Justice Stevens forces me to eat my words. And I’m annoyed.

Last night, I finally had enough of the false narrative that pro-gun control liberals who support the March for Our Lives movement were out to repeal the Second Amendment.  It’s just not true, I insisted.  And I posted this:

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12 hours later, I was eating my lunch and browsing the news sites – and I see this headline: John Paul Stevens: Repeal the Second Amendment.

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Let’s start by saying, I stand by my statement that the overwhelming majority of people do not support a repeal of the Second Amendment.  (Former Justice Stevens is, in fact, a Republican.  Not that this makes any difference whatsoever, but it feels like it is worth mentioning.)

I cannot, however, deny that I owe someone an apology.

Is there any validity to Justice Stevens’ recommendation?

There is value in reading Stevens’ op-ed in the Times, which outlines how he landed at his “repeal the Second Amendment” conclusion.  It’s interesting.  Interesting, but not valid.

Stevens argues that for the first 200 years of our country’s existence, it was generally understood that the Second Amendment did not preclude the government from passing gun control legislation.  (Curious about my take on the origins of the Second Amendment?  Of course you are.)  The NRA became a powerful lobbying force only within the past 20 years, at which point “gun control” became thought of as the antithesis of the Second Amendment.

Okay, Stevens – so far, so good.

He then points to the 2008 Supreme Court decision in the District of Columbia v. Heller as the turning point – a decision that enshrined the right for an individual to bear arms for any reason – as the moment that the NRA took over the narrative.  Stevens dissented on this ruling, and continues to believe that this ruling should be overturned.

But this is where the Stevens takes a weird turn.

If the 2008 ruling was incorrect, the solution – which Justice Stevens refers to as “simple” – is to repeal the Second Amendment.  It’s a bizarre conclusion in the best of times, but in our current political environment where the country is so divided – particularly on this issue – it’s just irresponsible.  You can have whatever personal opinions you want to about the Second Amendment, but to distort the current movement into one of a full repeal of the Second Amendment is counterproductive.  It’s either an effort to deliberately derail the movement, or a naive and idealistic understanding of politics.  Real political and cultural change comes in compromises.  It comes over time.  Positive change is never achieved by making the worst fears of a large chunk of citizens come true overnight.  (The irony of that statement given the last election is not lost on me, y’all.)

I know I have some liberal friends who are reading this and thinking that I’m a sellout and a centrist.  Maybe I am.  Maybe in another ten years, I’ll look back on this blog post with embarrassment.  But for now, I’m going to remain the pragmatist, striving to find the common ground and looking for the solutions in the space between.

 

 

 

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.