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.