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. Here’s someone arguing that the phrase is “absolute.” I know this term from the “ablative absolute” in my days struggling with Latin (or struggling against 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 — the only modification occurs within phrase itself — we’re left to wonder what the hell it does do. Maybe everything. Maybe nothing. And that’s not helpful, James Madison.

Anyway, if you removed that (to me extragrammatical) 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 to imply that there wouldn’t be any need to establish a regular army in the United States. Or at least to suggest that any such institution would be kept 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. [UPDATE: And in that sense was, as written and ratified, totally disingenuous.]

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