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Hunter Rawlings on James Madison and the Interpretation of  the Second Amendment

6/13/2022

4 Comments

 
 

On reading remarks in  my recent Newsletter   on the interpretation of the Second Amendment to the U.S. Constitution, Hunter Rawlings of Cormell University responded with these  observations about its primary author James Madison:
 
“It is evident that it is not James Madison’s meaning in the Second Amendment, but his idiosyncratic wording, that has undermined gun control in our era (not in prior eras, e.g., the 1939 U.S. v. Miller decision by the Supreme Court).  It is also evident that a proper understanding of his syntax would solve the issue of a Constitutional gun right without going through the almost impossible process of repealing the Amendment.  Having read a lot of Madison, I am  convinced that his standard usage compels us to interpret the second clause of the Amendment as dependent upon (or, to use a more formal linguistic expression, “entailed by”) the first:  that is, the right “to keep and bear arms” depends fundamentally upon the existence of “well regulated Militia(s).”  The fact that Madison did not say “Since a well regulated Militia is necessary to the security of a free State…” in the first clause, but instead used what linguists call an “absolute adjunct” (“being necessary”) has, unfortunately, caused the problem.  If he had written “Since” with a verb in the indicative or subjunctive, the meaning would be clearer, but his use of the absolute expression is standard for him in the protasis of a conditional sentence.  Madison clearly, and I mean clearly to anyone acquainted with his syntax, and with the conditions current when he was drafting the Amendment, meant that the right “to keep and bear arms” is a right of the people only because militias are “necessary to the security of a free State.”  He was, in the historical context, trying at the outset of the new federal government to appease Americans who knew that their state militias had been crucial to our victory in the Revolutionary War, and were worried that a new national (federal) army might overshadow the state militias and dominate and threaten the people, who were used to, and proud of, their state militias.
 
In summary, a proper reading of his syntax and a basic understanding of the historical context make the Second Amendment no longer applicable, i.e., moot. Any other reading is ideologically willful.  Justice John Paul Stevens knew all this, and so have other Justices, but in recent decades they have been in the minority on the Supreme Court.”
--
Here’s the text of the Amendment, prfetly clear, O think, to anyne who, like Madison and his colleagues, knew their Latin and could spot an ablative absolute at musket range:
“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.” 
4 Comments
Arthur Eckstein
6/15/2022 08:01:33 am

Hunter is exactly correct both on the grammar and on the historical background of the Second Amendment. Even in the 1860s, the vast majority of units on both sides in the Civil War were state militia regiments whose men had signed up only for a fixed period of time. They were not "professionals". The 20th Maine and the 2nd Minnesota are the most famous on the U.S. Army side. At first the Confederate governor of Georgia even refused to allow his State militia regiments to fight outside the borders of Georgia. By contrast, the Federal army (the U.S. "Regulars") was a very small force both before and after the Civil War. This small force was hugely expandable by state militia units in a national emergency.

In contemporary State constitutions we also find statements such as the one in section 13, of the Virginia Constitution. It provides in part: ‘‘That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." (June 1776; primary author was George Mason ).

Interesting, too, are Sections 1 and 2:

SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

SEC. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them

(Again, this is George Mason, not Jefferson--who was obviously influenced by Mason's thought and words.).

Arthur M. Eckstein
Professor of History and Distinguished University Professor Emeritus
University of Maryland

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Jim
6/29/2022 07:28:31 am

So my students were right: with the development of that tricky ablative absolute, the Romans were too clever by half. A headache for my students, and in its English analog, a tragedy for us.

With regard to the Second Amendment and the too-clever-by-half *Heller* opinion by the late Antonin Scalia, a layperson admits to being utterly befuddled. What was the point of writing a constitution and establishing a republic, if every man and woman with a gun is to be a law unto themselves? 300 million sovereign states pretending to be one country ...

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Bob Kaster
6/30/2022 10:07:48 am

If memory serves, Scalia in "Heller" disposed of the absolute construction's limiting / defining force by claiming that it set forth only one possible circumstance under which the main clause would be valid: obvious nonsense for which only the desire to reach an ideologically determined outcome—not Madison or the Romans—can be held responsible: "This court having determined the defendant's guilt beyond a reasonable doubt, he shall serve a term of ..." establishes a specific and limiting relation of cause and effect that I'm sure the late justice would have had no trouble recognizing.

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Ruth Scodel
6/30/2022 02:45:02 pm

It being obvious that the conservative justices do not read or interpret is good faith, ...

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