Don Kates' essay
I've attached, in the extended remarks, an essay by Don Kates on the interpretation of the Second Amendment. Here are my comments on it:
I don't think it completely accurate to say there was no intent to modify the original constitution. Modification is what amendments are all about.
I think the purpose can be more exactly stated as an intent to avoid modifying the federal government as the federalists thought it should be. They wanted to set up a functional, fair system, and the antifederalists claimed they wanted to set up an all-powerful and oppressive one. So--resolve the fears with amendments that did not restrict the system you want, but would restrict what you have no intention of doing anyway. OK, we bind ourselves not to create a national church, forbid freedom of speech, or disarm the populace. We never meant to do any of that -- and it would be political and perhaps physical suicide to try -- so why not forbid it? On the other hand, keep what is seen as important -- the power to raise armies and specify organization of the militia, to tax and spend, etc. -- free of new restrictions. Thus the "throwing a tub to the whale" (18th century lingo for "launch a decoy") remark.
With regard Prof. Volokh's point, I would amplify a bit. Yes, use of prefatory or hortatory clauses was common in constitutional drafting of the time. The enforcement of a bill of rights was still unclear, judicial review and all that, and in any event legal remedies don't work well against a real dictator. As Jefferson wrote to Madison, a bill of rights at least lets the people be certain of what their rights are and of when they have been infringed (with the implication they can then vote the scoundrels out of office or, if that fails, take up arms). For that purpose, you might as well explain why they have a right. You can see this all in the letters between Madison and Jefferson leading up to the bill of rights. Madison argues that a bill of rights is a mere parchment barrier that any real tyranny would disregard at will, and Jefferson is arguing that at least it will let the people know, indisputably, when the government starts to go that way. (Note that both seem to think that what is guaranteed in a bill of rights is clear from its face.... no room for balancing tests, strict vs. lesser scrutiny, etc. The average person should be able to judge from reading the words whether a governmental action is illegal or not).
Madison's draft had several such explanatory clauses, and the first congress chopped them all out when they radically shortened his work. All, except for the one in the second amendment. I suspect it stayed in for a simple reason. Unlike the other explanatory clauses, it had a separate thrust. A statement of an individual right to arms would satisfy, oh, Jefferson, Sam Adams, the PA minority and the NH convention delegates, but would not have sufficed to satisfy antifederalists such as George Mason and Pat Henry, who really were hot on the militia system. So why not spend nine words to make them happy and/or undermine their criticism?
By Don Kates:
To my knowledge at least, no constitutional scholar has pointed to the debates over the ratification of the Constitution as a source for interpreting the meaning of the various provisions of the Bill of Rights. There is one signal exception to this, however. Desperate to find any meaning for the Second Amendment other than that it guarantees ordinary people freedom to choose to own firearms, 20th Century gun control advocates seized upon Anti-Federalist arguments against the military and militia provisions of the Constitution. Without any evidentiary support whatever, gun control advocates baldly claim that these Anti-Federalist arguments against ratifying the Constitution convinced or forced Madison to propose the Second Amendment. In sum, they claim that the Second Amendment was not a guarantee of the right to arms but rather a modification or retrenchment on the military-militia provisions of the original Constitution.
This claim fundamentally misconceives what both the Anti-Federalists and Madison were about, as well as ignoring the political background of the Bill of Rights. In opposing ratification the Anti-Federalists set out two very different arguments. The first, which they sincerely and emphatically put forward , was a host of objections to specific features in the original Constitution. The second, which was a mere makeweight, was an objection not to what the Constitution provided, but to what it failed to provide – a Bill of Rights.
Ironically, popular sentiment ran opposite to this. On the once hand, there appears to have been a deeply felt popular concern for a Bill of Rights, though the Anti-Federalists themselves were only counterfeiting their concern about this. On the other hand, insofar as popular concern can be judged from legislative action, the Anti-Federalists’ objections to specific features of the Constitution just plain did not sell. Neither in the First Congress nor in the preceding state ratifying conventions did the Anti-Federalists muster a majority against ratifying the original Constitution or, apparently, against any specific provision to which they objected..
Another fact is yet more ironic and utterly refutes claims that the Second Amendment aimed not to guarantee an individual right to arms but rather to limit the federal power over the militia for which the original Constitution provided. That fact is that the impetus for the Bill of Rights came from the general populace, not the politicians. Politicians had no real concern about a Bill of Rights because everyone understood it was not going to modify any provision of the original Constitution. James Madison and Alexander Hamilton and other Federalists emphasized that while Anti-Federalists bitterly complained about it. (See below.)
The notion that the Second Amendment was aimed at limiting federal power over the militia rather than guaranteeing an individual right to arms flies in the face of everything we know about how the Bill of Rights came to be. The falsity of that notion can be exposed by a simple catechism:
1. HOW DID THE BILL OF RIGHTS COME TO BE INTRODUCED IN THE FIRST CONGRESS?
Congressman James Madison introduced it in fulfillment of his promise in the Virginia ratifying convention that he would sponsor a Bill of Rights if the Constitution were ratified.
2. WHO WAS JAMES MADISON?
The "father of the Constitution," the principal architect of its provisions – including the military and militia provisions which the Anti-Federalists so opposed. No Anti-Federalist could reasonably have assumed that amendments authored by Madison would sabotage or alter the military and militia provisions of the original Constitution which he ardently supported.
3. WHAT DID HE NOT PROMISE?
That the constitutional amendments he would write would change anything in the original Constitution. On the contrary, he repeatedly insisted that nothing in the original Constitution empowered the federal government to infringe on the rights of the people, specifically including the right of individuals to have guns. To reiterate, no Anti-Federalist could have depended on any amendments authored by Madison to sabotage or alter the military and militia provisions of the original Constitution.
The Bill of Rights had virtually nothing to do with preceding controversies over the provisions of the original Constitution. On the contrary, its provisions were largely a set of platitudes – a "mom-and-apple -pie" statement of rights in which all late 18th Century Americans believed – rights which neither Madison, other Federalists nor Anti-Federalists seriously expected the federal government to be violating any time soon.
Gun control advocates are blinded to this truth about the contents of the Bill of Rights because these advocates vehemently reject one of the rights that was basic to late 18th Century American thought and strongly expressed by every late 18th Century American who wrote on the subject. Late 18th Century Americans saw self-defense as the central personal right and the right to be armed as inherent in the right of self-defense. They got that belief from Cicero, Sidney, Hobbes, Locke, Blackstone, Montesquieu and the rest of the thinkers who were the forbearers of 18th Century American political thought.
In constructing the Bill of Rights Madison followed the recommendations of the state ratifying conventions. Though they ratified the Constitution, several of those conventions had recommended the addition of provisions specifying rights. Five conventions recommended adding a right to arms. By way of comparison, only four conventions mentioned due process, the right to assemble or cruel and unusual punishment; only three mentioned free speech and the various specific criminal procedure rights – except for double jeopardy which only two mentioned.
So where does the militia clause of the Second Amendment come in? The idea that a well regulated Militia is necessary to the security of a free State was yet another late 18th Century American platitude. Its appearance in the Amendment was not intended to limit or define the right to arms, but rather to emphasize a particular aspect of that right, to wit that by guaranteeing the right to be armed the Amendment was necessarily guaranteeing the militia’s arms because those were the arms of its members who constituted virtually the entire military age male populace.
As Eugene Volokh has shown, such platitudinous opening clauses were common in the state bills of rights of the 1770s and 1780s from whence the idea of having a federal Bill of Rights sprang. For instance, many state constitutions prefaced their guarantees of free speech or free press with declarations that this right was essential to the security of freedom in a free state. Alexander Meikeljohn might have cited such prefaces as vindicating his position that the freedoms of expression extend only to overtly political expression, not to the books of D.H. Lawrence much less those of Henry Miller or to newspaper play or movie reviews, obituary notices, etc. But few, if any, today accept Meikeljohn’s position. Nor have the state courts construing those provisions of those state constitutions held them limited by their preambles.
Despite the enormous importance the Bill of Rights has today and had in the last century, late 18th Century American politicians of every stripe greeted the Bill of Rights with a yawn. Madison himself only grudgingly gave way to Jefferson’s minimalist argument that a Bill of Rights could not do any harm and conceivably could do some good. As to Madison’s contemporary politicians, the great modern historian of the Bill of Rights, Leonard Levy, has written:
"In the first Congress Representative Madison sought to fulfill has pledge [made in the Virginia convention.] His accomplishment in the face of opposition and apathy entitles him to be remembered as ‘father of the Bill of Rights’ even more than an ‘father of the Constitution.’ Many federalists thought that the House had more important tasks, like the passage of tonnage duties. The opposition party, which had capitalized on the lack of a bill of rights in the Constitution, hoped for either a second [constitutional] convention or amendments that would cripple the substantive powers of the government. They had used the bill of rights issue as a smokescreen for objections to Constitution’s provisions on direct taxes ... [etc.]; these objections could not easily be popularized, and now the Anti-Federalists sought to scuttle Madison’s proposals. They began by stalling, then tried to annex amendments aggrandizing state powers, and finally deprecated the importance of the very protections of individual liberty that they had previously demanded. ***
"Supporters of Madison informed him that Anti-Federalists did not really want a bill of rights... [His] proposals went to a select committee [whose Federalist chairman] thought the House ‘had more important business.’... Aedanus Bruke of S.C., an Anti-Federalist, thought the amendments were ‘not those solid and substantial amendments which the people expect; they are little better than whip-syllbub, frothy and full of wind.’ ... Virginia Senators William Grayson and Richard Henry Lee, both Anti-Federalists, opposed the amendments because they left ‘the great [errors in the original Constitution] ... to stand as they are....’ Lee informed Patrick Henry that they had erred in their strategy of accepting ratification on the promise of subsequent amendments. Grayson reported to Henry that ther amendments adopted by the Senate ‘are good for nothing.’***
"But for Madison’s persistence the amendments would have died in Congress. Our precious Bill of Rights was in the main the result of the political necessity for certain reluctant Federalists to make their own a cause that had been originated, in vain, by the Anti-Federalists to vote down the Constitution. The party that had at first opposed a Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, while the party that had first professed to want it discovered too late that it was not only embarrassing but politically disastrous for ulterior purposes."
Today there is little or no controversy over such concepts as: progressive taxation; women’s suffrage; that racism is a bad thing; that the U.S. should be extremely active in world affairs. The principles set out in the substantive provisions of the Bill of Rights were equally uncontroversial to late 18th Century Americans. The enactment of the Bill of Rights in the First Congress was not the product of some super-heated political controversy like those which had been fought out in the struggles over ratifying the Constitution. The only reason there is a controversy about the Second Amendment is that on this subject many highly vocal and influential 21st Century Americans reject what seemed elementary common sense – and basic principle – to our Founding Fathers.