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Monday, November 18, 2013

Revolutionary sausage

by digby

Here's a fascinating interview with historian Kevin M. Sweeney about the history of the Second Amendment which shows, once again, that so much of what we think we know is just not so:
Q: Your essay in the book The Second Amendment on Trial [forthcoming from the University of Massachusetts Press] is critical of the 2008 Supreme Court ruling that declared that the Second Amendment protects an individual’s right to own a gun in the home for self-defense. What did District of Columbia v. Heller get wrong?

A: Heller [argues that the Second Amendment] is all about self-defense, and the preferred method of self-defense by Americans is a handgun, which flies in the face of the fact that the Second Amendment was about the militia. [The decision also assumes] that the militia was an unchanging and all-inclusive organization of citizen soldiers. That was not true.

We tend to talk about “early American” as this time of no change from the 1620s to the 1800s, and homogeneous from the coast of Maine to the piney woods of Georgia. But for most of that period, a united country did not exist. Neither Delaware nor Pennsylvania had a permanent militia. Virginia and Maryland had select militias, in which not all males were expected to serve. In the 1600s, the militia was largely but not exclusively armed with the firearms of private individuals. By the 1750s, the levels of private firearm ownership went down, and it became necessary, in some instances, for colonial governments to provide firearms. Heller assumes that militia arms were all privately owned arms.

The concerns that led to the Second Amendment were not the fear that the government would go around taking people's firearms—I mean, most of these were firearms that the government didn’t want. [The founders] wanted some reassurance that states could arm the militia if the federal government did not. This is largely a debate that has been missed. But it’s clear that James Madison and many other Southerners who had poorly armed militias wanted the federal treasury to arm them.

Q: So how did those concerns transform into what we have as the Second Amendment?

When Madison drafted the original version of what became the Bill of Rights and introduced it to Congress, it read:

“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.”

The House drops the “well armed.” The Senate apparently attempts to go further: There seems to be a move in the Senate to prohibit the federal government from arming the militia, because they don’t want the federal treasury getting hit for this.

The Federalists were throwing some rhetorical bones to the Anti-Federalists. The Anti-Federalists wanted another convention to rewrite the Constitution, and they had been sort of bought off by promises that there would be amendments. There are certain rights in those first amendments—no excessive bail, trial by jury—you can trace back to the Magna Carta. But the Second Amendment, let alone the Ninth and 10th Amendments—God knows what they mean. They were just rhetorical, to quiet the Anti-Federalist critics. But I do think it’s clear that it’s about the militia. The Second Amendment is about self-defense? I just think that barely passes the laugh test.
American politics has always been about compromise between our two main factions, whatever their names are in a given moment. It often creates a bit of a mess. This one is killing people.