The Ballad of the Second Amendment – or — Gee, Thanks, Mr. Madison!

[UPDATE: Ideas sketched and stabbed at here now get boiled down in the next post, from AlterNet. Thanks to commenters, here and on Twitter, especially Bill Chapman, for helping me shape my thinking. (Not roping any of them into my ideas, however! Blogging as public note-taking? Mixed feelings about that, but …]

[UPDATE. The bottom line of this post:

1. I blame — yes, blame — James Madison.

2. But that’s not because I’m so deluded as to believe he was trying to protect an individual right to keep and bear arms!

3. And I’m not, literally, holding Madison responsible for problems he couldn’t have foreseen — I’m trying to turn up the volume — to eleven — on what I think we desperately need, in this dire moment: some grown-up perspective on the strange, bumpy, sometimes shabby, all-too-human, all-too-political processes by which our rights were first secured by our Constitution. Such perspective may be our only hope for improving matters that we actually do have the power to improve; it might help us stop “constitutionalizing” every political dispute we have. This connects with what Michael Moore was talking about on CNN the other night, and with some sort of weird madness, some immature love of fantasy, that sometimes seems hardwired into the American psyche. That’s what I talk about too.]

I had two wild Twitter discussions the other day, one a bit wilder than the other, and wild in large part because Twitter is no place to think about or clarify anything. On the other hand, it was fun, and ultimately illuminating, possibly more on the level of identifying areas of disagreement than of arriving at agreement.

And the two discussions were related in ways that go beyond the mere fact that it was I who happened to be having them. Both were about rights secured by the U.S. Constitution, but in such different ways that I’m airing out my reactions separately. This post is about back-and-forth on the Second Amendment with Bill Chapman (@classroomtools, http://www.classroomtools.com/) and John Bell (@Boston1775, http://boston1775.blogspot.com/) [UPDATE: Chapman comments below], with both of whom I’ve enjoyed a cordially shared interest in complexities involved in the American founding period. And both have been generous in promoting my books, online posts, etc.

(Thoughts on the other subject — regarding the Occupy movement, and whether the First Amendment right to assemble to protest is “absolute,” trumping all competing rights and rendering civic permit laws and “time/place/manner” regulations unconstitutional, regardless of the Supreme Court’s rulings on the matter, are coming soon.)

The Second Amendment discussion arose, I think, in the horrible context of the movie theater killings and woundings in Aurora, Colorado. The New York Review of Books posted the brilliant, benchmark 1995 essay by Garry Wills thoroughly criticizing the arguments by the gun lobby, the (then) “militia movement,” and certain sympathetic scholars that the amendment protects individual gun ownership.

I meanwhile posted a link to a freewheeling and pretty superficial blog piece I wrote last year. That was really about what I see as liberal overdetermination of the meaning of both the First and Second, in the context of liberal and conservative ignorance of the Constitution; the ignorance prevails, I think, except where people believe invoking the Constitution will aid their own cause. Then they suddenly become constitutional experts.

Anyway, on Twitter Bill Chapman was questioning some of the remarks I make in that blog post, and engaging with and extrapolating on Wills’s argument; I replied by posting some disagreements with some of what Bill was saying, both as to the purposes of the amendments as a whole and as to the founders’ understanding of the relationship between individual and state rights, etc. That Twitter-confused back-and-forth got so that Bill was linking me to Madison’s notes on the framing convention — which I don’t think he’d be surprised to know I’ve seen before! — and reminding me that it wasn’t until the Fourteenth that the protections in the Bill of Rights were extended to citizens against their states — again something I assume he assumes I already know — and I found myself getting lost regarding what we may or may not be disagreeing about. I have a feeling it’s not gun control.

So to say slightly more thoughtfully than in last year’s blog post, amid the latest but all too continuous context of gun-violence horror, what I think about the Second Amendment, and about how that amendment may be especially revealing of problems with the amendment process that played such a key part in creating us as a people:

I blame James Madison.

He never could have imagined the problems it’s given us; still, I am weary of Madison’s cleverer-than-thou politicking in writing the Second Amendment, and I resent the long-range effects of the way he went about the amendment process as a whole (the lameness of the Second can throw a nasty light on the First). Possibly unfortunately — possibly tragically — the Second can never be effectively interpreted as the gun-control people would wish. The razzle-dazzle sleight-of-hand involved in its construction, as well as the immediate social context of its creation, will forever allow many Americans to ascribe to it the interpretation Wills so brilliantly shuts down in his essay.

More to my point (and more germane to my idiosyncratic reading of the founding period as a whole): I think the problem is inherent in the amendment itself. If Madison hadn’t been trying to dupe the wavering Elbridge Gerrys of the world into believing he was addressing their complaints about the nature of American nationhood, especially regarding the federal militia power, even while in fact shoring up everything they feared, we wouldn’t have this problem.

So I’m blaming Madison for what I know are entirely unintended consequences of a disingenuousness without which, no doubt, we wouldn’t have a nation at all. Thus, I think, was a kind of intellectual dishonesty — possibly even a kind of madness, to Michael Moore’s point — woven into the very structure of American nationhood. Thanks a lot.

To say that’s not a legal argument is putting it mildly. I’m no lawyer (some will say I’m no historian). My reading of the Second Amendment is — how shall I say? — literary? psychological? rhetorical? grammatical? dramaturgical? historiographical? existential? political? prosodical?

Maniacal?

Depressive?

Regarding Madison’s notes on the debates, and per the Twitter discussion the other day, here I’ll insert my reluctance to use the term “central government” for the United States as it was being conceived in the Constitution. To me “central” implies a strengthening of a federation of states; Gerry used the term prescriptively, Madison soothingly and deceptively. I think the nationalists wanted a national government. What that means to me (Bill Chapman possibly to the contrary, in our Twitter discussion) is that many years before the Fourteenth Amendment extended Bill of Rights protections to citizens against their states, the document radically shifted the key American political relationships away from that between a federal government and its member states, and that between a citizen and his or her state, and toward that between a national government and each U.S. citizen throughout all the states. Hence James Wilson’s desperate, impressive, and ultimately overwhelmingly successful argument that sovereignty would now rest with “the people.” Hence the highly tactical subject of the preamble: “we, the people.” [UPDATE: Which Robert Whitehill, though disdained by Wills, was shrewd to criticize as preemptive: most of “the people” of Pennsylvania, Whitehill said, hadn’t yet heard about a Constitution presented for their delegates’ quick up-or-down assessment. Wills’s inveterate disapprobation for populism (which would make him a strange-bedfellow ally for Michael Moore!), and his eagerness to defeat the idiotic appeal by gun-lobby scholars to what in the event was Whitehill’s defeated position, leads him to pile on in dissing Whitehill, unfairly, I think. And I do not mean by that to imply that I agree with Whitehill on guns or anything else.]

The nationalists couldn’t of course in the event go all the way. Many features of the document involve compromise, possibly to our later grief: the unworkable proportional-direct-taxing power, later to be superseded; the concept of “divided sovereignty”; etc. But the nationalists’ goal, anyway, was to render the states irrelevant to sovereign matters by structuring the new national government to act on and be responsible to all the people.

So I’m not saying Madison was trying to craft an amendment protecting private gun ownership! I presume that was the last thing on his mind; I presume he didn’t envision an America in which gun ownership might need to be regulated. I’m saying we keep trying to force that damned amendment to make sense, and, in anti-gun terms, to make sense in ruling out private gun ownership as a constitutional right. Because of the disingenuousness involved in its crafting, and the prevailing presumptions about such rights at the time of the crafting, the amendment doesn’t make that kind of sense, and it can’t.

I have the temerity to doubt, for example, that the opening phrase must be read only as a preamble and nothing but a preamble, as Wills claims (Pauline Maier says that’s what it is too). The other amendments don’t have preambles. Wills revises them hypothetically, to demonstrate how they would look if they did have preambles, but the salient fact to me is that they don’t; they’re not parallel to the Second; the Second is in that way unique. Its opening phrase lacks the usual “whereas” of a preamble, for one thing (which would make the opening not a phrase but a clause: “whereas a well-regulated militia is necessary…”), and while the opening can of course feel like a preamble, the use (ablative-absolute?) of the airy “being,” instead of the subordinating “whereas,” prevents it from explicitly and exclusively modifying anything particular in the main clause and nailing down, beyond dispute, relationships between modifier and things modified.

The grammar is vague, that is, and I’m suggesting we consider the idea that the vagueness was deliberate. Here, I think, we see Madison’s sleight-of-hand, regarding sovereignty and the federal militia power, playing directly into the written construction and weakening clarity. Madison thought the amendment might gain credence among miltia-focused antifederalists, and make them think he was really pursuing their interests, if it sported a preambleish thingy referring to benefits of state militias. Yet he was reluctant to nail anything down, because he didn’t want, on the one hand, to open the door on contradicting the hard-won federal militia power in the main body, and he didn’t want, on the other, to underscore that federal power too clearly for antifederalist comfort. His tactical resort to a “being” construction means the phrase leaves its own nature ineluctably in doubt. It worked. The damned thing was ratified.

That inherent confusion connects with another problem I sniff in the amendment: Madison’s tendency, even when privileging, in this case, a state power over an individual one (subordinated in this case to the federal power anyway, as Wills shows, so not really much of a state power!), to move rights into the hands of “the people,” and out of the states’. It’s a “right of the people” that Madison gives us in the Second — even as he also seems to refer to a state power — and I think Wills is forced (by Madison) to work too hard to support a claim that whereas in the Fourth, “the right of the people” does refers to individuals, in the Second it doesn’t. That’s trying, heroically, to make sense of something not intended to make sense. If Garry Wills can’t do it, nobody can. Sadly, perhaps, “the right of the people” can mean lots of things, and it always will.

And unlike some other writers, I can’t see the founders as routinely equating “the people” with “the states” — quite the contrary, in fact, since shifting the source of sovereignty away from the states, and to “the people,” is expressly how Wilson, during the ratification debates, justified the national government’s accession. In the Tenth, the Constitution refers to “the states or the people”: a distinction, I think, not [UPDATE: at least as much as] an equation. State sovereigntists may have been induced by Madison to read “the people” in the Second to mean “the states”; they thought that way anyway. But it’s by no means the only or even the most practical reading. And it’s not Madison’s, Wilson’s, Hamilton’s, Washington’s… .

So powerful, radical, and difficult to reconcile was the federal militia power in the main body of the Constitution, so widespread was a casual presumption in late-eighteenth-century America of a right of private gun ownership, and — crucially, to me! — so politically conflicted, cognitively dissonant, and even sometimes, yes, intellectually dishonest was the process necessary to forming the nation, that we’re stuck today with a Second Amendment whose slippery, ad hoc ambiguities will make it perpetually useful to the gun lobby.

Something we do have an absolute right to: being pissed off at James Madison.

8 thoughts on “The Ballad of the Second Amendment – or — Gee, Thanks, Mr. Madison!

  1. Thanks for this post, Bill. You’re correct, I had no doubt that you had read Madison’s notes, neither did I doubt that you understood the import of the 14th amendment. I also agree with you on the limitations of trying to discuss an issue this complex via Twitter.

    I pointed you to the debate notes for Aug 23, not because I thought you unaware of them, but to emphasize that the debate on that day focused on who would control the militias, and therefore set the context for the argument that I believe resulted in the drafting of the 2nd amendment three years later. It is clear to me that a significant number of convention delegates (and by extension of the population at large) were fearful that the national government could become tyrannical if it somehow gained a monopoly on military power. Indeed, in his opening comments to the convention on June 18, Alexander Hamilton had proposed the abolition of state militias, saying he wanted the national government to exercise sole control of military power. On July 20, Dr. McClurg wondered if the federal executive would be allowed to nationalize state militias to enforce federal laws.

    On Aug 18, the convention took up the question of who would control, train and arm the militias. The debate proved contentious, so the delegates gave it to the grand committee they’d set up to develop language on contentious issues. The committee reported on Aug 21, and their proposal was immediately tabled. It was taken up again and debated on Aug 23. Here are the relevant summary tweets I posted in 2009 as part of my daily project to summarize each convention day using Twitter:

    Some thought that allowing the nat. gov. to provide uniform rules for militia’s weaponry, training, etc., would be seen as …

    … a move towards despotism. These delegates felt it would be the same as disarming the states, and could not support it.

    Others argued that the nat. & state governments were not enemies, but both were on the people’s side.

    Taking from one & giving to the other a thing it could do better, strengthened the nation & made people better off.

    Madison argued that many states neglected their militias, and that uniform standards were necessary to secure the nation.

    The delegates voted 9 states yes, 2 no to approve the first part of the report on the militia (making laws for organizing, …

    … arming and disciplining state militias, and commanding them when employed in the service of the U.S.).

    Madison moved to amend the 2nd part to allow the nat. gov. to appoint generals; leaving the states to appoint lower ranks.

    This motion was defeated; 8 states no, 3 yes. They then agreed, without dissent, to allow states to appoint all officers.

    They then voted 7 states yes, 4 no, to allow the states to train militias following standards set nationally.

    I believe that it was in this context, and to allay the fears of those who felt that at some point a national government would move to disarm the states, that the second amendment was drafted and adopted. By doing so, Madison hoped to put to rest any fears that states could be disarmed by a national government bent on tyranny. Once the amendment was adopted, the second congress passed, and President Washington signed, the two militia acts of 1792. These laid out the ground rules for when state militias could be federalized, and set national standards for training and arming them. The second also mandated that all free, able bodied, white, male citizens purchase and maintain a musket, ammunition and other supplies for use should he be called to service.

    Here is the link to a facsimile reproduction of a report on the enactment of the Second Militia Act: http://upload.wikimedia.org/wikipedia/commons/0/00/Columbiancentinelxvii.jpg

    I have a number of thoughts about the points you make on the relationship between the national government and “the people”, but I have to run off and complete some errands right now. I’ll be back later to post those.

  2. On to “the people”. As my master teacher asked me when I was student teaching one of his 11th grade high school US History classes, “Who are the people?” As with so many words and phrases in the English language, it is nebulous, with many possible meanings. And, as with all of those others with multiple meanings, its meaning in a particular spot can only be determined from the context in which it is used.

    In the context of what Madison’s congress and national government did after the ratification of the 2nd amendment it is pretty clear what they meant by the people. They did not trust state governments to manage their militias in such a way that they would prove a reliable force that could serve as the bedrock of a national military in times of national emergency. Hence the militia acts that laid out national standards for arming and training militias. They mandated that individuals purchase weapons and supplies that met stated criteria, and attend training sessions that met national standards under the command of locally appointed commanders. The right people had (in this case individuals) was to purchase weapons specified by the national government, and to be ready to use them should they be called by government (state or national) to use them. Individuals had to have weapons, but could use them only when ordered to do so by government officials. Since these laws were passed and implemented, and as far as I can tell, not challenged. It had to be the common understanding that this is what the amendment and laws meant.

    It was only after the Civil War, when society and arms had changed dramatically, that the meaning of the second amendment came into question. By this time Madison had been dead for several decades, so it is probably unfair to blame him for ambiguity, when that ambiguity emerged only as the result of social and historical changes taking place long after his death.

    • “…the debate on that day focused on who would control the militias, and therefore set the context for the argument that I believe resulted in the drafting of the 2nd amendment three years later.”

      Totally agree.

      “I believe that it was in this context, and to allay the fears of those who felt that at some point a national government would move to disarm the states, that the second amendment was drafted and adopted.”

      Almost totally agree — but I’d put it more this way: “to allay the fears of those who felt that the national government was trying to take sovereignty away from the states.” Gerry said words to the effect of “Why not just eradicate the states, then! if the militia will be controlled by the feds?!” Since eradicating the states as sovereign powers is what not only Hamilton but also Madison, at that point, hoped to do, Madison’s effort to allay fears of that was disingenuous, in the ultimately problematic way I explore in the post.

      “…it is probably unfair to blame him for ambiguity,…”

      I know. But I do anyway. And I think in this age of total war over who gets to own the supposed holy writ of the Constitution, that it’s important — though not, literally, to blame — to be willing to see the framers as compromised. And compromised in ways that screw us up badly today.

  3. Total war makes it almost impossible to understand the nuance of the past. I agree, we’ve been involved in this war for at least the past two or three decades, perhaps for most of the past 100 years. I’m not sure I see any way out, but we must find one. Do you remember the battle over the national history standards in the mid 90s? Gary Nash wrote about it in his HISTORY ON TRIAL: CULTURE WARS AND THE TEACHING OF THE PAST http://www.amazon.com/History-Trial-Culture-Wars-Teaching/dp/0679767509/ref=sr_1_1?ie=UTF8&qid=1343776509&sr=8-1&keywords=history+on+trial He also summarized it in this great essay: http://www-personal.umich.edu/~mlassite/discussions261/nash.html

  4. I think you’ve put your finger on the underlying conflict of the founding era, the battle over sovereignty. I recall that during the convention, Madison was asked why propose a constitution rather than a defense treaty among the states. He responded that a constitution would be permanent; once ratified it would bind the states into a union that could never be broken, whereas a treaty could be abrogated at any time. Ultimately the states agreed, as most seemed to agree with the underlying logic that without a union, European powers would pick off states one by one, and soon would control the continent again. But, of course, the sovereignty issue did not disappear. It seemed to have been settled by the Civil War, but as we see by looking at today’s political discourse, the war over sovereignty continues.

    • Taking it to the next step now. Ultimately, I think that founding battles over sovereignty — while key to creating some of our strangest problems — are subordinate to (and partly explained by) a founding battle over finance and (ouch!) class. That’s a very particular battle, hidden from us by our best historians, a battle between founding elites on the one hand, who warred internally over sovereignty (nationalists v. antifederalists); and founding populists on the other, less well known (because hidden from us by our best historians!), yet to elite founders of the time, across the political spectrum, very well-known, and very dangerous, because of their desire to use government power to devalue debt and equalize political power.

      All of that is the subject of my forthcoming book — so some readers may have already heard more than enough about this — but I’m happy to have a chance to air issues out here. I think we get hypnotized by philosophical arguments at the framing convention, and we ignore the prevailing economic context, raging not only outside the doors of the convention but actually inside the same State House itself, via the radical PA assembly upstairs, in which the framing constitutional arguments took place.

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