Literal interpretation of Constitution not practical

Brilliant and thoughtful men wrote the U.S. Constitution. They understood the challenges of creating a document that dealt with specific issues of the time and unforeseen issues in the future. They developed a means of modifying the Constitution to reflect change (amendments) and predicted the necessity for these changes.

If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.

We have used the amendment process as it was intended to right grievous wrongs, none more important than in granting voting rights to blacks (15th Amendment, 1870) and to women (19th Amendment, 1920).

This is why it is particularly painful and frustrating to watch both the left and the right pervert our first two amendments to their own political and ideological needs.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Leaving the discussion of freedom of speech for another essay, let us focus on "establishment of religion." Activist judges, in conjunction with atheists and secularists, have used a letter written in 1802 by Founding Father Thomas Jefferson to the Danbury Baptist Association, which included the phrase "building a wall of separation between church and state" to support their effort to eliminate God from the public sector.

No rational person believes this was the intention of the Founding Fathers. Their goal was to prevent, understandably and correctly, the establishment of a state religion, not to deny our Judeo-Christian heritage.

Religion ... [is] the basis and foundation of government ... before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.

It is a perversion of the Constitution, the First Amendment and the intentions of the Founding Fathers to attempt the removal of God and religion from the public sector. It is ridiculous and intellectually dishonest to think the Founding Fathers would have eliminated "under God" from the Pledge of Allegiance, stripped Christmas decorations from the front lawns of government buildings, eliminated Christmas parties at schools, or insisted that Easter breaks be called spring breaks.

However, the right is no less guilty for the way it distorts the Second Amendment.

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.

We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left. They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right.

Rational people can discuss how to balance our Judeo-Christian heritage with our need to avoid a modern version of Henry VIII's Church of England. Eliminating God and religion from our public and private lives is as dangerous as fostering a state religion.

The same people can discuss gun control and reach a reasonable conclusion. It is no more logical to ban all handguns and hunting rifles than it is to justify private ownership of an Uzi or fight reasonable efforts to license guns and monitor their purchase.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.

Can one generation bind another and all others in succession forever? I think not. The Creator has made the earth for the living, not the dead.

Let us, the living, work together to find common ground that makes sense for all Americans. It will require listening, compromise and a willingness to sometimes subvert our personal desires to the public good — a lesson we should have learned from our Founding Fathers.

— Scott Harris, of Thousand Oaks, is president of California: The Alpha State. E-mail: scott@alphastate.org. His blog can be seen at AlphaState.com, where his radio show can also be heard.

One of the historical contexts for the second amendment was that the common practice of monarchs and tyrants was to confiscate private firearms any time they were about to start cracking down on the population. The founding fathers knew this, had lived through this and wanted it made clear that this would not be allowed in the new nation.

I remember having a western civ class years ago and reading about various revolutions and uprisings. Every time it seemed that the governments first action was to outlaw and confiscate weapons from individuals. It doesn't take a genius to figure out why, nor why the founding fathers would want the second amendment just the way it is.

"They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right."

Uhhh, no. Seeing as Scott Harris likes to use quotes of founding fathers, I will provide in kind:

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -- George Washington

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks." - Thomas Jefferson

"No free men shall be debarred the use of arms." - Thomas Jefferson

"Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes. ... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson quotes Cesare Beccaria in Commonplace Book

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against the tyranny in government." - Thomas Jefferson

"The advantage of being armed, which the Americans possess over the people of almost every other nation...forms a barrier against the enterprises of ambition, more insurmountable than any...." -- James Madison in Federalist No. 48

"A government that does not trust it's law abiding citizens to keep and bear arms is itself unworthy of trust." - James Madison

Note that they all refer to citizens, not members of militia.

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government." -- George Washington

This is exactly right. This sentiment clearly states that the father of our country believed that the people should be sufficiently armed and trained enough to keep themselves free from all abusers, even their own government. This means the people are meant to have access to, not only the same weaponry available to the government, but sufficient quantities of said weaponry to guarantee their independence.

Machine guns and explosive ordinance should be as acquirable as hand and long guns. Weaponry beyond that would most likely be too expensive, but there still should be no restriction on it either. It is already a crime to kill a person outside of self defense, so what difference does it make if the killing is done with a machine gun, grenade, or F/A-18? If everybody has the same weaponry, equality and deterrence are maintained. Assign the death penalty for murder and remove the appeals process.

How is it that the right to kill children in the womb can be "found" in the Constitution, but "the right of the people to keep and bear arms shall not be infringed" cannot be located?

And the opinion of the landed gentry of Virginia from a couple of hundred years ago on what they intended for the words to mean should have no more impact than the opinion of you or me or any other of "We, the People" on what the words actually say. Every time we refer to someone other than the people ourselves for authority, we justify those who claim their own opinions (See Ruth Bader Ginsburg, et. al.) are the final authority.

This much I disagree with. The "landed gentry" you refer to are the authors and signators of the Constitution. The Constitution created and transferred power to the federal government from the States. Those powers were fixed at the time that transfer was made, and it is not within our pervue to modify them by simply re-defining the words.

it is not within our pervue to modify them by simply re-defining the words.

I have no intention of 're-defining the words.' Just the opposite. The words are what they are, and even the opinion of James Madison cannot 're-define' those words.

And the most important words are, "We, the People."

If someone found a long-lost letter from James Madison to George Washington saying that the word 'right' as written in the Constitution only applied to those working for the federal government, would that make it so - in your mind? Or would the intrinsic meaning of the word 'right' and of the 'people' and so on be more important than the opinion of a single man, no matter who that man was?

In matters of actual opinion, I would very much be guided by the prevailing opinion at the time the Constitution - or, through our history, the various amendments - were ratified. But in matters of plain language, the ultimate arbiter must be, "We, the People."

In matters of actual opinion, I would very much be guided by the prevailing opinion at the time the Constitution - or, through our history, the various amendments - were ratified. But in matters of plain language, the ultimate arbiter must be, "We, the People."

Can I get your opinion of what you thing the logical consequence of the following are:

Document 19

James Madison to Joseph C. Cabell
13 Feb. 1829Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

"Unfortunately there are some, including here on FR, that see the word militia and their minds glaze over. They seem to ignore the remaining part of the 2nd Amendment."

You are right and it is unfortunate. It is as if people think that the authors of the Constitution had no idea that governments will form a military. Of course the authors assumed that federal and state governments would form a military, so claiming that the word "militia" in the 2nd Amendment referred to a military branch under the command of a government, and the words "free state" referred to a state government, is simply nonsense.

Why would the authors need to verbalize in an amendment that *the people* can form a military branch in service of their state *government*? Are they saying that the state government is somehow incorruptible, and its only the federal government we need to arm against? Why would the same authors who took great pains to make sure that power was in the hands of the people first and the government second stop at state governments when handing out the single most important power? Of course they would hand it directly to the people, else, the people would never really have any power at all. Brave men just got done using firearms to free themselves from an oppressive government, why would anyone think they would make an obvious mistake that would lead to just another oppressive government. In this case, a state government who is in bed with a federal government. The authors were not stupid.

The "well regulated militia" the 2nd Amendment is referring to is a well trained, well armed *peoples* militia that can be used against *any* abuser, whether of government authority or not. To read the 2nd Amendment in any other way renders it meaningless.

Enemies of freedom are using confusion to try to remove this precious right of the people. If people really can't understand the 2nd Amendment as written, I am all for an Amendment to the 2nd Amendment. Let's clean up the language once and for all by changing it to: "The right of the people to keep and bear any and all weaponry, in any quantity, in any location, shall not be infringed, regulated, monitored, or legislated in any way. This means you."

It's a fair question, but I don't have a good answer. In short, I really have no opinion on the logical consequences of that paragraph, beyond the basic one already expressed that although I respect James Madison's wisdom, his opinion has no more authority over the actual text of the Constitution than any other citizen's.

Perhaps there is another way to look at it: Article 1 Section 8 states that Congress shall have the power, "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." That clearly establishes that the Congress has the 'literal' power to regulate commerce among the several states. Conversely, that does not give the Congress the power to regulate commerce within a state.

So, the words do establish that the power to regulate power among the several states is 'being in the same terms with the power over foreign commerce,' and if Madison is trying to draw a distinction, I don't see it.

Why that provision was added (because it 'grew out of abuse of the power by the importing States in taxing the non-importing . .') is historically interesting but not relevant. The provision in the Constitution establishes a power. That is the key issue.

The exerpt from Madison's letter may be too brief for me to capture the context, because I can't tell if Madison is trying to say that Congress doesn't really have the power to regulate commerce among the several States, or whether he is trying to make the point that although the reason for including it is different, it still has that power. Regardless, the words that matter are not from his letter, but from the Constitution.

At least, that is the position that I advocate.

By the way, I've seen plenty of evidence that Madison was not entirely satisfied with the form of the Constitution as finally ratified, and I understand and find logical his argument that including the Bill of Rights was a mistake because it implies those rights only exist if they are enumerated rather than by virtue of not being explicitly addressed by the Constitution and therefore automatically excluded from the federal government authority. Nontheless, I'm glad the Bill of Rights was included, because logic does not automatically hold sway over politicians lusting for power. I think we'd have been in much worse shape if the Bill of Rights was not explicitly included - though I fully admit that many of the enumerated rights are flagrantly violated all the time.

Not just that, but there are some that believe that the 2nd amendment means a collective right and that the states provide the individual right. See http://www.freerepublic.com/focus/f-news/1707016/posts?page=438#438 for one such person. Problem with that theory is that some states do not have clauses for RKBA in their state Constitutions (which would mean that there is no right) and some (like SC) have thier RKBA clause worded exactly like the 2nd Amendment (which would mean that the state's constititution provides for a collective right). I have provided quotes from founding fathers stating that the right is an individual right, but he just ignores them and keeps stating about court decisions (the same ones that found a right to have abortions) found that it was a collective right. This from a self professed gun owner.

That strikes me as saying that the person who wrote a particular document is no more authoritative as to it's meaning and intent than anyone else. I find that a wholly unsupportable conclusion.

Why that provision was added (because it 'grew out of abuse of the power by the importing States in taxing the non-importing . .') is historically interesting but not relevant. The provision in the Constitution establishes a power. That is the key issue.

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. "

— James Madison, fourth president of the United States and Founding Father

It seems you are advocating that we do precisely that.

Bad 2nd Amendment history. This from the official U.S. Army history:

The militia issue was also central to the shaping of the Second Amendment to the Constitution: the right to keep and bear arms. If the founding fathers recognized the centrality of freedom of speech, the press, and assembly, they also made clear those freedoms would only remain secure if the people could keep and bear arms as an ultimate check on the power of the government. The Second Amendment has been much politicized since its adoption as part of the Bill of Rights, but there is no question that the architects of our government believed that the people in arms, the militia,were the final guarantors of our freedom. Any subsequent reinterpretations of that amendment must start with the fact that our leaders, fresh from their experiences in the Revolutionary War, relied on the militia as the centerpiece of our national military establishment. The concept of the militia and the right to bear arms are inextricably joined.

In other words, the militia is not just a national guard, but "the people in arms" as "the final guarantor" of our freedoms. Plus, the Constitution elsewhere grants Congress the right to raise a standing army, which, although small, existed at the adoption of the Constitution, along with a Department of War (the Army) to run it.

The Framers understood the 2nd Amendment as at the same time an individual and a group right.

The poster you're referring to appears to believe that the States have been given the power to decide which weapons qualify as suitable for militia use. He is basing this on a Supreme Court decision. He most likely lives in a state who's gun laws and government officials are agreeable to him. He probably figures that if you don't like your state's gun laws and government officials, you should move. Fair enough.

The first problem I see is that the judicial fiat in question is unconstitutional, and just the sort of thing that the militia was put in place to counter. The second problem I see is that nothing in his thesis is preventing his state, and every other state, from becoming a state who's gun laws and government officials are disagreeable to him, and everyone else. Once this happens, there is nowhere to move to.

The authors of the Constitution, men who have referred to politicians as always evil each and every time, weren't naive enough to believe that state government would always be behind the people, and only federal government can be corrupted. Since the signing of the Constitution, politicians have been trying to take power away from the people and transfer it to themselves. They have twisted the words of the 2nd Amendment by adding things, like an act defining a militia, after the fact. Soon, they will move on to twisting the definition of a free state. So if a state isn't free, then a militia isn't necessary, right? What constitutes a free state? A judge will just have to tell us, right?

This kind of slavery to judicial rule is what enables courts to legislate away our freedom. Nobody puts judges in their place when they cross the line. The judge in the above referenced decision just wanted to do society a favor and put away an obvious criminal. Unfortunately, he misused his power in order to do so and ultimately caused a crack in the Constitution. The same thing happened in that contraception decision. With the benefit of hind-sight we now see the horrible error that's been made, and it is now up to us to correct it through the NRA and other organizations.

That silly 'it's not a weapon fit for a militia' argument is just an old gun-grabbers trick. Nobody should decide what weapons we can keep and bear, because it is only a matter of time before the decision becomes *no* weapon. The inevitable 'tactical nuke' argument that gets dragged out when this is said has no merit. The cost alone to build or obtain such a weapon is in the domain of only a handful of citizens. Citizens who are so rich and powerful that, if they really wanted to, could get a nuke regardless of laws.

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