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Saturday, October 17, 2009

The Right To Bear Arms: On James Madison’s Original Wording of the Second Amendment

There is a bit of an ambiguity in the language of the second amendment, as I suggested in my last blog entry. Does the second amendment protect the individual’s right to bear arms or is that right tied to a State’s right to have a well-regulated militia? Or does the second amendment protect both? The language of the second amendment by itself is ambiguous. Can history help? Do historical sources shed light on what the second amendment was intended to mean?

When we turn to the larger historical context, we can find many sources that are relevant to the discussion. Of particular interest is the wording used by Madison when he proposed what was to become the second amendment. Let’s see whether Madison’s original wording sheds light on the ambiguity of the second amendment.

Madison and the Proposal of the Bill of Rights
We know that the Bill of Rights was intended to allay the fears of the anti-Federalists who had been against the ratification of the Constitution and afraid of a large powerful Federal government. James Madison, who was a supporter of the Constitution's ratification, and a co-author of The Federalist Papers, proposed the amendments to Congress on October 18, 1788 explicitly indicated that the goal was to reduce the fear of opponents to the Constitution that the federal government would encroach on their liberties.

I know some characters who opposed this Government on these grounds; but I believe that the great mass of the people who oppsed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow citizens think these securityes necessary. View online.

Madison says the purpose of the Bill of Rights was intended to reassure the people who opposed the Constitution’s ratification because they did not think it offered the protections that they were accustomed to having against government interference in their lives. Given Madison’s view of the amendments’ purposes, it would seem reasonable to conclude that the amendments were designed to protect an individual's right to bear arms. But there are some interesting twists and turns of meaning that emerge when we look at Madison's own formulation of what became the current second amendment. Madison’s original language differed from the language of the final version that was approved by Congress.

Madison's Original Version of the Amendment
Here is how Madison formulated what was originally the fourth amendment in his original proposal:

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 services in person. View online.

Contrast this with the way the second amendment is now worded in the approved Bill of Rights.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

How interesting! In Madison's original proposal, the language is the reverse of the current second amendment. In Madison’s version, the amendment begins with the people's right and then talks about the need for a well regulated militia. In the approved version that we now have, by contrast, the amendment begins with the need for a militia and then the right to bear arms. Second, in Madison’s version, the militia is required for “the best security of a free country.” By contrast, the current amendment speaks about the “security of a free State.” Third, in Madison’s version an exemption from military service is offered for people of religious conscience. That clause is dropped from the approved amendment altogether. What are we to make of these differences, if anything?

Let’s take up the order of the phrases first. Based on the order, Madison’s language seems to emphasize the people's right to bear arms as an independent self-contained statement much more than the present second amendment. His original language would seem to be a cleaner way to emphasize the individual nature of the right. By reversing the order of Madison’s original, the language of the now approved amendment seems to make the need for the well-regulated militia more primary and the individual right subservient to the need for a well-regulated militia. Is it possible the reversal in language signals a move away from the original intention of Madison’s language? It is difficult to know but that is one reasonable interpretation.

The ambiguity is actually even there in Madison’s language too. Madison’s language also links the right to bear arms to the need for a well armed militia, as if to say the right of the people to bear arms shall not be infringed "because" a well armed and well regulated militia being the best security of a free country. Both Madison’s and the current version of the amendment link the right to bear arms to the need for a militia.

Madison’s version of the amendment fits his language in other amendments as well. Stylistically, Madison begins two of the other amendments before the arms amendment with similar language:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…
The people shall not be restrained from peaceably assembling and consulting for their common good...
The right of the people to keep and bear Arms shall not be infringed….”


Each of these amendments emphasizes “the people”. Thus the rights enumerated in the amendments are rights of the people (not rights of States per se). And to emphasize this point, Madison proposes similar language for the preamble to the Constitution: "First, That there be prefixed to the constitution a declaration, that all power is originally vested in, and consequently derived from, the people.”

It is interesting that there is a slight difference in how the right is articulated in each of the three amendments that Madison enumerates. Two of them emphasize that “the people” shall not be restricted in an action ( “shall not be deprived…” “shall not be restrained”). The one about arms focuses on “the right” of the people shall not be infringed. It also puts “the right” before the verb. This change in emphasis may underscore Madison’s view that the bearing of arms is a right.

There is a second interesting difference between Madison's original wording and the final wording of the approved amendment. Madison speaks about a well armed and well regulated militia being the best security "of a free country" whereas the approved amendment says "being necessary to the security of a free State". This is potentially a significant difference. It is true that the founders did sometimes refer to their home state as “my country.” But it seems more likely here that Madison may have had in mind here the newly created United States, since the Constitution had just been ratified and a unified country had been created. In that interpretation, Madison is linking the right to bear arms to the need of the newly created United States to utilize a militia. By contrast, the approved amendment seems to link the right to bear arm to the need of militias for the States, and seems to be referring to individual States. Thus the final version of the amendment seems to link the right to bear arms to the powers and needs of the States vis-à-vis the newly created Federal government.

There is a third significant difference between Madison’s version and the final amendment as it now appears. Madison goes on to offer an exemption for people of conscience, such as Quakers: "but no person religiously scrupulous of bearing arms shall be compelled to render military services in person.” The current amendment does not have this anywhere, and in fact, ironically enough, it was precisely this clause about an exemption that was subject to debate in the Congress. We shall see that one of the State Constitutions has a similar statement and may have provided the example that Madison picked up on.

It is clear that Madison is envisioning a kind of military draft and the exemption is intended to acknowledge that people do not have to serve in the military if they are what we now call “conscientious objectors”. In other words, in Madison’s version, the first amendment which guarantees freedom of religion trumps the right to bear arms. One right trumps another right.

If we look at Madison’s language, then, it seems to start with the right that “the people” have to bear arms and the fact that that right is attached to the need for the country to have an armed force that can be mobilized. As soon as he shifts to the need to call forth a militia, he then focuses on the exemption that people of conscience have. The three parts are all tied together.
If we now ask about what the right of the people to bear arms means it is possible, even in Madison’s version, to give that it both an individual or a collective interpretation. The individual interpretation we have already described. The collective interpretation would be like this: The people [who have come together to create a political entity, the Country] have a right to “bear arms” or “have a military force.” In other words, it is the people who have entered into political statehood that collectively have a right to have an armed force. They retain this right even after a Federal government is created. They can still have an armed force comprised of private citizens and they can legislate to draft people for the military. The armed force does not belong to the Federal Government and should not be a standing army. It should be a force of the people that can be brought together and disbanded based on need of security. Having said that the people have a right to conscript their individual citizens, Madison then offers an exemption for the conscientious objectors. On this interpretation, then, the right of the people as a political collective is being protected against the government that they created. The government may tax them but it can’t forbid them to have their own military force comprised of the people.

This part of Madison's amendment which refers to people of conscience never made it into the final Bill of Rights. And if we look at the debate in Congress on the Bill of Rights, we find, ironically enough, that it was precisely this clause about the exemption for people of conscience, and not the right to bear arms, that was subject to debate and which was excised from the final amendment. This may explain why the statement about the militia was moved to the first part of the present day amendment. Once the reference to the exemption was dropped from the end, the word statement about the need for a military did not have to come at the end. It could now be reordered and placed in the beginning.

In conclusion, the wording of Madison’s amendment can lend itself to either a collective or individual interpretation. And the change between Madison’s version and the present day amendment suggests that even more emphasis was placed on the need for the state to have a well-regulated militia comprised of ordinary citizens.

Saturday, October 3, 2009

A Right To Bear Arms?

Do we have a right to bear arms? And if so, what kind of right is this? Well, the second amendment in the American Constitution, of course, says:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"We" Americans, then, have a right to bear arms to the extent that we understand this amendment and agree that it has the power to define our rights. Or if this is a "natural right" then everyone should have the right to bear arms. But first let us focus on the meaning of the amendment here and what it means for Americans. For even if it isn’t a natural right, Americans would have the right because their Bill of Rights gave them the right.

For right wingers and gun rights advocates, this amendment means that individuals have a right to own and possess guns, for their own protection and sport. It is proof that the founders saw gun possession as a fundamental and perhaps even natural right. This right comes just after freedom of speech and religion in the first amendment. It is of the same level of importance and comes before protection from search and seizure and trial by jury, other rights listed in the Bill of Rights. It is an individual right. Just as the right to free speech and religion talks about "the right of the people" so too this amendment talks about the right of the people, meaning an individual right.

But, as anyone who has read or thought about this the amendment and its language realizes, the issue is more complex. For the language of the amendment is not transparent at all. The fact that it is not transparent raises complex interpretive problems leading to disputes on the amendment's meaning and intention. And ultimately what is a debate over the nature of a core social value and definition of rights boils down to a debate about language, history and interpretation. So what else is new?

Unfortunately or fortunately, depending on your perspective, the amendment doesn't just say "the people have a right to keep and bear arms.” That would have been a clearer and more straightforward way to give individuals a right to own guns. Instead, the amendment prefaces the right to bear arms with a statement about the need of a free State to have a well regulated Militia. Why is that?

This is the horns of our interpretive dilemma and debate over what the amendment means. Before looking at historical facts to try to interpret this amendment, let us look at the language by itself and see what sense we can make of it. One of our supreme court justices (Justice Antonin Scalia, A Matter of Interpretation) thinks we can interpret the Constitution just by looking at its language and not looking at historical context to interpret language. Let's see if he is correct in this case.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Why does the language of the amendment link the "right of the people to keep and bear arms" with the need for a "free State" to have a well regulated militia? One way to read the amendment is as follows: "Since" a state needs a well-regulated militia, for its security, that is why the people's right to bear arms shall not be infringed. In this reading, the language of the amendment makes the right to bear arms tied to the need to support the State with a well-regulated militia.

Bearing arms is thus tied in some way to the need for a militia. The language of "bear arms" underscores the association of this amendment with the idea of military defense. "Bearing arms" in the founding is usually associated with the idea of military defense, as Akhil Reed Adams, has pointed out in his America's Constitution: A Biography, 322-323. One can find numerous examples of how "bearing arms" refers to a military context in founding documents such as The Federalist Papers.

If this amendment was simply justifying a defense of my individual right to possess and own guns, why add any language about the militia at all? One possibility is that the right to bear arms is derived from or dependent on the need for protection of the state. On this interpretation, there is not some individual right to bear arms separate from the need to protect the state. And thus the ownership of guns is tied to that purpose particularly. If that is so, then one could argue that the use of guns should be restricted to military purposes.

Some modern interpretations of the amendment have leaned towards this interpretation. They say that the amendment grants "the people" collectively, and not individuals as individuals, the right to own guns for the purposes of State security. On this view, since the State is created in part for protection of individuals there is a right for "the people" to bear arms in defense of themselves. But there is no individual right to bear arms, apart from this purpose to defend the State. Champions of gun control would like to read the amendment this way and declare that gun ownership should not be for sport or personal protection but linked only to common defense of the state. Going further, you can also argue that the State can therefore control the right to bear arms since the purpose of the amendment is to protect the State’s right to defend itself. The State has the right not individuals.

But there is another ambiguity in the language of the amendment concerning the purpose of the militias. What does the amendment mean when it says that well regulated militias are "necessary to the security of a free State." There are two ways of understanding this statement. Most probable is that the amendment is referring to militias that were intended to protect each state in the Union. In other words, the amendment is recognizing that though the Constitution grants the Federal government the right to create a permanent army, the States themselves still had the right to militias for their own protection. Indeed, the Constitution assumes that the individual States still retained some sovereign power and thus had a right to protect themselves against aggressor states or foreign invaders, even though the newly formed Federal Government had the responsibility to defend the collective states and police conflicts between states. The States in other words retained some of their rights of independence that had existed before the Constitution.

This would make some sense reading the powers granted to the Federal Government in the Constitution:

Article 1, Section 8 of the ratified Constitution had already outlined the power of Congress:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

As is evident here, the Constitution envisions that Congress has the power to create an army with money appropriated through taxes for up to two years. An “army” which was made up of professional soldiers differed from a militia which was drawn from the people on an as needed basis (see Amar, Bill of Rights). The Constitution itself, even before the Bill of Rights was ratified, envisions that Congress has the power to call forth the "the Militia" to execute the laws of the Union, suppress Insurrections and repel invasions." The Constitution presupposes that the States have militias and that Congress can mobilize the militias for broader Federal interests.

To tie the Constitution and Second Amendment together, then, the two seem to be saying that 1) the Federal Government presupposes the existence of the State militias that can be mobilized for Federal purposes and 2) the need for a well-regulated militia requires that the people’s right to bear arms not be infringed. Thus if the Federal government can take away people’s arms, the states cannot have well-regulated militias.

The second amendment, therefore, could be construed as a state right rather than an individual right. The protection is offered to the people by giving States the right to arm their citizens and create militias. On this reading, the protection is collective by offering individuals protections through their States. We know in fact that there was deep concern during the Debates on the Federal Constitution about the liquidation of State powers. One could argue that the second amendment was intended to protect this State right to create militias and arm their citizens. This could make some sense of the language.

Yet while the debates preceding the ratification of the Constitution often focused on the tension between State and Federal powers, the Bill of rights seems aimed at ensuring individual rights. Freedom of speech and religion, search and seizure, trial by jury, are all rights of individuals. And “the right of the people” though phrased as a right of a collective is used also in other amendments to clearly mean an individual right, as in Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Still, the fact that the second amendment does not start with “the right of the people to bear arms” but with a preamble about a “well regulated Militia” seems to tie the individual right to the need for the States to have a capability of protecting themselves. My right to bear a gun is tied to the State’s purpose of creating security for me. Since the founders envisioned the purpose of the State to be partially for security, and to protect individual rights, then the mechanisms of ensuring that security have to be protected.

The language of the amendment therefore is interestingly ambiguous when read in the context of the Bill of Rights as a whole or the Constitution as a whole. By looking at language alone it is difficult to say what the “intent” or “meaning” of the amendment is or was intended to be. Justice Scalia is clearly wrong when he says we can interpret meaning of the founder’s language without looking at history. This amendment in its language is ambiguous. And perhaps that ambiguity was part of the intent.

The Real Origin of Religion:Short People and the Big Gorilla

There are many modern theories of religion's origin. Some of the nineteenth century evolutionists, such as Edward Tylor, argued that religion originated as an explanation of natural events that could not be explained, such as thunder and seaons. Emile Durkheim, the French sociologist, explained the origin of religion in the experience of community in small communities where the power of the community was perceived to be outside a person and thus to be all powerful and moral. Freud argued the origins of religion were in the psyche and the experience of the all powerful parents.

But noone as far as I know has ever suggested the real origin of religion. It is clear that religion is an invention of short people. Short people (my ancestors for I am one of them) can clearly account for the development of religion. By projecting images of all powerful beings into the heavens, short people found the only possible way of getting big people in line. Small people after all were at the mercy of the big people.

In prehistoric times, it was not simply women who were subjected by men. It was short men too who were under the power of the powerful males. Humans were like and still are like certain types of other animals originally, such as the gorillas, in which the dominant male kept all the females to himself and cowed the smaller males.

But the development of symbolic thought, one of the great dividers between humans and the other animals, gave small people a new powerful tool. Now they could imagine an even bigger gorilla, a being that was so powerful and so large that the dominant male would be cowed. This dominant imaginary being, of course, could not be one that could be easily seen, for were this being to be visibile the actual dominant male of the horde could then try to fight the being to test its power. One can think of such encounters between humans and the Gods in stories like Jacob wrestling with the angles.

As a result, these other imaginary dominant males would have to live in the sky and would only communicate with special trusted servants (short people, of course, were particular trusted). What these larger than life figures demanded, naturally enough, was some form of ethics, a set of rules by which society would abide. These rules would level the playing field. They would make the size ofthe male unimportant. Even short people like me would be able to accepted in the community. The dominant males could not monopolize all the women.

The birth of ethics was thus the gift of small people. Ethics would ensure that size didn't matter. Other characteristics of the person would be relevant in social life. Power alone would no longer make right. In earlier stages of society, property was a right of the powerful. But now one could acquire property without taking it. Rules would ensure that small people could have property just like big people. So you see, the notion of God is a gift to the world by small people. It was small people who imagined a bigger baboon, one who could cow the dominant male. The idea of God, of the "big gorilla" was a natural consequence of the symbol making capability of human evolution. Once short people could imagine a bigger nicer gorilla, but one who was invisible, it was only a short step to the birth of religion.

Right to Life, Liberty and Healthcare Too

It is amazing that people who say they care so much about liberty don't want to support a healthcare reform bill. Those right wing conservatives and libertarians who are against it, of course, say it because Obama's plan infringes on their rights. They portray the public plan as "socialism" and as an example of "big government" stepping in inappropriately. A public government plan in an infringement of individual rights, they say.

This is an example of how "liberty" is used indiscriminately to actually infringe on rights. For it is not only possible, but probable, to argue that "health" is a natural right.

I am by no means the first to make such a claim. Cass Sunstein, as one example, has written a good book on the subject (The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever). But I want to approach this same topic from another angle. The very notion of what is and is not included in our natural rights is a construction. For the question of why health should not be a natural right that is protected by government, just like my other rights, shows just how flimsy and problematic is the Right Wing's view of natural rights. Indeed, we shall see that it is arguable that "health" should be considered a basic natural right alongside others such as "life, liberty and property."

Without going into the whole history of natural rights, it is fair to say that seventeenth century philosopher John Locke at least represents one of the most credible and influential writers on natural rights. In fact, those who want to see natural rights as a foundation of American society, , often argue that Thomas Jefferson and the American founders endorsed natural rights in general and a Lockean view in particular. I have documented and challenged these contentions in a series of essays (see http://www.freedomandcapitalism.com/) and in a forthcoming book, Jefferson, Natural Rights and the Declaration of Independence.

Lets assume for a moment these writers are right, and that John Locke's understanding of natural rights is a foundation of the American vision. If so, then what are we to make of the fact that Locke includes health as a natural right.

In the Second Treatise on Government, Locke writes in one of his central statements on natural rights:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipoent, and infinitely wise maker; all the servants of one soverign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during hs, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of createures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another.

Now it is surely interesting that Locke here mentions "health" along with the other basic natural rights in one of his classic definitions of natural rights. Indeed, this is one of Locke's classic justifications for the fact that people have natural rights. We have such rights because we are God's workmanship and as God's property we don't have a right to harm one another. In this passage at least, Locke assumes our natural rights derive from the fact that God made us and we are his property. I can't touch you because you are someone else's property.

Furthermore, we also see here Locke's assumption that my right to life is primary and the other rights like property are secondary and derivative from my right to life. In Locke's own words, one "may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another." Property is not a right by itself, but a right that derives from my right to life. As Locke says elsewhere, if someone can take my property they can take my life. So my right to property is a fence around my more basic right to life.

We often here the summary of natural rights as "life, liberty and property" (or Jefferson's "happiness"). But note that Locke includes "health" in his list too. Health is on the same level as property in the list of natural rights. My right to health is as primary as my right to property. Noone has the right to impair my health in the same way they have no right to my property. Both are a fence around my more basic right to life.

We see then that my right to health should be protected and this right is as strong as my right to property. But so what? What has this to do with the healthcare debate? Doesn't Locke mean to say only that noone may do something to harm my health? And if so, Locke is merely saying that I can't do something that will harm your health?

In fact, we shall see that Locke is saying something even stronger than this. But lets assume for a moment he is not. Lets assume he is merely saying that noone may do something to harm me or my health. Still this is a very significnat addition to natural rights. For it means that there should be as many laws protecting my health from harm as we recognize for protecting my property. If government has to create many laws to protect my property, it should have the responsibility to create as many laws to protect my health. My property should not be more precious to society than my rights regarding health. One could see here the foundation for government regulating what others do that may infringe on my health. One can see here a justification for anti-smoking laws, for example, or for environmental laws against pollution. Actions of others can harm my health directly and indirectly and that is a violation of my right to health. In other words, if I have a natural right to health, then my health should be protected from the detrimental actions of others. That is a pretty strong endorsement for government getting involved in protecting me from the behavior of others that they may not intend to harm my health but that actually may harm my health.

But there is a reading of Locke that suggests an even stronger obligation to protect the health of the individual. For Locke indicates that if our own preservation is not at risk, that we have a duty to protect the life and health of others. In his words,

"Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another."

What Locke is saying here is that the same Reason that leads me to conclude that I may protect and preserve myself leads me to understand that I have a positive duty to preserve the rest of mankind. This duty to preserve the rest of mankind can be construed as a positive duty of "care" . As long as my own preservation is not at risk, I have an obligation to help others, not only to protect their lives, but "what tends to the life, the liberty, health, limb or goods of another."

In this reading, Locke is arguing that we have not only a right to be protected but a duty to care and that duty is part of the natural rights obligation. This duty moreover is as self-evident to reason as the protection of our life. What this duty to care suggests is that each person has a duty to do "whatever he can" to preserve the rest of mankind.

Now this language certainly opens up the possibility that individuals have a responsibility to contribute to the health of others. And it opens up the possibility that individuals can transfer this duty to society and execute it through government institutions. After all, Locke sees the beginning of government in the social contract in which individuals turn over to society some of their rights in exchange for some of societies benefits. If an individual has a responsibility to preserve humankind, it stands to reason that government can act as an agent for those responsibilities.

In this way, we can see how it is appropirate for government to see itself as executing the natural right obligation to protect the health of its members. A health care plan that puts some of the onus on government certainly can be aligned with a view of natural rights. To call a health care plan that has government involvement "socialism" indicates a complete lack of understanding of the natural rights tradition.

For those who want to argue that America is founded on natural rights and liberty, they have to contend with the fact that the father of liberty, John Locke, thought health was a central right. And they have to deal with the fact that many that right wingers think Jefferson adopted the Lockean view of rights. If they think American is founded on natural rights, then they have to at least concede that the father of the natural rights tradition included the protection of health in the category of a natural rights.