[lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)

jared unended at houston.rr.com
Mon Jul 19 18:04:01 PDT 2004


Shane wrote:

"But of course "they" did [mean to grant an individual right to keep and bear arms], in the most unequivocal terms. The very first phrase of the Constitution--"*We* the people"-- defines "people" as a plural, not a collective, noun. Although the "Framers" of the Bill of Rights were not the original Philadelphia writers of the text but the popular masses who insisted on inclusion of those guarantees of their rights, this makes no difference. The Constitution would never have been ratified if the people even suspected that it gave them not individual but governmentally defined "collective" rights, nor that their right to keep and bear their firearms would disappear in favor of their "right" to enlist in a governmentally regimented military force."

The controversy surrounding the ratification of the constitution was not so much between "the people" and the federal government as much as it was between state sovereignty, which was viewed as the representative of various "the peoples" (13 different "the peoples"), and the federal government. Although state governments were viewed as representatives of "the people", it is important to focus on state sovereignty itself when reading the constitution because the constitution was allocating powers between governments, not between the federal government and "the people."

The Second Amendment was a response to the concern that the federal government would reduce state sovereignty to nil with a standing army (which the new constitution granted the new Congress the power to have). The anti-federalists (who generally held positions of power in state governments) believed that the maintenance of State militias would reduce the need for the federal government to rely on standing armies and thereby help preserve state sovereignty. Consider these provisions that reference militias within the constitution itself (i.e., before the Bill of Rights was even drafted):

Art. I, s. 8, cl. 15 gives the Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Art. I, s. 8, cl. 16 provides the Congress the power "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."

Art. II, s. 2, cl. 1 gives the president the power to "be Commander in Chief ... of the Militia of the several States, when called into the actual Service of the United States."

Now back to the Second 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 [by the federal government]."

It's pretty clear the Amendment is referring to the Militia "of the several States," that is, an organized body. The phrase "the right of the people" is simply indicative of the widely held view of the time that Militias were composed of "the people." If you look at the State militia laws of the time (cited in the Supreme Court's Miller opinion), the militias invariably called for the service of "every able-bodied male in the state between the ages of x and y" and so on. So you can see how militias came to be identified generally as "the people." If we're going by intent, it's crystal clear the Amendment refers to the right of the people *in their capacity as an organized militia of a state* to keep and bear arms. The Second Amendment was meant to protect state power vis-a-vis the federal government by protecting, although minimally, the concept of the state militia, ensuring the federal government could not legislate away its weapons (thereby making militias disappear, followed next by state governments and state boundaries).

Incidentally, many of the rights in the BOR should be read jurisdictionally in this manner. Some amendments were not really meant to bestow rights on people, but to explicitly demarcate what areas the state governments retained jurisdiction over within the federal system. For instance, most State governments at this time regulated religion and religious worship. The First Amendment's religion clauses were meant to deprive the federal government of the power to regulate religion and thereby ensure the regulatory power of the states in matters of religion. In other words, it wasn't that people should be free from religious regulation by government, but that one's religion should be regulated by his state government as opposed to the federal government.

--Jared



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