The Comparative Constitutions Project and National Constitution Center, have produced a slick little app that allows users to explore the language in the Bill of Rights, comparing the text from original source documents and early drafts to the language that was eventually adopted in the U.S. Constitution. It’s really interesting to see the language of, for instance, the Second Amendment evolve from this, in the December 12, 1787, Pennsylvania Ratification Convention Minority Statement . . .
That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and governed by the civil power. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.
To Madison’s original proposal in June 1789:
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.
To this, proposed by Roger Sherman, in July 1789:
The Militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but Such rules as may be prescribed by Congress for their uniform organization & discipline shall be observed in officering and training them. But military Service Shall not be required of persons religiously Scrupulous of bearing arms.
Until we finally get to the famous words we know so well:
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.
There are quite a few historical sources available for the Second Amendment, and the rest of the Bill of Rights (as well as a some other ideas that didn’t make the final cut.)
As befits the mission of the National Constitution Center, this is an America-centric app, which means that it compares the rights in the US Constitution to what’s available overseas. So, users can see which countries have banned double jeopardy, or which protect the right to a Grand Jury trial. Of course, this is just a pure textual comparison, with no value judgement offered on the part of the creators as to whether or not a right in any true sense is actually protected. For instance, I learned that Cuban citizens
…have freedom of speech and of the press in keeping with the objectives of socialist society. Material conditions for the exercise of that right are provided by the fact that the press, radio, television, movies, and other organs of the mass media are State or social property and can never be private property. This assures their use at the exclusive service of the working people and in the interest of society.
In keeping with the objectives of socialist society. Okay then.
Anyway, if you have any interest in constitutional law or legal history, you’ll easily end up killing an hour or so here like I just did.
“Clearly the language of the Second Amendment follows from the Federalist Papers [as evidenced, however minutely, by the direct duplication of the phraseology used, and as also MORE directly following from the Virginia Declaraion of Rights [18], from which it appears to be so closely tied, where Hamilton requests the populace of the, then, “American States” to accept the creation of a mutually supportive “regulated militia” (and a national army) to protect the preceding request for a compilation of State interests into a Federal entity [union] as a projection of unified power.
Hamilton, however clearly defers to the existing notion that men will defend themselves and the liberty of those among them that presumably support the liberty of the former. While he eloquently offers the yoke of linked society, he defers to the rights of the States, which, again, by directly quoting the Virginia Declaration of Rights, rest squarely on the notion that the buy-in falls to ‘all-hands’ and to the ‘last-man.’ Each being beholden to the other in society.
Hamilton was also clearly, absolutely, and unequivocally deferring to the notion of unalienable Society. Hamilton calls for the allowance of the coalition of societal agreements, in the pairings as States, to create something not-wholly separate from Society. His request for acquiescence to, and contribution to, a combined-force, that was intent on protecting that which was mutually supportive, was merely a framework for incorporated societies.
It is clearly not the intent or the supposition of Hamilton that even this force should [or could/would] avoid being abolished by the individual, when and to the extent that it failed to protect the gained and earned blessing of liberty, or when wielded in a direction, by the regulating party that attempted to dissolve Society [19] Thereby, if any party’s claim is such that: “I cannot defend you until you have surrendered the means by which you can defend yourself;” only the first half of the statement is true.
Deny history, if you dare, and be damned. One cannot also avoid, that what governing documents stemmed from the founding fathers were merely the ‘best accepted’ choice, from roughly a handful of “plans” offered to the Continental Congress. They offered the best of the tolerable. That no form of government (papering of an Agreement) could garner any greater grasp on societal pairing than what is already contained in Societal Agreement, stemming directly from physics and human nature.
_____________________________
The author here demands it noted that the idea of America, the possibility of Liberty and
the exposition of sustaining bounty, while being the sole-greatest example of human Freedom
and Liberty in known or discernable history, is in itself but momentary window dressing to the
notion of Society.” [TERMS, J.M. Thomas R., 2012, pg. 46]
“That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;”
Why couldn’t they have just used that as the 2nd amendment 🙁
My guess is that they found that wording too limiting on our liberty. Hence the very succinct wording of:
“The right of the people to keep and bear arms shall not be infringed.”
It doesn’t get any more plain as that. You have the right to do whatever you need done with your arms. Including things they never thought of. Like 3 gun competitions. Although the Pennsylvania quote says what we would like the gun grabbers to understand about the 2A, it clearly allows for some serious infringements that the 2A in its current form does not.
The whole difficulty arises out of the debate over a bill-of-rights between the Federalists and the Antifederalists. To our great sorrow, they were both proven to be correct in their diametrically opposed opinions. To the extent that a right was not enumerated it was encroached upon. To the extent that rights were enumerated, succeeding generations of federalists seized the opportunity to empower themselves to destroy UNenumerated rights.
One failure we suffer from in the succinctness of “the right” “of The People” is that the 2A makes no effort whatsoever to allude to the metes and bounds of that right to which they refer. We PotG would like to widen the right to the extent we can justify by the practices of the 18th century; the Antis would like to narrow the right to the point of wringing all the possible meaning out of it. While “the right” was meaningful to contemporary 18th century readers it doesn’t have OBVIOUS meaning to a 21st century reader who has never set foot outside Manhattan Island.
A couple of concrete examples. Most of us, PotG, grudgingly concede that it is constitutional to deprive a convicted felon or a person adjudicated insane of his 2A rights. Yet, how certain can we be that this concession is in accord with 18th century thinking? (I’m making no attempt to quibble with the utility of these as disabling criteria; just speaking to their constitutional interpretation.)
In the 18th century if you were convicted of a felony then you would either be: hanged by the neck until dead; or, neither executed nor long incarcerated. In this context, it’s impossible to say with a sufficient degree of confidence, that there was a consensus in the 18th century that you would not only be hanged, but also deprived of your 2A rights. It is equally impossible to say that if you were NOT executed that you would be deprived of your 2A rights for the rest of your free life. If your jury felt that you need not be hanged they might nevertheless have thought that you should retain your right to defend yourself from hostile native Americans or highwaymen and allowed to hunt for game.
Likewise, in the 18th century, there were few facilities for the insane. There was hardly any ability to define degrees of mental illness that would permit a judicial determination of who was too looney to be allowed arms vs. those who were merely eccentric.
We are left with little more than Samuel Adams reference to “peaceable citizens”. That standard would enable most felons today, excepting those guilty of violent felonies. It would exclude a lot of misdemeanants; i.e., people want to engage in bar brawling but never to the point of a felony.
We have a long road ahead of us to explore with our fellow citizens what the founding generation might have had in mind. It had a great deal to do with the natural right of personal self-defense. It also extended to defense against governmental tyranny.
In the minds of that generation, there really was a right to rebel against the sovereign power. That, notwithstanding that sovereignty was vested in a king who imposed his will through his armed forces. Upon reflection, in the Declaration of Independence, they flipped the abstraction of sovereignty on its head. Governments are instituted among men deriving their just powers from the governed; i.e., sovereignty is vested in The People. Could The People divest themselves of the right-to-arms by alienating that right to their agent, the government? What could this mean if rights were unalienable?
It’s a lot to digest to an audience accustomed to its wisdom being revealed in sound-bites.
The approach, here, is to trace the text from its PREdecessors to its final state as ratified as the 2A. That is traditional, and correct. Nevertheless, it is not NECESSARILY complete. Is there no other somber, considered, expression of the will of The People outside the text of the Federal Constitution, as amended?
I hasten to explain that I am NOT arguing for a living-breathing constitution malleable at whim of a simple majority of jurists, legislators or demos. Instead, I am arguing for the proposition that The People are empowered – to the same extent as 9 old [wo]men – to articulate their sense of their rights and their delegation of powers.
I’ve seen a couple of studies on the State Constitutional provisions concerning the right to arms. I was stuck by a couple of observations. First, so few of the original 13 States antedated the Federal 2A. Second, so many of the succeeding 37 States addressed the keeping and bearing of arms in their respective constitutions; occasionally, via repetitive amendments.
What are we to make of the fact that the people of NJ neglected to speak of any right to arms in their constitution whereas those of PA (many of whom were Quakers) took care to include the purpose of self defense in the Commonwealth’s constitution? What to make of the State constitutions adopted or amended after 1791?
Could we realistically understand the will of The People today through a study of the Federal Constitution exclusively while ignoring the texts of State constitutions? Suppose, hypothetically, that the right of The People to be secure in their electronic communications were protected from governmental wire-tap by all 50 State Constitutions. Could we construe this right – via the 9A and 10A – to be retained or reserved to The People from the Federal government? Mere acts of the 50 legislatures might not suffice to deduce this conclusion; yet, the inference might reasonably be drawn from the acts of the 50 sub-sets of The People in their constitutions.
States are beginning to amend their respective constitutions calling for strict scrutiny over the right to arms, whether explicitly or implicitly. Suppose that 34 State constitutions were so amended. Could SCOTUS reasonably construe a lower standard of scrutiny for the Federal 2A? To so argue would turn federalism into a pretzel.
See, for example, Kelo (http://www.ij.org/five-years-after-kelo-the-sweeping-backlash-against-one-of-the-supreme-courts-most-despised-decisions). If a Kelo-like case again reached SCOTUS, could it reasonably conclude that we The People never intended (and in any case do not intend today) to enforce the takings clause of the 5A under eminent domain?
I had argued (here in TTAG) for an Article 5 convention to secure the Federal Constitutional right to bear arms; a proposal that met with little interest. Perhaps the people of LA and MO have a better approach. The more State constitutional amendments that secure the right to arms and raise the level of requisite scrutiny, the weaker the case for infringement on the 2A in the Federal Constitution.
A Constitutional Convention is a highly fraught proposition. Everything is on the table, and we could just as easily lose the Second Amendment entirely as strengthen it. There would be no guarantees about anything else either. I think it’s too much of a risk for anyone to follow through with.
I doubt very much you would find 34 states willing to get rid of the second amendment, if that amendment even made it out of the convention. Plus you would need 38 states to go the next step and ratify the proposed amendment. Besides, in the future, there is nothing stopping Statists willing to curtail second amendment rights through the Federal level.
I don’t think the OP had much to do with a Constitutional Convention. In any case, I agree with your comment that it is inconceivable that a CC would attempt to repeal the 2A. It would be far more likely to propose to strengthen it. It had occurred to me – and my thoughts were published here on TTAG – that a State request for a CC on a Right-to-Carry amendment would be a good idea. I think the major effect of such a convention request would be to inspire Congress to draft their own amendment for presentation to the States as a means to preempt State drafting initiative.
I’m also inclined to agree with Mark Levine that our present republican form of government is not working. Congress-critters are wholly unresponsive to their constituents. If we can not impose our will via elections then there is nothing to loose by imposing our will via Constitutional amendment.
The Constitutional Convention would have been much easier if it wasn’t a musical…
During the Constitutional debates, opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. George Mason, who drafted the Virginia Declaration of Rights in early 1776 flatly refused to sign the Constitution without a formal declaration of ‘Rights’, despite promises from James Madison and others that this would be addressed in the first Congress.
In September of 1789, the First Congress of the United States proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it.
Both the first joint resolution proposing the initial amendments and the U.S. Bill of Rights as ratified contains the following — ( seemingly unknown to many, rarely mentioned, but unarguably highly pertinent ) — passage:
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED…”
One particular ‘further declaratory and restrictive clause added ‘in order to prevent misconstruction or abuse of its powers’ as follows:
Amendment II
“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.”
Iv been downloading their podcasts and listening to them while at work for the last year or so… The Q&A’s that Jeffery Rosen holds is excellent… If people get the chance to listen to them they should.. the Michael Waldman and Alan Gura, debate over the 2A was EXCELLENT. Gura OWNED Waldman in the debate..
For those who may not yet know, according to whitehouse.gov,
“The Second Amendment gives citizens the right to bear arms.”
http://www.whitehouse.gov/our-government/the-constitution
I like that idea in the first version… If you don’t want a gun, that’s fine as long as you pay a tax not to. 🙂