‘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 are not really investigating history, but trying to rewrite it.
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.