Posted on 08/23/2007 12:31:23 PM PDT by tpaine
The Second Amendment as a Window on the Framers' Worldview
(Glenn Harlan Reynolds)
I won't waste readers' time by revisiting the points offered by my coauthors here: I too find it beneficial to teach the Second Amendment as a way of focusing on the Constitution without dwelling on what the Court said about it last week or last year, and of addressing a subject that is of considerable popular interest. Instead, I'd like to talk about some things I do that are different.
I teach the Second Amendment as part of a fairly typical "Bill of Rights" course in constitutional law. The course traditionally emphasizes First Amendment free speech and press, free exercise, and establishment clause issues, as well as rights to privacy and equal protection. I devote three or four class sessions to the Second Amendment, and assign excerpts from historical and legal commentary, as well as the leading federal cases of United States v. Cruikshank, Presser v. Illinois, and United States v. Miller. I also assign two leading cases decided under the Tennessee Constitution's right-to-bear-arms clause, Aymette v. State and Andrews v. State, because the Aymette case was relied on by the U.S. Supreme Court in Miller, and the Andrews case answers some questions that Aymette (and Miller) leave open. (I admit, I also do it because I think that state constitutional law is an underemphasized subject in law school curricula, and this gives me an excuse to sneak some in camouflaged as local color.)
One of the major themes I emphasize in teaching constitutional law is the difference between the Framers' whiggish suspicion of powerful elites (both governmental and nongovernmental) and the much more favorable view of elites that has characterized American constitutional thought since World War One. The Second Amendment provides an excellent tool for examining this issue because it embodies the Framers' suspicion of elites in the most inescapable of ways, by proposing that it is necessary for the body of the people to be armed against governmental power that might be deployed against the interest of the people.
This division of power not only within the federal government, but also among the federal government, the states, and the people -- with the armed populace serving as an ultimate check against tyranny -- strikes a dissonant note when set beside contemporary European-influenced ideas of government and society.
I find that a useful point. An important aspect of teaching the Second Amendment in class is that it tends to upset preconceptions, and to cause students to revisit things that "everyone knows." Many come to law school from undergraduate political science courses that seem to teach the federal constitution as a gloss on Max Weber, with any difference between the two to be resolved in Weber's favor.
To see that the Framers very arguably rejected as basic a Weberian notion as the state's monopoly on legitimate violence encourages students to recognize what I regard as an important point in teaching constitutional law:
that the Framers weren't late-twentieth-century Americans (much less late-twentieth-century Europeans) and that their political philosophy and worldview were in many ways very different.
This realization is every bit as difficult for Borkian conservatives as traditional liberals to accept, though naturally the Second Amendment engages them in different ways. This is made more striking through the use of the Tennessee cases. Discussion of the Second Amendment and the role of an armed populace as a check on potential tyranny inevitably produces discussion about whether -- and if so when -- armed revolution is appropriate. Tennessee's constitution, unlike the federal constitution, specifically addresses this question in two provisions, which we also study:
Art. I sec. I: That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.
Art. I sec. 2: That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
The Tennessee courts have interpreted these provisions as having real significance, using them as the underpinning of a right of privacy that has resulted in striking down the state's sodomy law, recognizing a man's right not to be forced into parenthood, and so on.
The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation.
Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy merely because such practices cause (in Bork's words) "moral anguish" among the electorate.
The connection between these two provides a good deal of interesting class discussion, and serves to confound the usual, sterile "liberal vs. conservative" split in constitutional debate. It brings home the point that the Framers were neither liberal nor conservative in modern terms, but rather a peculiar sort of traditionalist quasi-libertarian that has no real modern analog. And -- as is all too often forgotten -- they were a bunch of revolutionaries, not a collection of conventional-wisdom-spouting graybeards.
Thus, to the extent that one cares about how the Framers viewed things, one must look at the world in a different way than television shows like "Crossfire" tend to encourage.
Far to many 'quasi-Borkians' on FR forget the above truisms when they argue against our right to arms, and for the power of various levels of government to regulate/prohibit those rights
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“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.”
People can tear this apart a million different ways. Just read it the way it’s written. The more we try and analyze the brains of the writers, the trouble we get into.
For instance, the Framers of the Constitution wrote “All men are created equal”. If we want to look at the Framers minds during those times, they believed that Blacks were 3/5 of a human being and they had slaves. “All men” did not include Blacks. Nor did it include women, that’s why women did not have the vote. I think we need to stop trying to figure out what the Framers meant “exactly” because everyone will have a different opinion. Read and enforce the Constitution the way it was written, or change it.
I mean that the constitution is our supreme Law of the Land, -- and our inalienable rights are not subject to change whenever, -- just because some leftist - [or a rightist like Bork], thinks it's OK..
I’m curious about how so many people talk about the “Framers” of the constitution. I heard that this term has been used in recent years instead of the “Founding Fathers” because it offended women’s groups to use a gender specific term such as “fathers”. Yet the fact is that all of the “Framers” were indeed men. So how does it affect the self-esteem of women to talk about the “Founding Fathers” when they were men?
Because it gets their panties in a wad and they find that uncomfortable.
Well, maybe their panties are in a twist.
But seriously, how often do you hear the term “Founding Fathers” anymore? Instead, this term “Framers” is used in news reports and in speeches by politicos. I remember one time Carol Moseley-Braun was about to say “Founding Fathers” in a speech, and she stumbled around it and finally said “our ancestors” instead. To talk about the “Framers” is politically correct speaking.
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Because they want it to. I don’t know of a woman that looks at it like this though. Guess I run in the wrong crowds........my joice.
I used the word “Framers” because the author did. Normally I won’t use that word. I’ll watch it from now on though. Thanks for pointing this out.
Well then, I believe I would be that modern analog.
And your larger point is important to note. Society was very different in 1787. Society continues to change, and the best way to deal with changes and the laws is to amend the constitution and change our laws through legislation. Certain people simply want courts to re-interpret the language in the constitution to mean whatever they want it to mean.
Here's where I get off the bus with the article. It is indisputable that the founding fathers intended to leave issues like sodomy, gambling, prohibition etc to the states. The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
I think it is to marginalize the Constitution by trying to make it sound like it was just those who created it that meant/thought/felt what it says and that the rest of the population did not feel/think the same way.
Don’t perpetrate misinformation. The “3/5 of a person” was a compromise for the sake of proportional representation, struck between Northern states, which wanted not to count slaves for Congressional representation at all, and Southern states, who wanted to count slaves fully for the sake of representation in Congress, even though the slaves were not enfranchised citizens. The Constitution does not “regard” black people (or slaves) as 60 percent human.
I understand what you are saying. That is the problem we run into. If you want to go back and try and figure out what the Founding Fathers were thinking, you have to look at what they were doing at the time. That’s where we get into trouble. Did their slaves have the vote? No! Why? When our courts tell us what the Constitution “Really” means, we are in trouble. When the Founding Fathers said “All Men”, that’s exactly what they meant.....”Men” because they didn’t give the women the vote. That’s what I mean about reading the original Constitution.
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Jefferson, a slave owner was conflicted about what he wrote and thought, and what he did. His slaves were inherited from his father and father in law. After his death his skilled slaves were freed. Others that ran away (2 I think) he never pursued.
I firmly believe that the man who wrote "All men are created equal" truly believed that. The circumstances, and political realities and difficulties of birthing a new nation, made it difficult at that time. But it didn't make the phrase any less true.
Not true at all. All prohibitions are infringements on individual liberty. -- Do you really think they agreed that States could flat forbid a man from drinking booze? Or from carrying cards/gambling? - Hell, they enumerated our right to carry guns, - and then said in the 9th that enumeration of such rights wasn't needed.
The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
The Constitution specifies in the 10th that some powers are prohibited to States. Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
"-- The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation. --"
"-- Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy [or other vices like booze, or gambling] -- merely because such practices cause (in Bork's words) "moral anguish" among the electorate. --"
Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783. There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way. Regulating morals was a power reserved to the States.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court. At least if you care at all about what the Framers intended.
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