Forum Post: The Second Amendment’s History

The Second Amendment’s History

Friday, 25 January 2013 10:54 By Beverly Bandler, Consortium News | News Analysis

http://truth-out.org/news/item/14138-the-second-amendments-history

Longstanding Precedents

Few Americans know that there are two opposing views of the Second Amendment: the collective right model and the individual model. They are unaware that the first view prevailed for almost one hundred years, that it was not only widely accepted it was uncontroversial.

Professor Robert J. Spitzer discovered in the course of his research for the “2000 Symposium on the Second Amendment” that from the time U.S. law review articles first began to be indexed in 1887 until 1960, all law review articles dealing with the Second Amendment endorsed the collective right model.

The first law review article asserting an individual’s right to own firearms for self-defense (or sport) did not even appear until 1960. Eleven articles discussing the Second Amendment were published during this 73-year period. All endorsed the collective right model. “If there is such a thing as settled constitutional law,” wrote law professor Carl T. Bogus in 2000, “the Second Amendment may have been its quintessential example.” The United States Supreme Court addressed the Amendment three times in 1876, 1886, and 1939 and on each occasion held that it granted the people a right to bear arms only within the militia. [See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Miller, 307 U.S. 174 (1939).]

The Second Amendment was adopted on December 15, 1791, along with the rest of the Bill of Rights. As passed by Congress, it read: “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.” The Right (and those who have bought into their argument) would appear to completely dismiss the first phrase relating to the militia, the phrase that gives the leading, primary meaning of the sentence and to which the second phrase relates. The word “militia” is defined in the Constitution itself: “The Congress shall have Power . . . 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.” [Article 1, § 8.]

Law professor Carl T. Bogus points out that the founders disagreed about how the militia ought to be organized: For example, “Madison favored a universal militia while [Alexander] Hamilton argued for a select militia. However, they agreed as a constitutional matter to leave this up to Congress; and the Constitution expressly gives Congress the power to organize the militia. Thus, the militia is what Congress decides it is, regardless of whether it differs from an eighteenth-century model. Currently, the militia is indisputably the National Guard because Congress has so decided.”

Twisted Quotes

Historian Wills’s lengthy and scholarly argument in 1995 was not to deny any private right to own and use firearms. He simply maintains that Madison “did not address that question when drafting his amendment.” He suggests that gun advocates lobbied using shoddy scholarship that included quotations that were “truncated, removed from context, twisted, or applied to a different debate from that over the Second Amendment” in order to find “new meaning for the Second Amendment” – in effect, to sell the American public the idea that there is a “sacred right enshrined in a document Americans revere.”

It has been suggested that the basis for the majority opinions of the Court in the 2008 and 2010 cases that provided support for the individual model (in 2008, for the first time) is also based on questionable scholarship and intellectual leaps. It should be noted that in both cases the Court was divided 5-to-4. [See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 3025 (2010).]