Framing of Constitution
The Revolutionary origins of the Second Amendment
David E. Young has a new article on the subject. Very interesting analysis of the situation in Pennsylvania, and of George Mason's triad, a concept he originated.
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More debate over St. George Tucker
A few months ago, Northwestern Univ. Law Review Colloquy published my paper on the lecture notes of St. George Tucker. One of the points I made was that the Stevens' dissent in Heller had picked up on an article by Saul Cornell that argued Tucker was a collective-rights type, and in fact this had greatly misconstrued his lecture notes.
I just noticed that Prof. Cornell has published a response in Colloquy.
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Vin Suprynowicz on the Second Amendment
Vin Suprynowicz has an interesting take on the "the Framers wouldn't have created a Second Amendment if they'd known about modern weaponry" argument.
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First Amendment comparisons
Below I discussed how the early American commentators treated the right to arms very broadly, speaking lightly of how it restrained those in power.
An interesting contrast to this is how the earliest (Federalist-controlled) courts treated the First Amendment. The jury instructions in US v. Cooper, an 1800 prosecution under the Sedition Act, are instructive. Justice Chase of the Supreme Court, sitting while riding circuit, gives a long instruction which come close to an order to convict, for some rather innocuous criticisms of President Adams. While the Act required that the defamatory speech toward the President or Congress be false, he lectures the jury on why criticism that Adams had established a large navy and a standing army are technically wrong (i.e., the army has to be re-funded every two years and thus to him is not a standing army). He adds that no free government can function if its head magistrate is left open to this manner of criticism, that criticism of the President and Congress is criticism of the jury which helped to elect them, etc. "Take this publication in all its parts, and it is the boldest attempt I have known to poison the minds of the people." "This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election."
As far as truth being a defence, well, "You will please to notice, gentlemen, that the traverser in his defence must prove every charge he has made to be true; he must prove it to the marrow. If he asserts three things, and proves but one, he fails; if he proves but two, he fails in his defence, for he must prove the whole of his assertions to be true."
Then he sentences the guy to six months in jail and a (then massive) $400 fine.
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Early constitutional commentators and the right to arms
The early American constitutional commentators are a primary source for "original understanding" (which differs from "original intent" in that it emphasizes, not what did the Framers intend, but rather what is the likely intent of the Americans as a whole who ratified the Constitution and BoR).
St. George Tucker's 1803 edition of Blackstone's Commentaries was the first American edition of that work, and generations of American lawyers trained with it. Tucker was appointed to the state Supreme Court by Jefferson, and to the Federal bench by Madison. Tucker's edition sets out Blackstone's discussion of the English Bill of Rights:
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence40 suitable to their condition and degree, and such as are allowed by law.41 Which is also declared by the same statute 1 W. & M. st. 2. c. 2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
To which Tucker adds two footnotes (bear in mind that the original bill of rights had two amendments that were not ratified by 1803, so the Second Amendment was then the Fourth):
40. 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.
41. Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, Vol. II, p. 412, "that the prevention of popular insurrections and resistence to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."
William Rawle was likewise prominent in American legal and political circles. George Washington offered him the post of first Attorney General, which he declined for personal reasons, and he served in the Pennsylvania legislature that ratified the Bill of Rights. His 1825 book, A View of the Constitution, became a standard con law text in early American universities. Rawle's view of the Second Amendment is even more robust:
In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
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. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
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John Adams and the right to arms
I've previously suggested that the most interesting and informative approach to the framing of the Second Amendment is to assume that each Framer meant what he said, and to seek explanations of why their wording differed. This is at once more challenging, and more productive, than assuming that a Framer who said the militia was essential was really saying that everyone had a right to arms, or that a Framer who said that the people have a right to keep and bear arms was really saying that militia duty (and it was a duty, not a right) is important to a republic.
So let's try that with John Adams, principal drafter of the 1780 Massachusetts Bill of Rights, which recognized that "The people have a right to keep and to bear arms for the common defense." It has two innovations: (1) for the first time, "to keep" as well as to bear, and (2) the "for the common defense" limitaton. Let's look at Adams and see why he might have added the latter provision.... [UPDATE ADDED under "read more"]
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Federalist No. 46: Madison's brilliance
In Federalist No. 46, Madison calculates (quite accurately, BTW) that the new government could support a standing army of no more than 25,000 men, and
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
A useful quote, of course. But look at the brilliance of Madison's strategy....
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1789 Senate action on right to arms
From the Journal of the First Senate, Sept. 9 1789:
"On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'It passed in the negative.
On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'
It passed in the affirmative.
On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
It passed in the affirmative."
At this point in the drafting, the Second Amendment was in fifth position. Since "passed in the negative" was then parlance for "was voted down," the first passage documents that the Senate rejected a proposal to word the amendment as "right of the people to keep and bear arms for the common defense."
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A complete understanding of the Second Amendment
Conventional approaches to the Amendment amount to: (1) cite a Framer who referred either to the militia as a State-run institution, or a Framer who referred to an individual right, and (2) argue that proves the Amendment was meant to protect only a State institution or an individual right. Oh, and (3) explain how the Framers who fall into the other class were really just sloppy with their wording. They said militia, but meant individual right, or said individual right, but were really thinking of militia duty.
But what warrant do we have for assuming that the framers -- an intellectual elite, of a period distinguished by its clear thinking and precise writing -- were just being sloppy? Or that Jefferson, who thought we should have revolutions every 25 years or so just to keep in form, and John Adams, who feared popular revolt almost as much as he feared tyranny, had exactly the same views on this matter?
What if we were to approach the Amendment in a scientific manner, assuming that when two men said different things they may have meant different things, and that our duty is to explain ALL the history as best we can?
This is a theme I began in my article "The Second Amendment and the Historiography of the Bill of Rights" (linked in the sidebar). Let me summarize it ...
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