I often become amused and/or frustrated when I read people’s comments about “Constitutional rights” when they likely have never read the Constitution and almost certainly don’t know it’s history. People say stuff like “my right to (fill in the blank) is protected by the Constitution” when, in fact, that right is often never mentioned or implied. A few years ago Newsweek polled 1,000 Americans and found that only 30% knew that the Constitution was the supreme law of the land. In a previous post I mentioned the dismally low number of Americans who could name a single First Amendment right, who knew that the Constitution provides three branches of government, or who could name one branch of government.
But Americans still feel comfortable relying on their “Constitutional rights” when doing so supports their cause. Suddenly everyone becomes a Constitutional scholar!
“Constitutional law” is an area of study that covers what is actually written in the United States Constitution and how that document’s passages have been interpreted, primarily by the Supreme Court, since the 1790’s. Anyone familiar with this body of law knows that 1) much of the Constitution is vague and inapplicable to contemporary society because it was written in a different era (it requires states to pay debts using gold or silver coin, for example), and 2) the Court has interpreted the document’s passages thousands of times in the last 220 years BECAUSE those passages are vague and inapplicable to contemporary circumstances.
Here are a few examples of Constitutional passages and how they have changed:
The first amendment in the Bill of Rights protects freedom of speech, press, religion, assembly, and the right to petition the government for redress of grievances. Are these rights absolute? Do I have unrestricted freedom of speech and religion, for example? Obviously not.
- I have freedom of speech but that doesn’t mean I have the right to slander another person’s reputation. And as stated by Justice Oliver Wendall Holmes, freedom of speech does not give me the right to yell “fire” in a crowded theater.
- I have freedom of religion but I cannot use that freedom to justify smoking marijuana or ingesting peyote in my religious ceremony or to justify human sacrifice.
- I have freedom to assemble but that doesn’t give me the right to block busy streets or sidewalks or to damage property with my assembly.
This Constitutional provision protects us from “unreasonable search and seizure”, meaning the government must have a warrant to search our property. This was written at a time when almost all property was fixed in a certain location, so our houses were easy to identify for search. But:
- The authors of that provision could not have imagined automobiles, trains, airplanes, or other such “movable property” that can be hundreds or thousands of miles away before a warrant can be secured and served.
- The authors could not have imagined searching through someone’s urine for illegal drugs as a form of search.
- They could not have imagined using drug sniffing dogs to find illegal substances being transported in cars or luggage.
- And using airplanes or helicopters to search for marijuana fields was beyond the authors’ comprehension.
This passage protects Americans from “cruel and unusual punishment” at the hands of the government. The authors could not have imagined waterboarding, over crowded prisons, refusing meals to inmates, or contemporary forms of torture. The authors probably had things like the rack and thumb screw in mind (of course those were pretty nasty as well). The Court has expanded the 8th Amendment to prohibit any severe punishment that is inflicted arbitrarily, so it has been used to prohibit some forms of execution, overcrowded prison cells, denying prison inmates adequate food, etc.
I could continue because almost every major Constitutional passage has been interpreted over time to make those passages conform to contemporary circumstances.
Which brings us to the 2nd Amendment:
“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”
Before I begin I should let you know that I am a gun owner and that I enjoy shooting; mostly shooting “at” skeets and targets because I tend to miss more often than not.
There is little doubt that when the 2nd Amendment was passed the authors intended for every citizen to have the right to possess firearms because all citizens could have technically been a part of the militia. Since there was no real standing Army that was the way we defended ourselves against invasion.
There is also little doubt that many of that period’s leaders wanted an armed citizenry as protection against an overzealous or oppressive government. Richard Henry Lee said “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” Being taught how to use firearms was also something the Founders expected.
But…here is another Constitutional passage that is often overlooked by those arguing against gun control.
“The Congress shall have Power … To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
Why is this important? Because the Founders stated that standing armies could only be authorized for two years but a Navy could be “maintained”. They knew that a Navy was our first line of defense against invaders but a standing Army could be used to oppress the people. So their intent was for a militia to serve the purpose served by an Army (except in extraordinary circumstances when an Army would be formed). And the militia’s responsibility was executing laws, putting down insurrections, and repelling invasions that got past the Navy. They wanted to be certain no Army could oppress or suppress the public. They also wanted to be sure that all able males owned a gun for the purpose of putting down insurrections (there had been a few by that time) and repelling invaders.
The 2nd Amendment was not intended to give citizens the right to own weapons for personal self defense.
Also, as the well known argument goes, the weapons the Founders had in mind were mostly flint locks, blunderbusses, and single shot carbines. They were not the rapid fire, high caliber weapons capable of killing 58 people and wounding more than 500 in eleven minutes. I’m fairly confident the Founders NEVER considered this possibility.
So here is the question:
If we know freedom of speech, search and seizure, cruel and unusual punishment, freedom of the press, freedom of assembly, freedom of religion, and every other Constitutional provision of the Constitution (many such as the Commerce Clause, the Guarantee Cause, the Presentment Clause, and countless others too complicated to discuss in a 1200-word blog post) have evolved over time to meet contemporary circumstances, why is there resistance among some Americans to doing the same with the 2nd Amendment? There is absolutely no doubt the Founders’ view of “arms” was quite different from those available today.
Not evil just wrong. I sorry you got this one so wrong on the 2nd Amendment. Let me know how big a rebuttal you need. The founders were well aware of massacres and multi fire weapons. The maintenance of arms (guns you can tote around) was intended to be the birthright of all free men. Political economist and politician Tench Coxe nailed it in his letter to Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1) when he wrote “Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…” U.S v. Miller (1939)made it clear if any firearms were protected by the 2nd Amendment, it was those suitable for militia, ie. military use.
I will agree that some things are left less than clearly defined in the Constitution of 1789, but for the most part it is clear and applicable to today. Judges to gain power and (it started a long time ago) pretend it is obscure and complicated when it is not . Balancing tests are simply job security for judges. and Scalia was as bad as any at playing this game.
Freedom is risky business, but it is necessary so that we may have liberty. As Tolkien wrote “It’s a dangerous thing going out your front door Mr. Frodo.”
P.s. Ever seen a Puckle gun? It was a revolving machine gun patented in 1718?
Thank you for the thoughtful comment. Just because we disagree on an issue doesn’t mean one of us is “right” and the other is “wrong”; it just means we disagree. There are numerous quotes from the founding period and beyond that may be used to support one point of view or the other.
And I think you may misunderstand the point I was attempting to make. I do not want to disarm the public. I just want to focus on the 2nd Amendment’s “well regulated” requirement. I’m pretty certain you and I disagree, but I’m also fine with that.
You are correct that numerous Constitutional passages are beyond interpretation (qualifications to hold office, length of terms of office, who may vote, prohibition on taxing exports, income tax, etc.) but a large number are open to almost endless interpretation. Even ones that seem straightforward such as the Article II provision making the president Commander in Chief. This was written with George Washington in mind but I doubt modern presidents want to read it in such a way that it requires them to actually lead the troops (though we might have fewer military conflicts if they did!). And even this seemingly straightforward provision has required interpretation on numerous occasions because some presidents have used it to justify all sorts of extraneous actions such as seizing private property.
As I said, I really appreciate you taking the time to comment. I doubt you and I would ever reach agreement on the 2nd Amendment and other controversial issues, but an opportunity to disagree in a civil manner is what this blog is all about.