And Another Thing …! More on Misconstruing the Constitution: The Second Amendment

This follows up yesterday’s post on widespread ignorance of where, exactly, the Constitution separates church and state, and what amendment Roe v. Wade argues abortion rights rely on, etc. — ignorance found most significantly to me among people who are sure that the Constitution does separate church and state and guaruntee abortion rights. [UPDATE: And it precedes a further post also on the same issue.]

I just heard from a well-regarded Constititional law guy at the Cato Institute who says studies show that Americans of all political stripes revere the Constitution, but few know what’s in it — especially if you don’t count the Bill of Rights. Which is good to know, since my evidence is all anecdotal!

I’ve also noticed, anecdotally, that a lot of the same people who don’t know that religious freedom is found in the First, or that Roe v. Wade cites the Fourteenth, have a surprisingly aggressive argument to prove that the Second really doesn’t, all appearances to the contrary, protect private gun ownership. This plays into my suspicion that we revere the Constitution — or, really, pay attention to it at all — only when we think we can show that it says what we would want it to say.

There is an argument that the Second doesn’t protect gun ownership. A lot of that argument relies, very very heavily, on the grammatically vague, awkwardly cast phrase about militias and freedom that precedes the main clause. I’ve tried in my time to make that phrase participial, but since I’ve thought of it as acting as a very badly deployed kind of adverb, seemingly modifying “shall not be infringed,” and participles can’t do that, I’ve been stymied. Somehow gerundive then? I’ve wondered: Can gerund phrases act as adverbs? No. They can’t.

And now I find someone arguing that the phrase is something I’ve never heard of — and that I don’t believe should even be allowed in English — an “absolute phrase.” I should know this term, because I do recall the “ablative absolute” from my days struggling with Latin (or struggling against it), but the name of that construction is all I recall about it. This writer says it sets up what I and many others have already identified as a loose relationship between the phrase and the main clause.

Right: since the phrase doesn’t modify anything in the main clause, we’re left to wonder what the hell it does do. Maybe everything. Maybe nothing. And that’s not grammar, James Madison.

Anyway, if you removed that (to me ungrammatical) thing, whatever it is, the main clause sounds clear as a bell: government can’t disarm the people. But I once read a long and characteristically brilliant Garry Wills piece in NYRB, a million years ago, that proved to me that the amendment doesn’t really protect private gun ownership. Proved it while I was reading it, that is — the second I put the essay down, I failed to hold onto the argument, and I was again confronted by that stark main clause, which sure sounds as if it protects private gun ownership. I mean doesn’t it? If an argument, right or wrong, is so Jesuitically subtle that nobody will be able to reproduce it on their own, just as a practical matter it’s not going to withstand assault from dumbasses (like me, in this case).

In any event, I’m not saying there’s no argument to show that the amendment doesn’t protect private gun ownership. There probably is. You can argue almost anything. I’m saying that it’s curious to find supposedly erudite constitutional/historical parsing of that amendment coming all of a sudden from people otherwise unable to paraphrase the amendments at all. Just saying. Seems sort of disingenuous. “The amendment’s referring to a militia ,” they explain helpfully. “Back when they used to drill , on the public square.” Gee, thanks.

I think all of really this means that, liberal or conservative, we don’t revere the Constitution. We just want to say “constitutional” and “unconstitutional” to preempt discussion of a matter at hand. And it never works. And it’s getting tedious.

Constitution shmonstitution! As I believe Sonny Bono once said in committee. (Really.)

One of many interesting things about the Second Amendment, often overlooked, which the military historian of the federal period Richard Kohn makes clear: The real use of that opening phrase (and probably, I’m thinking, why Madison put it in the deliberately vague “absolute”) was specifically to argue against establishing a regular army in the United States. Or at least to argue for keeping any such institution small and provisional and not letting it ruin the militia system. To many Americans, militarism was historically known to justify war, and war to justify militarism, and both were used to swell executive power beyond bounds and diminish liberty.

So here’s an irony that might cut across current political divides: the Second Amendment, whatever it says, is precisely and assertively anti-militarist.

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6 thoughts on “And Another Thing …! More on Misconstruing the Constitution: The Second Amendment

  1. I’ll table the discussion of the right to keep and bear arms – I tend to think as you do, that it does talk about prohibiting the disarming of the people. There is enough other evidence to suggest it would have been ludicrous if not totally inconceivable to the founders to even suggest such a thing. A militia implies that the citizens be able to go there own guns and do their thing when called upon for the common defense.

    Federalist 8 goes into the overriding concerns against standing, “disciplined” professional armies. Hamilton uses this in his convoluted way to argue for Union. Basically, he says, if there are lot of states or confederacies bordering one another, there will be tension, and this would lead to standing armies which are prone to destroying liberty.

    This was the reason that the fledgling government only provided for a very tiny army.

    Once again, I think I have to agree with your observation on the lack of knowledge of the Constitution among those who profess to revere it, on both sides of the argument.

    The founders were paranoid about standing armies – and thought that power should ultimately reside in the hands of the people. The other founding document, the Declaration states as much, even going so far as to state that it is the right of the people to overthrow a government that has become abusive. It’s hard to do that without weaponry.

  2. I was really looking forward to disagreeing with you. Sadly, your reading is consistent with Tribe’s and other smart people and I am left without a fight to pick. Once again, “the people” really does mean just that.

  3. The Bill of Rights, and consequently the Second Amendment, come from an anomalous time in U.S. history when the founders were trying to follow through on the Whig ideal of no standing army. Within a few years, after Jefferson’s troubles with European powers and Madison’s difficulties in the War of 1812 (not to mention pressure from settlers wanting more westward expansion), the nation abandoned that ideal. But clearly the Second Amendment reflected it.

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  5. Mr. Hogeland,

    I just discovered your blog and am enjoying it.

    Regarding the right to own a gun, I recommend this piece in by Akhil Reed Amar, a constitutional law scholar at Yale. I love his book “The American Constitution: a Biography,” and this piece continues that brilliance.

    To sum it up, Amar contends (and I agree) that it is the 9th Amendment that really should be used to protect gun rights. Madison, after all, originally feared a written Bill of Rights since such a document could be twisted to mean “these are the only rights you have–no more” (which, ironically, seems to be the position of the Originalists on the SCOTUS). American colonists as far back as the mid-1600s in Virginia clearly had the right to bear arms, since they had to defend themselves from Indian raids. And not as a “militia” either–simply as English subjects living on the frontier. They assumed they had this right–therefore, they did.

    Of course, if Amar is right, then this unenumerated right is not absolute, any more than any other right. The community has the right to decide what the limits of this right should be, just as we do speech. If we could debate gun control on this non-hysterical pragmatic level, I think we’d be way better off.

  6. Chris – reading the article you reference, your argument reads (to me) like “we can’t infringe the liberties we want to by arguing against the plain language of the second, but if we shift the argument away to the ninth, then we might have a lower hurdle to jump.”

    Is that actually what you’re saying?

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