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Opening Arguments

Blowing constitutional smoke

Why is that people who usually get all teary-eyed about the Constitution as a living, breathing document suddenly discover the beauty of original intent when if comes to the Second Amendment? They can always find emanations from penumbras that let the Constitution allow or forbid whatever it is that they want allowed or forbidden, but let them stumble across "a well regulated militia being necessary to the security of a free state . . ." and they just can't praise the state of mind of the founders highly enough.

That phrase, which comprises the most unfortunate 13 words in the Bill of Rights, helps illustrate the point I was trying to make in an earlier post about the death penalty, in which I admitted being a constitutional literalist who was, nevertheless, more interested in the plain language of the document than the intent of the people writing it. Certainly, the founders thought the death penalty was justified; but if they had wanted us to regard it so for all of time, they wouldn't have tossed out the phrase "cruel and unusual punishment" without defining it. This elicited a response from Douglas Wellman to the effect that the founders might not have expressed themselves clearly on death penalty/cruel and unusual, but if you read the Federalst Papers you will have no doubt. See original post and Doug's comment here.)

OK, but that just clears up what the founders were thinking, which I've already noted isn't all that helpful even to those of us who insist that we heed the plain language of the text. Having read much of the material that was available to the founders (for a series of editorials on the Bill of Rights a few years ago), it's pretty clear to me, for example, that they did intend everyone to be armed and for Congress to stay out of it; the whole point of a militia, after all, was that everybody belonged. So the anti-gun crowd is just, um, blowing smoke there. On the other hand, it's also pretty clear that the intent was for citizens to have available the same level of weaponry as the government. So, unless gun-supporters want to argue in favor of tanks, rocket launchers and perhaps a suitcase nuclear device in every household, I wouldn't go there, either.

But just look at the language. "A well regulated etc." is a qualifying phrase, not a disqualifying one. Whatever it tells us about why the founders wanted Congress to keep its mitts off our gun, it does not negate the order itself. If you tell your kid, "Having become frustrated with your lies about where you go, I am grounding you," I presume you wouldn't let him off the hook for sneaking out of the house when he offers the excuse, 'well, I haven't lied to you since you grounded me.' " You'd have liked him to petition for a modification to the order.

Which we purists like to call "an amendment to the Constitution" to change the meanings that we don't like but that are in the plain language of the document.