Friday, March 2, 2018

Founders' Intent and the Second Amendment

One of the wonderful things about this country is that our system of laws ultimately defaults back to a document almost 250 years old, the Constitution, and that we treat it with such primacy that no law can be passed that is not consistent with its content.  Granted, Congress plays fast and loose with the Tenth Amendment, granting the Federal Government powers the Founders would have reserved to the States (e.g., overseeing education), but the document still rules and no one, save one geriatric Supreme Court justice, would argue that.

It is not a perfect document, of course, as it has needed to be amended periodically to add (and in the case of prohibition, delete) provisions that reflected subsequent realizations, but only through a heavy consensus could such amendments be done.

More importantly, though, we may be unique as a nation in that we actually determine the constitutionality of an action or law based on our interpretation of the wishes of the people who actually wrote the document.  We are blessed with copious writings of those Framers and, although they do not always agree with each other, their writings offer us an understanding of the motivation behind the Constitution's words.

When we are given more than just those words to help us make judgments today, we can better understand how to interpret them properly.

I received a note the other day from a classmate who lives and teaches in China.  He had taken a trip to Australia and visited a conference of corporate law types and professors.  He was, he said, struck by "the focus on doctrine and the absence of theory" in their discussions -- in other words, the apparent lack of a foundational "why" in Australian law.  He noted that was in total contrast to such debates in the USA.

We care about "why"; we sweat the "why."  We want to be right and we want to be constitutional.  So when we have a debate, such as is ongoing relative to the Second Amendment, it is important why it is there in the first place.

The simplistic, made-for-TV-news commentary looks at the rationale actually in the Amendment itself, "A well-regulated militia being necessary to the security of a free state ...", and declares that militias, which in the left's arguments only refers to small-town organizations such as you might have seen in 1778, are no longer necessary.  "We already have an army", they say, and since we have an army there is no need for citizens to own firearms.

But that argument misses the intent of the Amendment, both as stated explicitly and as rationalized in contemporaneous discussion.  England, our biggest enemy in the 1780s, had been held off with a ragtag but motivated army, yes.  But they were an enemy, in part, because of the authority of the Crown over its own people, not just because they had sent their military to subjugate the colonies.  Britons were not "free" then, but the colonists in the brand-new country sure wanted to be.

What is key is "... necessary to the security of a free state ...".  The enemy in that sentence is not just foreign, but domestic as well.  The Founders sought to ensure that there would be no king here, and they equally sought to limit the power of a Federal government to suppress the freedoms that a Crown or an overly-powerful central government could exert.

That is why there is a Tenth Amendment, and it is also why there is a Second.  No, we do not expect that the Federal Government will invade Utah or South Carolina anytime soon (though if they were to attack California I'm not sure I wouldn't just look the other way).  But there is also a symbolic element to an armed citizenry, the "don't tread on me" aspect that is important to us, but that the media and the left hate.

Government, my friends, should serve -- and fear -- the people, not the other way around.  If the right cannot adequately explain to the people why that is so, we can only recall the words of Benjamin Franklin, about those willing to forfeit liberty for a little safety deserving neither.

We can comfortably debate how many shells should be allowed in a magazine, or whether bump stocks should be banned, or the age at which an American can own a firearm.  But in all that, we need to remember the fundamental in our law that governs the relationship between a government and its people.

The necessary fear, my friends, needs to be of us.  By that very government.

Copyright 2018 by Robert Sutton
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