Heller Sequels And 2nd Amendment, Still Undecided:Part 2

August 26, 2017

In the second segment of his article, “Heller Sequels and 2nd Amendment, Still Undecided: Part 2” (Law 360 Aug. 3, 2017), Robert Ludwig explores the roots of the Second Amendment, and in doing so shows how the Heller majority, relying on dictionaries and English history a century earlier, and disregarding its debates, drafting, and American history, was left with “no understanding of the problems confronting the Framers,” which had nothing to do with an individual right.”

Mr. Ludwig suggests that, while “overlooking the full text and other things,” as demonstrated in Part 1 and in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “academics and the courts have been unable to explain something nearly as obvious: what the states demanded they got from its drafter James Madison and the First Congress.”

At the 1788 Virginia ratifying convention, Col. George Mason “drafted, and the Virginia convention proposed, both a declarative amendment (‘That the people have a right to keep & to bear arms; that a well regulated Militia, composed of the body of the people, trained to arms, is the proper natural and safe defense of a free State’) and a corresponding structural amendment (‘That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.’)”

Mr. Ludwig shows how “Rep. Madison, denied a Senate seat and narrowly elected to the First Congress on the promise he would introduce amendments,” ignored any structural amendment that would alter compromises just struck at the Constitutional Convention, submitting a draft that read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” House and Senate “committees and stylists inverted the first and second clauses, changed ‘country’; to ‘State,’ eliminated the conscientious-objector clause, dropped ‘well armed’ as redundant and tightened language,” resulting in the Second Amendment.

But, Mr. Ludwig asks, “Why were the generally expressed and extensively entertained fears of Mason and most Anti-Federalists (states’ rights advocates) quieted by the declaration alone, without the structural amendment? That question has never been answered.” The historical record that might explain the Second Amendment and the framers’ decisions, including to eliminate the structural amendment, was not published for decades after ratification, and modern anthologies on both sides of the gun debate, deemed authoritative, contain and perpetuate other mass oversights in addition to the overlooked text. And the record “that might explain the amendment, while more extensive than assumed, is not what might otherwise exist for a founding institution,” largely because “the militia system, a republican alternative to a despised standing army, began an early march to obscurity,” a month before the amendment was ratified in 1791. In “one of the country’s worst, forgotten military disasters, an Indian confederation (bearing British muskets) wiped out nearly a third of the nation’s forces” when “militiamen ran, leading to the first cabinet meeting by President Washington, congressional investigation, and creation of a standing army that became the U.S. Army.”

Yet, despite perceived gaps in the historical record, the framers’ intentions and the historical roots of the amendment are not as elusive as the courts and academy assume. A primary reason why the record has “baffled” academic and legal interpreters is that, as Mr. Ludwig shows, “rather than re-examine assumptions, questions asked, and worn paths through their (abridged) founding record, the general tendency has been to blame the record, or the framers themselves, otherwise regarded as unparalleled political theorists and stylists.”

Unable “to square the circles or mysteries of the amendment,” including how its (first two) clauses fit (overlooking its third), why Madison drafted it the way he did, and why it quieted generally expressed state fears over the right to arm their militia, many scholars like Michael Waldman of the NYU Brennan Center for Justice, conclude: “We cannot clearly know what the framers intended,” reflecting entrenched “received wisdom in academic circles.” “Actually, we can,” Mr. Ludwig writes, as he further begins to demonstrate in Part 2 of his textual and historical analysis of the amendment.