Exclusive: As Americans reel in shock over the slaughter of 20 schoolchildren in Newtown, Connecticut, defenders of “gun rights” insist, in effect, that such deaths are part of the price of “liberty” enshrined by the Framers in the Second Amendment. But this was not what James Madison had in mind, argues Robert Parry.
The American Right is fond of putting itself inside the minds of America’s Founders and intuiting what was their “original intent” in writing the U.S. Constitution and its early additions, like the Second Amendment’s “right to bear arms.” But, surely, James Madison and the others weren’t envisioning people with modern weapons mowing down children in a movie theater or a shopping mall or now a kindergarten.
Indeed, when the Second Amendment was passed in the First Congress as part of the Bill of Rights, firearms were single-shot mechanisms that took time to load and reload. It was also clear that Madison and the others viewed the “right to bear arms” in the context of “a well-regulated militia” to defend communities from massacres, not as a means to enable such massacres.
James Madison, architect of the U.S. Constitution and author of the Bill of Rights.
The Second Amendment reads: “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.” Thus, the point of the Second Amendment is to ensure “security,” not undermine it.
The massacre of 20 children in Newtown, Connecticut, on Friday, which followed other gun massacres in towns and cities across the country, represents the opposite of “security.” And it is time that Americans of all political persuasions recognize that protecting this kind of mass killing was not what the Founders had in mind.
However, over the past several decades, self-interested right-wing “scholarship” has sought to reinvent the Framers as free-market, government-hating ideologues, though the key authors of the U.S. Constitution – people like James Madison and George Washington – could best be described as pragmatic nationalists who favored effective governance.
In 1787, led by Madison and Washington, the Constitutional Convention scrapped the Articles of Confederation, which had enshrined the states as “sovereign” and had made the federal government a “league of friendship” with few powers.
What happened behind closed doors in Philadelphia was a reversal of the system that governed the United States from 1777 to 1787. The laws of the federal government were made supreme and its powers were dramatically strengthened, so much so that a movement of Anti-Federalists fought bitterly to block ratification.
In the political maneuvering to assure approval of the new system, Madison and other Federalists agreed to add a Bill of Rights to ease some of the fears about what Anti-Federalists regarded as the unbridled powers of the central government. [For details, see Robert Parry’s America’s Stolen Narrative.]
Madison had considered a Bill of Rights unnecessary because the Constitution, like all constitutions, set limits on the government’s power and it contained no provisions allowing the government to infringe on basic liberties of the people. But he assented to spell out those rights in the first 10 amendments, which were passed by the First Congress and ratified in 1791.
The intent of the Second Amendment was clarified during the Second Congress when the U.S. government enacted the Militia Acts, which mandated that all white males of military age obtain a musket, shot and other equipment for service in militias.
The idea was to enable the young country to resist aggression from European powers, to confront Native American tribes on the frontier and to put down internal rebellions, including slave revolts. There was nothing particularly idealistic in this provision; the goal was the “security” of the young nation.
However, the modern American Right and today’s arms industry have devoted enormous resources to twisting the Framers into extremist ideologues who put “liberties” like individual gun ownership ahead of all practical concerns about “security.”
This propaganda has proved so successful that many politicians who favor common-sense gun control are deemed violators of the Framers’ original intent, as essentially un-American, and face defeat in elections. The current right-wing majority on the U.S. Supreme Court has even overturned longstanding precedents and reinterpreted the Second Amendment as granting rights of individual gun ownership.
But does anyone really believe that Madison and like-minded Framers would have stood by and let deranged killers mow down civilians, including children, by using guns vastly more lethal than any that existed in the Revolutionary era? If someone had wielded a single-shot musket or pistol in 1791, the person might get off one volley but would then have to reload. No one had repeat-firing revolvers, let alone assault rifles with large magazines of bullets.
Any serious scholarship on the Framers would conclude that they were, first and foremost, pragmatists determined to protect the hard-won independence of the United States. When the states’-rights Articles of Confederation wasn’t doing the job, they scrapped it. When compromises were needed – even on the vile practice of slavery – the Framers cut the deals.
While the Framers cared about liberty (at least for white men), they focused in the Constitution on practicality, creating a flexible system that would advance the “general Welfare” of “We the People.”
It is madness to think that the Framers would have mutely accepted the slaughter of kindergarteners and grade-school kids (or the thousands of other American victims of gun violence). Such bloody insecurity was definitely not their “original intent.”
Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).
SECOND AMENDMENT ~ Legal Information Institute, Cornell University Law School.
The Second Amendment of the United States Constitution reads: “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.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . .” The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.
This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.
Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.
However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.
See constitutional amendment.
MENU OF SOURCES
Erwin Chemerinsky, Constitutional Law: Principles and Policies 26-28 (2006).
Putting all of these textual elements together, we find that [the Second Amendment] guarantee[s] the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”
District of Columbia v. Heller, 478 F.3d 370 (2008)