(Usual caveats, read Parts I - IV to follow the thread.)
When we left off in Part IV, I said in Part V I’d use an Originalism approach to determine the intent and purpose of the Second Amendment (2A). In 2008, Justice Antonin Scalia wrote the majority opinion in Heller v. District of Columbia that held that an individual had a constitutional right under 2A to possess a firearm for his personal protection.
Note that the Constitution and the Bill of Rights applied solely to limit the powers of the federal government. It wasn’t until the 14th Amendment that little by little, through a process called “incorporation,” these rights were applied limit state power. So in Heller, the case involved only the District of Columbia, which is not a state. In 2010, in McDonald v. City of Chicago, the Court incorporated 2A to the states. And last year, in Bruen v. New York, the Court essentially blew its collective nose in the Constitution making it extremely difficult for states to enact and enforce gun reform laws in the interests of public safety.
In the midst of what in my view is a perversion of 2As original intent, I looked at the intent of the drafters - The First Congress in 1789. What they came up with, on its face, bears no relation to the Congress’s intent. The end product we all live with is:
“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.”
So what happened? Let me try to explain below.
Let’s start with the two events that bore on the drafting of the 2A. As promised in Part IV, we’re back to Shay’s Rebellion where a group of farmers sought to overthrow the Massachusetts state government. This called into stark relief the Confederal government’s inability to put down this rebellion. Finally it was the various Massachusetts militias that ended the conflict.
The second event well known to the members of the First Congress was the presence of a large standing army placed in the former 13 colonies. They had the lived experience of how that went and didn’t want to repeat history.
With those two tensions in mind, then Congressman James Madison, destined to be our 4th president, on June 8, 1789 offered the following Proposal that would eventually lead to what becomes the final 2A above:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” (Congressional Register, June 8, 1798, vol 1, p.427)
In historical context it is clear from the totality of the Proposal that the right to bear arms is inextricably linked to participation in “a well armed, and well regulated” militia. Otherwise, why the bit about excusing those with religious scruples from rendering military service?
Two weeks later, Congressman Roger Sherman of Connecticut offers this Proposal:
“Amendment 5 The Militia shall be under the government of the laws of the respective states, when not in actual Service of the united States, but Such rules as may be prescribed by Congress for their uniform organization & discipline shall be observed in officering and training them, but military Service Shall not be required of persons religiously Scrupulous of bearing arms.” (Upper/lower cases in the original Proposal)
(Proposal by Sherman to the House Committee of Eleven, July 21-28, 1789)
Sherman keeps the militia under state control and retains the religious exemptions. However, he inserts Congress into rule making for uniform organization and discipline so that if or when they are - in today’s vernacular, “federalized” - they’d be better able to integrate with one another. I find this unusual because the whole thrust of the Constitution at this point was to keep the federal government out of state affairs.
A couple of weeks later, for House Consideration August 17, 1798 again by Sherman:
Motion to add language identifying which religious sect to be excluded, countered by a Motion stating that the excluded person “upon paying equivalent to be established by law.”
The same day Congressman Egbert Benson of New York offered:
Motion by Benson to have the words “But no person religiously scrupulous shall be compelled to bear arms” be struck out. He hoped that these decisions should be left to the “wisdom and benevolence of the government.” Presumably he meant the state governments.
Again on August 17, 1789, this time by Congressman Eldridge Gerry (whose name lives on today as “gerrymander”):
Motion by Gerry – August 17, 1783, change “A well regulated militia being the best security of a free state…” to “a well regulated militia, trained to bear arms…”
At this point, let’s recap. All of the above have as their focus state militias. There’s a push and pull on the topic of religious exemptions, and suggestions regarding training of the militias. It seems certain that the Congress wanted to be assured that these militias would be sufficiently trained and resourced if they were called to suppress armed rebellions or were called into federal service to repel any invasion of the new nation.
So you may ask how do we know that the congressmen placed a heavy reliance on militias rather than raising a national military? I’m so happy you asked:
Motion by Aedanus Burke of South Carolina – August 17, 1783, offered an amendment to include language: “A standing army of regular troops in time of peace, is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority.” Amendment was negatived.
Second Motion by Aedanus Burke of South Carolina to add a clause to the last paragraph “That a standing army of regular troops in time of peace is dangerous to public liberty, and should not be supported in time of peace, except by the consent of two-thirds of both houses.” Amendment was negatived.
This is the first time in the House that we see concern about a large peacetime military. These are people who experienced what could happen with such a peacetime army, but they nevertheless voted down both of Burke’s amendments. Why? Because they were convinced that state militias would provide sufficient protection from threats while not creating or supporting any corruption of the federal government that might result in tyranny over a free people. And why were they convinced? That will be revealed toward the end of this Part V.
Finally, this:
HOUSE RESOLUTION – AUGUST 24, 1783
“A well regulated militia, composed of a body of the People, being the best security of a free state, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous to bearing arms, shall be compelled to render military service in person.”
This resolution was sent to the Senate for it’s consideration. But first, a quick word about one of central components of Originalism - “public understanding” at the time of drafting. Without getting too far in the weeds, the question arises about how we can know the understanding of the public about any, in this instance, constitutional provision?
Under the governing scheme of the Constitution, members of the House of Representatives was the only federal officials directly elected by the people. Senators were “elected” by the various state legislatures, the president is elected by the Electoral College, and federal judges and Supreme Court justices are nominated by the president with the advice and consent of the senate.
The members of the House in the First Congress were directly elected by the people. Thus it can be inferred that these first representatives reflected the will of their constituents. Indeed that can be proved by reading the debates over the various Articles that would ultimately comprise the Bill of Rights. And since these representatives were politically savvy and wanted to continue in public life, it is beyond reason that they would do anything that would result in failure in the next election.
Therefore, it could be well argued that the focus on the protection of state militias with the concomitant right to keep and bear arms, coupled with the resistance to the establishment of a large peacetime standing army all support the view that the Second Amendment reflects not just the public’s understanding but also the public’s will.
But as we’ll see, the Senate had some of the same concerns.
Ok, I’ll not trudge through Senate motions, amendments and resolutions like I did for those in the House. By now I hope I’ve established my bona fides to give me some credibility going forward. Within days of the House Resolution arriving at the Senate, there’s a motion to “adjoin” (i. e., add) language after the Resolution’s last paragraph attaching the Senate’s concerns about a large peacetime standing army.
This adjoined language, which as we know does not make the final cut, further evidences the maintenance of militias as the bulwarks of our democratic republic. To ignore this point, as Scalia does in Heller, and Alito and Thomas do in their subsequent cases, guts the essential meaning of the 2A and throws it in the garbage. It’s just bad history and even worse law.
Moreover, we know that the several of the new State constitutions and statutes cited the dangers of a standing peace time army, similar to those proposed in the First Congress. Like the Congress, these states (e.g., Massachusetts, New York, North Carolina) relied on their own state militias to respond to any threats to the state or the nation as a whole.
Just as the proposed warnings against standing armies being denied inclusion in the 2A, so too was the language exempting those with religious “scruples” against serving in the militias. Like the deliberate denial of language regarding standing armies, so too was the language relative to religious exemption. Based on the congressional debates, it was agreed that religious exemptions, especially given the number of possible exempted religious sects, were best left to the respective states.
We also know that language opposing peacetime standing armies was included in many state constitutions. Moreover, records of the Constitution’s state ratification conventions in 1787-88 along with the ratification processes of the Bill of Rights contain statements extolling militias under state control in place of standing armies under the control of a faraway central government.
For Justice Scalia, as he did in Heller, to relegate the 2A’s militia clause as prefatory and to ignore the issue of large standing armies is not merely bad history, it reveals his bias for the individual possession of arms and those who manufacture them.
More than anything else, Heller converted our free and open society into a free fire zone. As the Gun Violence Archive - 2023 shows, so far there have been 329 mass shootings, 20803 gun deaths from all causes, and it’s not yet July 1. (See https://www.gunviolencearchive.org/)
I was going to stop the series here but decided I needed a final post attempting to pull it altogether. So look for Part VI.
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