Wednesday, February 13, 2013

Historical Interpretation of the 2d Amendment

The gun-control debate is likely to be in the forefront of the news for some time to come.  In the spirit of "seizing the teachable moment" students can be directed to engage in a number of intellectually challenging and educational debates or thoughtful reflection on the relationship between law and society (using law to address social problems, public policy decision-making and the rule of law); on the legislative process (effect of lobbying, public hearings and comment); and on constitutional interpretation (2d amendment).  I always thought it odd that Justice Scalia, long known as an originalist would deviate from the language of the amendment to consider the intent of the framers in the landmark decision of DC v. Heller.

From a 2008 interview with CBS's Leslie Stahl:

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

From DC v. Heller:

If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny.
- U.S. Supreme Court Justice Antonin Scalia in District of Columbia v. Heller (2008)

In class, I often juxtapose Justice Scalia's quote with that of "Founding Father" and Revolutionary, Samuel Adams:

It doesn't seem to me that Adams was terribly interested in protecting the right of citizens to rise up and bear arms against the Republic.  In fact, I had always thought that Shays's rebellion was one of the precipitating events for the calling of the Philadelphia Convention.  When former colonial army captain Daniel Shays led an armed rebellion against the Supreme Judicial Court of Massachusetts in 1786, the federal government was powerless to respond. This deficiency fueled the fires for reconsideration of the Articles of Confederation.

In early 1787 John Jay wrote that the rural disturbances and the inability of the central government to fund troops in response made "the inefficiency of the Federal government [become] more and more manifest."

So, far from the 2d Amendment protecting the possibility of a citizen's militia rising up against the government, I though the 2d Amendment was written to counter against the likelihood of a citizen's militia rising up against the government.

Shouldn't the interpretation of the 2d Amendment rest on actual historical evidence rather than on ideology? Students should take the opportunity to consider that gun control arguments from both the left and the right may be overlooking important historical evidence. Students should be made aware of the explanation of the 2d amendment as described in the blog post linked here. It is a position that I find surprisingly absent from the modern gun control debate, but which is an important part of the understanding of the meaning of law and constitutional interpretation.

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