Flexible vs. Original?
Constitutional Originalism: The principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment.
What were the original intentions of our founders? Is there a way to know 230 years later?
Actually, there is.
The purpose of the 2nd Amendment arose out of concern over the existence of a standing army. The Founders felt those who controlled a standing army held too much power, that the country risked the falling under the influence of military dictatorship. This feeling was widely supported in European nations in the preceding few centuries where military dictators controlled a majority of Eurasia. The discussion by the Founders revolved around whether or not to even have a standing army, and if not, how could we protect ourselves from hostile nations?
One of the best sources of Constitutional Originalism are the Federalist Papers, a series of essays describing the founders thoughts and opinions prior to the drafting of the Constitution in 1787. A majority of the Federalist Papers were written by Alexander Hamilton and James Madison.
It’s always best to go directly to the source.
If we look at Federalist 29, Hamilton suggests having no army, instead, having a citizen’s army of militia that was well regulated. He went on to define well regulated:
- That its regulations be done “according to the discipline prescribed by Congress.”
- That this discipline would be performed completely and with “great regularity.”
- The makeup of the militia would be by State, but held to National standards.
- That in the case of invasion, the State militias would come under single leadership at the federal level.
Per Federalist 46, Madison had a slightly different view, believing a citizen army was a partial answer, therefore a Federal professional army was necessary, but limited to a size that could easily be defeated by the State militias should a despot come to power. Madison was also concerned that a full time army would be counterproductive to the economy of our country (go figure).
Yet nowhere do we find in these discussions by our real Founders, a sense of free weaponry made available to the populace. This is important. Weapons were only discussed in context of protection against foreign invasion and major insurrection, and even then only with a very high level of regulation and training in terms of military protocol. It is right here were we got off track with the 2nd Amendment, going on to misapply it.
Now, in 2016, it turns out hindsight is 20-20. Along the way we decided to ignore our Founders and build the largest and most powerful standing army the world has ever known, and we gave the keys to this army to our President. This is a huge slap in the face to both Madison and Hamilton. In our defense, we mostly did this out of necessity during two World Wars. Yet since we have done this, we have made the de facto decision not to have a trained militia, rather to take the risk and create an army no individual state (or group of states, or ALL the states) could ever withstand.
Meaning what? — Meaning the 2nd Amendment no longer applies. At least not the way we have haphazardly implemented it. We have decided against Constitutional Originalism.
I know many people don’t want to hear this, but the 2nd Amendment has been made obsolete. It needs now to be revised or removed outright.
It is at this point where we upset the “originalist” apple cart of Antonin Scalia and Ted Cruz.
Read Federalist 29 and 46.
Here’s the most interesting part, Article 1, Section 8 gives us a detailed description of the military and militias, giving Congress the power:
“12 To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 13 To provide and maintain a Navy; 14 To make Rules for the Government and Regulation of the land and naval Forces; 15 To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 16 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
~~ Constitution, Article 1, Section 8, Clauses 12-16
Lastly we come to the Heller decision of 2008. It wasn’t until the modern era gun ownership became decoupled from the association of the militia. The NRA had been waging an intense 30-year campaign to secure an individual’s right own guns by winning over members of the public, high-level politicians, and, ultimately, the Supreme Court. Mission, to an alarming degree, accomplished in a hard-fought 5-4 decision headed by, you guessed it, Antonin Scalia. In a most ironic twist, Scalia somehow disconnected himself from the concept of “originalism” and broke to the winds of partisanship.
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect—a view at odds with history, the fundamental rules of Constitutional interpretation, and the settled legal consensus for many decades.
Rather that boring you with the process of Constitutional interpretation, I’ll merely provide you with this wiki link. In summary we follow the “Rule of surplusage” where “Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred” or all parts of the Constitution have equal merit – nothing is redundant or meaningless. Do your own reading starting from here.
So a few things about this…
First, a standing army is unconstitutional if in place for longer than two years. The Navy and National Guard (our State militias) however, are both good to go.
Second, notice how the militia is to be trained enough to “repel invasion?” That’s some serious training, yet our current interpretation seems more like a free-for-all that was never intended by the Founders.
Third, the Heller decision officially altered the meaning of the 2nd Amendment in a partisan manner 230 years after the Constitution was adopted.
Finally, remember the Bill of Rights was to lay out INDIVIDUAL rights. Since it was written during the time we utilized a true militia, and since this militia would be heavily trained, it had to be listed in the Bill of Rights so the militia could exist. This was the only reason the 2nd Amendment was written, not so everybody could walk around strapped because it’s fun.
In other words, because we no longer use a militia (except for the National Guard) the 2nd Amendment is obsolete and misapplied. This fact is very neatly described right in the Constitution itself.
Let us shit or get off the proverbial pot. We need to either follow the concept of “Constitutional Originalism” and keep guns only in the hands of the National Guard –OR– have the ability to decide as a nation to modify the Constitution to accurately reflect the desires of American society.
There is no constitutional basis for the gun free-for-all which currently exists.