The Founders’ Muddled Legacy on the Right to Bear Arms Is Killing Us
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Amid horrifying reports of American gun violence -- the latest from College Station, Texas, yesterday, and Aurora, Colorado, last month -- it's natural for Americans on all sides of the dire issue of gun control and gun ownership to invoke our founders' legacy regarding arms and rights. The Second Amendment to the U.S. Constitution famously asserts a "right of the people to keep and bear arms." Determining what the founders meant by that right has long seemed critical to winning arguments for or against gun legislation.
But that’s a slippery slope. Any serious effort to address whatever lies behind the astonishing rate of American gun violence should really begin by criticising the founders’ contradictory stance on this issue, not appealing to it.
Paul Ryan, the presumptive Republican nominee for vice-president, who champions rights of gun owners, believes that the U.S. is unique for having been founded on the idea that "our rights come from nature and God, not government.” Ryan's attitude reflects a pervasive desire, across the American political spectrum, to ground current political positions in what many Americans see as absolute rights, protected for us by our founders in the U.S. Constitution.
Unfortunately. on the right to bear arms, the founders did not say what they meant, and did not mean what they said.
A Little History
The Second Amendment has produced cognitive dissonance and a lack of candor regarding the relationship between liberty and arms. The resulting confusion has enabled us to indulge in a deadly mix of immature fantasy and apodictic certainty, disconnecting us from reality to a degree that we can no longer, putting it mildly, afford. A more grownup and realistic confrontation with the process that gave us our constitutional rights--bitter medicine, perhaps--might be a precondition to curing what seems to ail us so desperately.
The realpolitik in which the Second Amendment was framed, during the first U.S. Congress of 1789, involves some unedifying but illuminating features. The amendment was a response to the federal government's power over state and local militias, as set out in Article I, Section 8, of the Constitution. That provision had been among the most hard-fought at the Constitutional Convention of 1787. Delegates committed to state sovereignty feared--rightly enough--that if the federal government were empowered to control the state militias, states would lose sovereignty.
In that elemental debate lay the beginning of a perennial American disingenuousness regarding arms and rights. Delegates led by James Madison wanted to create a national government, directly acting on and protecting all citizens, throughout all states. To achieve it, they had to play down how entirely they wanted it, how nearly utter the states' loss of power would be. Madison's convention notes show Madison himself, along with other nationalists, minimizing the impact of the federal militia power in order to soothe certain delegates' fears of losing state sovereignty.
As we know, the nationalists got what they wanted. Despite concessions to their opponents' ideas about state sovereignty, we became a nation. And critical to that achievement was the constitutional provision giving the federal government control of states' military institutions.
So when amending the Constitution, Madison continued to prevaricate. Former antifederalists in Congress and the state legislatures still resented the federal power to control militias; they were hoping to use the amendment process to regain some military control and thus retain some sovereignty. In the Second Amendment, Madison tried to defeat those hopes by placating them without really addressing them. The amendment gestures vaguely at state sovereignty in a way intended to make little practical sense.
We argue fiercely today about the intended relationship between the famous opening phrase ("A well regulated militia, being necessary to the security of a free state,") and the famous main clause ("the right of the people to keep and bear arms, shall not be infringed"). But it's fruitless to try to nail down that relationship, to hope to prove for good and all that the opening phrase is or is not a preamble, or that a preamble does or does not determine the meaning of a main text, or that a "being" phrase means something different from or identical to a "whereas" clause.
The sentence is weak. The weakness is deliberate.
Madison couldn't afford, on the one hand, to let the amendment seem to contradict the hard-won federal military power in the main body. He couldn't afford, on the other, to underscore too strongly for the states' comfort the overwhelming nature of that federal power. He seems therefore to have resorted to a preamble-ish-like phrase (others in the first 10 don't have preambles), referring to supposed benefits of state militias, but resorting to the loose “being” construction -- technically a kind of "absolute" phrase that modern English avoids, for good reason -- that has left the phrase's grammatical relation to the main clause permanently in doubt.
And even as the amendment's opening phrase refers to a "free state," its main clause refers to a "right of the people." In 1789 Madison was still trying to move sovereignty away from the states and locate it in what the Constitution's preamble calls “We, the people" -- citizens of the whole United States. Some today who favor assertive gun laws follow the historian Garry Wills' famous argument that the opening phrase refers to a state power, not an individual right, and that whereas in the Fourth Amendment, “the right of the people” does refer to individuals, in the Second it doesn’t. Meanwhile, defenders of a right to private gun ownership insist that when the founders said “a well-regulated militia," "a free state," and "the right of the people," they simply meant that private individuals must remain armed against potential tyranny.
However well or poorly such arguments are formed -- Wills' is exhaustively well-founded and logical; many of the gun advocates' are not -- both sides in the current gun-rights debate are trying to make sense of something intended by its author not to make that kind of sense. Madison was not trying to protect a right to individual gun ownership. He was trying to conjure a mood of grudging, semi-coherent consensus, to establish nationhood. To that end, he denied real divisions and real effects and wrote the denial into founding law.
We must learn to manage, somehow, the unintended consequences of founding politics. To that end, we must face up to them. Without the nationalists' smoothness -- even their slipperiness -- at the constitutional convention and during the amendment process, our nation might not have come into being. Neither Madison nor any other founder could have envisioned the modern uses that the Second Amendment has been put to, or that arms have. For political reasons having little to do with our struggles today, the founders incidentally built a murky confusion around the relationship of guns and liberty into American culture, a confusion that stunts, all these years later, much-needed public discussion of what has long since become a deadly national problem.
To begin to free ourselves from incoherence, to begin thinking publicly about how we might drastically reduce our penchant for gun violence, we must face the stark fact that in this case, our founders don't have much help to offer us. We're on our own.