(Unlike Parts I-III, this post can stand alone. But just to be safe, go and read Parts I-III anyway.)
In order to understand gun policy and the law, it’s helpful to review some history. In 1777, in the midst of the War for Independence from England, the Second Continental Congress drafted and finalized what by 1781 became the Articles of Confederation. These Articles would create a central government where most of the power resided with the newly formed states.
During the War for Independence, the Second Continental Congress oversaw the war effort, engaged in diplomacy and resolved territorial disputes with the indigenous peoples. All real power rested with the states. Once the Articles came into effect this power dynamic was institutionalized.
It soon became apparent that this central government was so weak that the experiment in self-rule would soon fail. Because states had different currencies, trade between the states became cumbersome. Add to that, individual states adopted protective policies making trade nearly impossible. And under the Articles, the Confederal government had little to no ability to regulate commerce, nor settle disputes between the states.
The national Confederal government had no ability to raise troops to respond to national emergencies. In a world where the English were smarting from losing our War for Independence, and where other European nations could easily find a way to interfere with the new North American nation, this was of no small concern.
The weakness of the central government was made clear in stark relief when a group of farmers from western Massachusetts, led by revolutionary war veteran Daniel Shays, organized to resist the state’s harsh means used to collect taxes from them. Given that the only real asset they had was their land, and because the farmers engaged in a barter economy to get the goods they needed, they had very little hard currency if they had any at all.
The Massachusetts government was dominated by a merchant class that dealt in hard currency. Thus, when the state moved to collect taxes from farmers with little to no hard currency, the farmers too often lost their land in lieu of taxes. Moreover, farmers were increasingly unable to secure lines of credit because creditors required repayment in hard currency.
The short of it was that in 1786-1787 approximately 4000 farmers, in protest of their situation, marched on the Springfield armory, with the intent of ultimately overthrowing the government and closing the courts. This was a true rebellion, with the Confederal government unable to stop it. It was left to the Massachusetts state militia and privately funded local militias to put down the rebellion.
We’ll come back to Shay’s Rebellion in Part V. (A foreshadowing moment!)
Many elites throughout the new country were aware of the problems confronting the country and the inability of the Confederal government to resolve them. In 1786, delegates from five states attended the so-called Annapolis Conference in an effort to solve some of the state practices hindering trade. Because the delegates’ authority was limited, but because there was broad agreement that other economic/political issues needed to be addressed, the Conference issued a report to the Confederal Congress seeking a broader constitutional convention to be convened in Philadelphia in May 1787.
As they say, the rest is history.
The above is not intended to be a thorough recitation of the myriad issues resulting under the Articles of Confederation. In all candor, it doesn’t rise to the Cliff Notes version of history. My goal was to point out that the Philadelphia Convention and its resultant Constitution were an effort to address, and to some extent solve, very real problems that threatened to destroy this unique effort in self-government.
In spite of the attempts from some to beatify the framers, they were not divinely inspired to draft a set of governing rules rivaling the Ten Commandments. There is no mention in any history or notes from that time of a celestial chorus inspiring the framers in Philadelphia.
Rather, these were hard-headed pragmatists who had only one goal - fix the problems that existed under, if not caused by, the Articles of Confederation. They were financiers, farmers, politicians, and one Octogenarian inventor, publisher, philosopher, diplomat for good measure. A prime mover of the convention was Virginia’s James Madison, destined to one day become our shortest president.
As evidence of their seriousness, 55 white men dressed in wool clothes met on the second floor of a building during a Philadelphia summer, with the widows closed lest someone on the street inadvertently hear their debates. Say what you want, that’s commitment.
All 13 states were invited to send delegates - 12 responded. Taking a wait and see position, Rhode Island took a pass. Never on the forefront of progress and change, then and now, it’s fitting that Rhode Island’s state motto is “Hope.” As Faulkner once wrote, “the past is never dead, it’s not even past.”
For four months, these delegates argued, cajoled, and compromised in order to deliver a Constitution under which the country could operate. It wasn’t poetic like the Declaration of Independence, instead it was written in clear prose. It was designed to be functional not inspiring.
In order to take effect, nine states had to ratify it. It wasn’t until New Hampshire ratified it in June 1788 that the Constitution took effect. As a practical necessity, All states had to ratify it. Thus Virginia, New York (love those Federalist Papers) and North Carolina followed. Only Rhode Island held out until the First Congress began work on what would become the Bill of Rights. You’re welcome America!
Well, to be honest, that’s not the only reason the Bill of Rights came into being. During the ratification process of the Constitution, it was clear that the anti-federalists opposed it primarily on two grounds: that it gave the central government too much power, and that it didn’t specifically provide for protections for individual liberties.
In any reading, it becomes readily apparent the large portions of the Constitution and the Bill of Rights are specific and clear (e.g., pretty much all of Article I, legislative branch; First Amendment “Congress shall make no law…”) and ambiguous (Article I, sec 8 “Necessary and proper” or “Elastic” clause; Amendment IX, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”).
Given that the body of the Constitution was written in 1787 and the first ten amendments written and ratified by 1791, it’s often challenging to analyze and apply concrete language written in the late 1780s to issues arising nearly 236 years in the future. One analytic approach is the “living Constitution” approach, which seeks to determine the broad principles conveyed by the words of the body and amendments to the Constitution and apply them to contemporary issues. Critical to this approach is the divination of the intent of the authors, coupled with the realities of the times in which they lived.
For example, when the First Amendment says that Congress shall make “no law,” abridging the freedom of speech, does that really mean “no law?” Clearly political speech is the most protected speech but can criticism of public officials be limited? The short answer is no. However, if someone is advocating the violent overthrow of the government, can’t government, in the interests of public safety and the preservation of governmental functions, prohibit such speech? Or at least impose a time, place and manner restriction on such speech? After all, if the public really wants a change of government they can achieve that change in the next election. A good analysis of this question appears in Brandenburg v. Ohio, 395 U.S. 444, 1969.
The second analytical construct is known as Originalism, or the “dead Constitution” method of analysis. While there are different subsets to this method (e.g., strict construction, public understanding at the time of ratification), basically the language of the Constitution means what it meant in the late 1780s or relative to its amendments, at the time of ratification. And if we don’t like it we can always ratify new amendments, like that’s easy - how’s that Equal Rights Amendment going?
If you’re thinking that in 2023 we’re living in a Constitutional regime set in stone in 1791, you’re not wrong. But that’s the world we live in today.
Since the Court expounds an “Originalism” approach to interpreting the Constitution, I think I’d like to play that game. And I’d like to play that game by discerning the intent of the Second Amendment. I’ll use the same approach that the Supremes use: discovering original intent and public understanding of the Amendment at the time of ratification!
As I have previously posted, Justice Scalia played word games with the Second Amendment. He divided the Amendment into prefatory and operating clauses. He tortures the word “arms” to the point of committing a war crime against semantics.
Antonin once said that words have meaning. I agree. I just don’t know if we’re reading the same things. I have asserted that Scalia’s rationale in Heller was misplaced. “Misplaced” is me being nice.
So there will be a Part V in a couple of days as I’m on the clock. I’ve lots to do and not much time to do it. As will be evident from the jump, by using Originalism, I think I can show that the rationale of Heller and all the cases following it is more than “misplaced.”
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