyranny as well.
>Madison wrote that "the advantage of being armed" was one of the
>things that distinguished Americans from all other nations and
>helped protect them against abuse of power at all levels of
>government, federal and state. Anti-federalists quite agreed. Their
>only quibble was that they demanded a Bill of Rights; they wanted
>the right to bear arms put in writing for all to see.
>
>The meaning of what is now the Second Amendment becomes clearer
>still if we take a look at how its wording evolved. Madison's
>original version, which he drew up in 1789 as a member of the newly
>created House of Representatives, was on the wordy side but at least
>had the merit of clarity:
>
> The right of the people to keep and bear arms shall not be infringed; a
> well armed and well regulated militia being the best security of a free
> country; but no person religiously scrupulous of bearing arms shall be
> compelled to render military service in person.
>
>
>By reversing the order between the right to bear arms and a
>well-regulated militia, Madison reversed the priority. Rather than a
>precondition, his original version suggested that a well-ordered
>militia was merely one of the good things that flowed from universal
>gun ownership. A committee to which the amendment was referred,
>however, changed the order so that the amendment now read,
>
> A well regulated militia, composed of the body of the people, being the
> best security of a free State, the right of the people to keep and bear
> arms shall not be infringed, but no person religiously scrupulous shall be
> compelled to bear arms.
>
>
>This was confusing but at least made plain that a militia was
>essentially synonymous with the people at large. Unfortunately, that
>notion, too, was lost when the Senate got hold of the amendment and
>began chopping out words right and left. The reference to "the body
>of the people" wound up on the cutting-room floor, as did the final
>clause. The effect was to deprive later generations of an important
>clue as to what a well-regulated militia actually meant. Although
>the final version was leaner and more compact, it was also a good
>deal less clear.
>
>Nonetheless, a few things seem evident. If the Framers were less
>than explicit about the nature of a well-regulated militia, it was
>because they didn't feel they had to be. The idea of a popular
>militia as something synonymous with the people as a whole was so
>well understood in the eighteenth century that it went without
>saying, which is undoubtedly why the Senate felt that the reference
>to "the body of the people" could be safely eliminated. It is also
>important to note that the flat-out declaration "[t]he right of the
>people to keep and bear arms shall not be infringed" remained
>unchanged throughout the drafting process. As Joyce Lee Malcolm has
>noted, the Second Amendment is a reworking of a provision contained
>in the English Bill of Rights of 1689. But whereas the English Bill
>of Rights specified that subjects "may have arms for their defense
>suitable to their conditions, and as allowed by law," the American
>version avoided any such restrictions. Since all Americans (or,
>rather, members of the white male minority) were of the same rank,
>they possessed the same rights. They could bear arms for any
>purpose. And since the amendment was now part of the Constitution,
>the right was not limited by ordinary law but was over and above it.
>It was the source of law rather than the object. In this regard, as
>in virtually all others, Americans saw their role as taking ancient
>liberties and strengthening them so as to render tyranny all the
>more unlikely.
>
>Although members of the legal academy assume that this is where the
>discussion ends, they're wrong: it's where the real questions begin.
>In attempting to nail down the meaning of the Second Amendment, we
>are therefore forced to recognize that "meaning" itself is
>problematic, especially across the span of more than two centuries.
>Once we have finished dissecting the Second Amendment, we are still
>left with a certain tension that necessarily exists between a
>well-regulated militia on the one hand and a right to bear arms on
>the other. One suggests order and discipline, if not government
>control; the other suggests voluntarism and a welling up from below.
>Eighteenth-century Country ideology tried to resolve this
>contradiction by envisioning the popular militia as a place where
>liberty and discipline would converge, where a freedom-loving people
>would enjoy the right to bear arms while proving their republican
>mettle by voluntarily rising to the defense of liberty. But although
>this certainly sounded nice, a harrowing eight-year war for
>independence had demonstrated the limits of such voluntarism.
>No-nonsense Federalists such as Washington and Hamilton recognized
>that there was no substitute for a professional army, not to mention
>a strong, centralized nation-state. But they also recognized that
>they had to get along with elements for whom such ideas were
>anathema. As a result, they felt they had no choice but to put aside
>their scruples and promise effective discipline from above and
>spontaneous self-organization from below, strong national government
>and states' rights, as contradictory as those notions might now seem.