Original Intent, the Second Amendment and my nerdy love for James Madison

James Madison Memorial, Library of Congress, Washington, DC

James Madison Memorial, Library of Congress, Washington, DC

James Madison, father of the United States Constitution and co-author of the Federalist Papers, once said in a letter to Judge Roane (Virginia judge and member of the Virginia House of Delegates),

It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms and phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate and settle the meaning of some of them.

Or to put it in current, less founding father-y language: The US Constitution is necessarily vague and will need to be continuously interpreted throughout history.

Madison knew from the outset that anything that was written in the Constitution would have to be interpreted through the lens of the current period in history.  While I know better than to speak for the “founding fathers” as though they were of one unified opinion, in this they were mostly in agreement.  The Constitution would need to be a living document.

Of course, that idea is still the source of much debate.  (Interestingly similar to the debate about how literally we should take the Bible, really.)  But let’s assume for a moment that we SHOULD interpret the Constitution using original intent.  (We shouldn’t.  But let’s do it anyway.)

What was the original intent of the Second Amendment?

The text of the ratified 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.

Most people understand this to mean that citizens should be permitted to arm themselves for their own protection.  We often think about the needs at the time of the ratification of the Constitution – protection against Native American attacks, protection against wildlife, the need to hunt for game, etc.  Many people understand, correctly, that this was also an intent to allow the citizens to protect themselves against tyranny, based on the phrase “A well regulated militia being necessary to the security of a free state…”

What is misunderstood, however, is that the original intent of the Second Amendment was to appease the groups of Americans who opposed any sort of “standing” army.  A very large contingent of Americans believed that the United States should have no permanent, regular army or armed force.  They believed that protection of the new nation should be in the hands only of state-based, primarily volunteer, militia.  To many, an army that was funded by the central government was the very core of tyranny.

Madison wasn’t totally on board with that.  He knew that a central military that was funded by federal tax revenues would be necessary for viable protection of the country against foreign enemies, but like most US citizens until WWI, foresaw a very small, centralized force supported by volunteer corps when needed.  But to appease those who feared the central military, he included in the drafted Bill of Rights the specific rights for militia to continue to exist.

If you are going to go with original intent, you have to know what the original intent actually was.

I often hear arguments against any revision of gun control policy that point to the “original intent” of the Second Amendment, citing a citizen’s right bear arms in protection against tyranny.  Maybe that was true, but the original intent of the Second Amendment has been invalidated, unless you also prefer to also abolish or drastically minimize the US military.  Of course you don’t.  That’s insane.  Few US citizens today would argue for a smaller military.

I’m not in favor of abolishing the Second Amendment.  I think it has value and I think citizens do have a right to bear arms for protection.  (Yes, even “protection against tyranny”.)  I also believe, as James Madison did, that the US Constitution is necessarily a living document, requiring re-interpretation as the world evolves and changes.

 The world has certainly evolved and changed, and it is time for re-interpretation.

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