Strict Scrutiny (part four): Exceptions to the 2nd amendment

Constitutional fundamentalists, like religious fundamentalists, yell the loudest when their pet issue is involved.  Suddenly, all compromise and nuances go out the door, because they believe there is One Right Answer and they, and they alone, are wise enough to see what that answer is.

These people will gladly agree to gray areas in other parts of their particular Document That Cannot Be Interpreted (whether their holy book or the Constitution) but don’t you dare misinterpret the intent of (insert one:  God / Founding Fathers) when it comes to (insert one:  abortion / gun control). gun

Many people who read the Constitution so strictly as to never allow any gun control will agree that the 1st amendment, despite being very clearly written, has many exceptions that seem to negate the words “Congress shall make no law abridging Freedom of Speech”.  “It’s all how you interpret ‘abridging,’ they will say.

So let’s look now to the poorly-written 2nd amendment:

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.

That’s the version from the National Archives that just about everyone uses.  But then here’s the version from Thomas Jefferson’s writings — the official version passed by the Senate:

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.

Less commas.  But that can make a difference, especially if you are trying to figure out whether the amendment applies to “militia” or “people.”

I am not going to spend this entire post on every nuance of the 2nd amendment because that would take a book.  I advise you to read the first three parts of this current series.  The point of this series is to show that the Constitution is not written in stone, is a result of political compromises, and all parts need to be interpreted.

The 2nd is no exception. It’s not like the rest of the Constitution was written after debates and subject to deals whereas the 2nd was agreed upon by everyone off the bat.

There’s plenty of historical documentation to establish that the 2nd was another one of those Constitutional bits, like the 3/5th clause and other slavery provisions, added because the southern states demanded it. An original version did not use the words “free state” and those words are there for a reason — because the states wanted to make sure they could keep their “militia” which were used to round up escaped slaves. Seriously, there are writings from Patrick Henry and George Mason worried that the northern states, unable to stop slavery, would instead take the guns away from the people keeping the slaves in their place. Whether this was the main reason or not, it still supports my point that the amendment was a compromise.

If you want to be a purist, like many Constitutional fundamentalists claim to be, then I can argue that the Founding Fathers meant only for you to have the right to own guns that could only hold one bullet at a time, took a minute to load, and blew up in your face much of the time. “Of course they didn’t mean that!” they respond. “Ah!” I reply. “So you had to interpret it to include modern firearms.”

The 2nd amendment, just like all of the Constitution, doesn’t mean the same thing it did when it was written. For most of our history, the Supreme Court held that it applied to militia. It was not until the court decided Heller a few years ago that it became an individual right, which countered past history and was strongly objected to by four members of the Supreme Court. (That’s right — one justice made all the difference as to what the Constitution means.) Even still, Heller allowed for regulations of firearms. (That’s the part they forget to tell you most of the time.)

There is nothing magical about anything in the Constitution that leaves it free from interpretation. When I debate the 2nd amendment with Constitutional fundamentalists who believe that the 2nd is written in such a way as to prohibit any gun control whatsoever, the conversation usually goes like this:

“So you don’t think we should keep guns out of the hands of terrorists, criminals, the insane, and children?”

“No, that’s different.”

“Ah! So you agree with me that the amendment is not absolute and there are exceptions! Good. We only disagree on what those exceptions should be.”

I’m not going to spend this post on what I think they should be. My only point is that the amendment is not absolute and is subject to interpretation — just like every other part of the Constitution.

4 thoughts on “Strict Scrutiny (part four): Exceptions to the 2nd amendment

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  3. Pingback: Constitutional Fundamentalists: Either liars or just damned stupid |

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