History, politics and law are all tangled up in contemporary court interpretations and public understanding of the Second Amendment, and politics is the greater part of the mix these days.
Last week, I wrote that we’ve so misread the amendment that maybe we ought to get rid of it. That’s certainly not on the horizon, but the idea drew a strong response and suggested to me that a review of the amendment’s history might be helpful. (Some of the responses also reinforced my belief there are many people who should not be allowed anywhere near a gun. What does racist name calling have to do with gun rights anyway?)
One theme that ran through comments supportive of unrestricted gun-ownership rights was that it is necessary for individuals to own guns to protect themselves against both crime and the U.S. government, and that the framers of the Constitution intended for the amendment to protect that individual right.
That’s a new way of reading the amendment.
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I heard from Michael Schein, an attorney who handles appeals and who taught American legal history for 15 years at the University of Puget Sound and Seattle University.
Don’t blame the framers, he wrote. “For 217 years, the law under the 2nd Amendment was that it only protected possession or use of a firearm by ‘well-regulated militia’ forces. …” It contained no right of personal self-defense until 2008, when the Supreme Court in a 5-4 vote brought that interpretation to its ruling in District of Columbia v. Heller, which limited the District’s gun-regulation law.
Wednesday I called Schein, and we talked about the amendment’s history and current interpretation. “It’s heavily politicized and wrapped up in people’s emotions, so it’s difficult to get to the facts underlying it in any objective way,” he said.
The Constitution was written to create a more effective federal government, but some people worried the government would trample on the rights of states and individuals. The Bill of Rights was intended to mollify them and make ratification of the Constitution possible. Some were particularly concerned that the federal government would form a standing army, and they wanted assurances that state militias would be in a position to fight against such an army if it came to that.
James Madison was tasked with drafting the amendments. Some of the states had asked for a personal right in one amendment, but he didn’t include that. Instead he used a version of Virginia law that dealt with militias.
The final version of the Second Amendment states: “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.”
For most of the country’s history, the Second Amendment rarely came up, and when it did, courts didn’t see it as protecting an individual right.
Also courts interpreted the Bill of Rights as restricting only the federal government until the Civil War, Schein said.
After the Civil War, Congress realized some states weren’t guaranteeing the rights of all citizens. The 14th Amendment made states also accountable for ensuring the rights of citizens. It also was intended to protect the right of formerly enslaved Americans to own guns for personal defense.
The Supreme Court in 2008 ignored previous rulings involving the Second Amendment. The majority reinterpreted the significance and meaning of the first four words, and it did so because of its political leanings, which is not uncommon in the court’s history.
“Constitutional law in America is a form of expression of politics,” Schein said. A ruling can’t ignore politics, but it shouldn’t be driven by politics, he said. He believes the Heller opinion was driven by politics. “The intent of the framers of the Second Amendment is stated in the preamble of the amendment, ‘a well-regulated militia.’
“The Supreme Court” he said, “has changed that meaning for political purposes based on history that no reasonable historian agrees with.”
I’ve just read a new book by Michael Waldman, president of the Brennan Center for Justice at New York University School of Law. The book does a great job of exploring the history of the amendment. It’s “The Second Amendment: A Biography,” and will be in bookstores beginning May 20.
Schein said that because the ruling in Heller was 5-4, it’s always possible a change in the court’s makeup could bring a change in interpretation of the amendment, but even without that, there is room for regulation by state and local governments that want to reduce bloodshed involving guns.
Gun regulation is actually enshrined in our history, he said. Lots of communities regulated firearms. Tombstone, Ariz. restricted the carrying of deadly weapons in town, and before that, Boston had a law that people couldn’t carry a gun loaded with powder into a building.
Just Tuesday, the Tacoma City Council passed an ordinance requiring background checks on all gun sales at gun shows on city property.
With or without the Second Amendment, nothing in the Constitution prevents private gun ownership, or reasonable regulation of guns. The balance is a matter of politics.
Jerry Large’s column appears Monday and Thursday. Reach him at 206-464-3346 or email@example.com