[Salon] ARE JUDICIAL ADVOCATES OF “ORIGINALISM” MISREADING THE SECOND AMENDMENT?

ARE JUDICIAL ADVOCATES OF “ORIGINALISM” MISREADING THE SECOND AMENDMENT?
                                          BY
                     ALLAN C. BROWNFELD
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In the wake of mounting gun violence, in Texas, in Buffalo, and throughout the country, attention is being paid to the question of what the authors of the Second Amendment intended it to mean. Conservative justices on the Supreme Court, now a majority, say that they believe in “Originalism,” a concept of interpreting the Constitution that asserts that all statements in the Constitution must be interpreted based on the original understanding at the time it was adopted. When it comes to the Second Amendment, the intent of the authors seems to be quite different from some recent interpretations.

The preamble to the Second Amendment mentions service in a militia as the reason citizens have the right “to keep and bear arms.” It declares, “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 Constitution makes clear that the only militias protected by the Second Amendment are “well-regulated” units authorized and controlled by the state governments.

After the American Revolution, the U.S. had no standing army, which was feared as a threat to freedom. At this time, the purpose of state militias was clearly laid out in Article 1, Section 8, clause 15 of the Constitution, so Congress could use them to “execute the laws of the union, suppress insurrections, and repel invasions.” Today, of course, we have a large standing army and the militias in all 50 states constitute the National Guard.

The American colonists, who had always called on their own militia, hated and feared standing armies. Hence, the need for the Second Amendment. Consider the words of Alexander Hamilton: “A well regulated militia be the most natural defense of a free country. It ought certainly be under the regulation and at the disposal of that body which is constituted the guardian of national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in a body to whose care the protection of the state is committed, ought, as far as possible, take away the inducement and the pretext to such unfriendly institutions. If the Federal Government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can then better dispense with the employment of a different kind of force. If it cannot avail itself of the former it will be obliged to resort to the latter. To render an army unnecessary will be a more certain method for preventing its existence than a thousand prohibitions on paper.”

Almost no discussion about the Second Amendment, by so-called “Originalists” or others, pays very much attention to the words of the amendment or the stated intentions of those who adopted it. It is if the word “militia” was not the centerpiece of the amendment. In a March 27, 2018 New York Times article, retired Supreme Court Justice John Paul Stevens pointed out that the amendment was adopted out of concern that a national standing army might pose a threat to the security of the states. “Today, that concern is a relic of the 18th century.”

Justice Stevens, attempting to embrace the original intent of the authors of the Second Amendment, issued a proposal to amend the Second Amendment in his book “Six Amendments : How and Why We Should Change the Constitution.”   He suggested adding five words to the amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms while serving in the militia shall not be infringed.”

When I was in law school, many years ago, no one suggested that the Second Amendment meant that 18-year-olds could purchase assault rifles and unlimited amounts of ammunition, as the shooter in Texas recently did. Eighteen year olds are forbidden to purchase cigarettes or alcohol. Do any of the “originalists” on the Supreme Court really think that this is what the authors of the Second Amendment had in mind?

My father carried a gun and had a concealed weapon permit to do so. He was a businessman in New York and often carried large amounts of cash. To get his license to own a gun and conceal it, he had to go before a judge and explain why this was necessary. Now, New York’s legal requirements in this area are being challenged in the Supreme Court.   Will the Court’s self-proclaimed “originalists” overturn the New York law? If they do, they will be hardly embracing the views and values of the authors of the Second Amendment.

Since January 1, 2009, there have been 288 school shootings in the U.S. That is 57 times as many shootings in the other six G7 countries combined. Consider the comparison of school shootings in the U.S. with other countries:

U.S.——-288.
     Germany——2.
       France—-2
       Canada——-2
       Greece——2
       China——1
        Spain——-0
        Australia—-0
         United Kingdom——0
         Italy——0
         Japan——-0

It is certainly a strange thing in which to lead the world: school shootings. It is wrong to blame the Framers of the Constitution for this state of affairs. The Second Amendment, in the view of those who wrote it, had to do with raising a militia rather than establishing a standing army, which they viewed as a threat to freedom. Our self-proclaimed “originalists” on the Supreme Court seem little concerned with the original intent of the authors. They may call themselves “conservative,” but there is nothing conservative about claiming to follow the “original” intent of the Constitution and then completely ignore it.
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