By Charles C. W. Cooke
Tuesday, December 19, 2017
‘The U.S. was actually founded on gun control. . . . If
you study your history, you’ll see it.” So begins the latest attempt to rewrite
the republic’s history, and thereby to achieve by revisionist “interpretation”
what cannot be achieved via Article V.
The attempt was published in Salon, and one of its authors, Ed Asner, is a 9/11 truther. Given
that, the quality of the work is about what you’d expect. Having proposed that
Congress, the Supreme Court, and the majority of Americans “claim the Second
Amendment is not simply about state militias but guarantees the unfettered
right of everyone to own, carry, trade and eventually shoot someone with a gun”
— ah, yes, the right to “eventually shoot someone with a gun,” so beloved to
those of us who can read — Asner and his co-author, Ed Weinberger, proceed to
offer up the most comprehensively illiterate and most embarrassingly researched
example within what is, alas, a growing genre. As an example of Second
Amendment trutherism, this one will likely never be beaten.
We might start with the purely factual errors. Asner and
Weinberger claim that “as written, the Second Amendment follows closely in
meaning and in language previous state and national Constitutions — all of
which explicitly refer to militias and not individuals.” This is wrong. The
Second Amendment was ratified in 1791, which is 15 years after Vermont’s Bill
of Rights, which held that “the people have a right to bear arms for the
defence of themselves and the state”; 15 years after North Carolina’s Bill of
Rights, which proposed that “the people have a right to bear arms, for the
defence of the State”; and a year after Pennsylvania’s Declaration of Rights,
which ensured that “the right of the citizens to bear arms in defence of
themselves and the State shall not be questioned.” It is also eleven years
after Massachusetts confirmed that “the people have a right to keep and to bear
arms for the common defence” — a plain statement that, like the others quoted,
contains no references to a “militia,” “explicit” or otherwise, but does
mention “the people.”
Asner and Weinberger also claim that Justice Scalia’s
“odd” take on the Second Amendment’s grammar not only was incorrect, but was
one that “nobody’s ever heard of, then or since.” His decision, they propose,
ignored “200 years of precedent, historical context, the Framers’ Intent.” The
ignorance or dishonesty that it must have taken to write these two sentences
is, I must confess, beyond my ken. As Eugene Volokh has pointed out
at length, the construction used in the Second Amendment was not peculiar
for the era, but was in fact “commonplace.” Here, for example, is a pre–Bill of
Rights provision from New Hampshire’s constitution, designed to protect the
freedom of the press:
The Liberty of the Press is essential
to the security of freedom in a state; it ought, therefore, to be inviolably
preserved.
Moreover, the phrasing of the Second Amendment has been a
topic of discussion since long before Justice Scalia’s ancestors had even
thought about emigrating to America. Most famously, Justice Thomas Cooley
considered the question in his 1880 classic General
Principles of Constitutional Law in the United States of America — a book
that was written, it should be noted, after the use of prefatory clauses had
fallen out of fashion. “It may be supposed from the phraseology of this
provision,” Cooley wrote,
that the right to keep and bear
arms was only guaranteed to the militia; but this would be an interpretation
not warranted by the intent. The
militia, as has been elsewhere explained, consists of those persons who, under
the law, are liable to the performance of military duty, and are officered and
enrolled for service when called upon.
But the law may make provision for the enrolment of all who are fit to
perform military duty, or of a small number only, or it may wholly omit to make
any provision at all; and if the right were limited to those enrolled, the
purpose of this guaranty might be defeated altogether by the action or neglect
to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is,
that the people, from whom the militia must be taken, shall have the right to
keep and bear arms, and they need no permission or regulation of law for the
purpose. But this enables the government
to have a well regulated militia; for to bear arms implies something more than
the mere keeping; it implies the learning to handle and use them in a way that
makes those who keep them ready for their efficient use; in other words, it implies
the right to meet for voluntary discipline in arms, observing in doing so the
laws of public order.
“Then or since,” indeed.
As for the “Framers’ intent” and the “historical
context,” both of these line up squarely on the side of what is, for good reason,
described as the “Standard Model.” It cannot be repeated often enough that the
“odd” position in the debate over the Second Amendment is not the one taken by
the Supreme Court, but the preposterous “collective right” theory that Asner,
Weinberger, and a handful of other truthers have taken to peddling in the
modern era. To “study the history,” as Asner commands, is to discover this
immediately, and thereby to realize the absurdity of the claims that the United
States was “founded on gun control”; that our “American forefathers limited any
and all freedoms when they clashed with public safety”; and that, ultimately,
the Constitution was written because “the Founders were afraid of guns.” It
wasn’t. They didn’t. And they weren’t. Rather, they understood that they had
entrenched within the federal Constitution the principle that, as St. George
Tucker put it in 1803,
The right of the people to keep and
bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this
without any qualification as to their condition or degree, as is the case in
the British government
Which meant, as William Rawle wrote in his seminal A View of the Constitution of the United
States of America, that:
The prohibition is general. No
clause in the Constitution could by any rule of construction be conceived to
give to congress a power to disarm the people. Such a flagitious attempt could
only be made under some general pretence by a state legislature.
Or, as outlined by Supreme Court Justice Joseph Story in
his influential 1833 work, Commentaries
on the Constitution,
The right of the citizens to keep
and bear arms has justly been considered, as the palladium of the liberties of
a republic; since it offers a strong moral check against the usurpations and
arbitrary power of rulers; and it will generally, even if these are successful
in the first instance, enable the people to resist and triumph over them.
Know who else wrote like this? James Madison, a man whom
Asner and Weinberger inexplicably cast as a “scared’ gun-controller. A quick
reading of Federalist 46 – in which
Madison distinguished repeatedly between “the advantage of being armed, which
the Americans possess over the people of almost every other nation” and “the
existence of subordinate governments, to which the people are attached, and by
which the militia officers are appointed” — should suffice to disabuse anybody
of the first position. In Europe, Madison observed in the same document,
“governments are afraid to trust the people with arms”; in America, those
people had won independence, and they would do so again if it came to it. There
is no way of squaring this document with the claim that Madison was either
against the private ownership or arms per se, or that he wished it to be
contingent upon militia service. (Those who are interested should also read
this excellent
explanation of how brazenly the pair is lying about Madison’s “Preservation
of Deer” bill.)
What about the Second Amendment’s drafting history,
confusion over which lies at the root of Asner and Weinberger’s essay? Does
what we know about that process show that we — along with every major
commentator from the period — have made a dreadful historical mistake, and that
the Second Amendment is in fact there to protect the individual right to join a
state body over which the federal government had control? That, certainly, is
the authors’ contention: that the first draft of the amendment — which was
rejected — indicates that the final version doesn’t mean what it says.
This approach is a weak one in general. In what other
context would we treat what a legislature started
with as being more indicative of its will than what it finished with? But it
also falls apart when one gets to the substance. As the debates over the Bill
of Rights make clear, the question before the framers was not “Should we or
shouldn’t we have gun control?” but “How can we ensure that the federal
government does not become a tyranny?” Along with a number of other drafters,
Madison believed that the enumerated-powers doctrine would suffice to prevent
any backsliding, and thus that no Bill of Rights was necessary – the theory
being that if the federal government had only limited legal authority, it would
have no real chance to exceed it. Madison had a point — indeed, intellectually,
his approach was consistent. But, given the speed with which the British
Empire’s “salutary neglect” had been replaced by the Declaratory Act, and given
the fear among many that the same thing could happen domestically, his argument
did not satisfy everyone. And so a compromise was struck: The Constitution
would be passed as it was, but it would be swiftly followed by a Bill of
Rights, within which would lie a set of mechanisms to which the people might
appeal should their national government cross the line.
Once again: There was no “gun control” contingent within
the American founding generation. Not only had the right to bear arms been both
a legal and practical fact within the colonies, but it was a British attempt at
confiscation that had sparked the recent Revolution. There was, however, a contingent that remained terrified of the standing
army for which the Constitution had provided, and which wanted assurances that
the new government would not be permitted to supplant or to suppress the
“militia,” which, at the time, was considered synonymous with “the people.”
Within this context, there is no iteration of the Second Amendment that seems
anything other than straightforward.
Here is the first draft that Asner and Weinberger
consider so damning:
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.
The conclusion that the pair draws from this evidence is
incoherent. “Madison’s intent,” they propose, “could not be more obvious: his
Second Amendment refers only to state militias.” But the version they’re using
to make that claim — the first draft — does not actually refer to “state
militas” anywhere; instead, it refers to “country.” Indeed, it was only later that “country” was switched out
for “state” in the explanatory provision. Amusingly enough, this supposedly damning
draft is in fact clearer than the
final one, in that it begins with the
“right of the people,” and only afterwards
offers a justification that makes no mention of state militias. One can only
assume that, had this wording survived, we’d have been spared a lot of
sophistry.
Asner and Weinberger also imply that the final sentence
within the draft — which would have protected any “person religiously
scrupulous of bearing arms” from rendering military service — is in some way
damning to the Standard Model’s presumptions. But that is convincing only if
one misunderstands both the contemporary environment and the drafting process. The “scrupulous” exemption in the initial
draft echoed the language of the 1757 Pennsylvania Militia Act, which had
confirmed for the state’s Quakers and Mennonites that those “scrupling the use
of arms” would not be forced into military service. Why did Madison tack this
on to what eventually became the Second Amendment? Well, because his own state
of Virginia had requested he do so. Effectively, the first draft of the
amendment was a clumsy composite of the 17th and 19th items on Virginia’s list
of demands. That these two items didn’t really belong together quickly became
obvious, and the latter was thus removed without fanfare. As Justice Scalia
noted in Heller, “the most natural
interpretation of Madison’s deleted text is that those opposed to carrying
weapons for potential violent confrontation would not be ‘compelled to render
military service,’ in which such carrying would be required.” It is not that
James Madison hoped to cast doubt upon the right to bear arms.
None of the aforementioned matters much, of course,
because Asner and Weinberger are not really investigating history, but trying
to rewrite it. Theirs is a piece designed to convince the already convinced
that almost everyone has fallen for a hoax. It’s hard work reversing
much-beloved constitutional provisions, especially when they are built upon
ideals that go back centuries. It’s much easier to pretend that “people”
doesn’t mean “people,” and “right” doesn’t mean “right,” and that Michael
Bellesiles was right after all. The Truther Singularity is perhaps closer than
I had thought.
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