Why Second Amendment absolutists are crazy wrong.
Does the Second Amendment mean what the gun rights movement think it does? Does Heller v DC correctly find an individual right to gun ownership in the Second Amendment? I don't think so and here's why.
The authors of the Constitution did not keep or publish minutes of the meetings and debates leading to the finalizing of that document. Some scholars think it was because they wanted the document to be intentionally vague and some think the debates were too violent and divisive to be recounted. Either way, going back to the Federalist Papers, authored under the name Publius to sell the new constitution, we get a glimpse of what the authors thought about a Militia.
In Federalist No. 29, Alexander Hamilton said, "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.”
From this it seems pretty clear that the militia envisioned by Hamilton was a truly well regulated, full time, finely trained group of soldiers.
In Federalist No. 46 James Madison said, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, . . . Notwithstanding the military establishments in the several kingdoms of Europe, . . . it is not certain, that with this aid alone they would not be able to shake off their yokes.
But were the people to possess the additional advantages of local governments chosen by themselves, . . . and of officers appointed out of the militia, by these governments, . . . , it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned . . .”
Madison also believed in a full time professional military organization complete with Officers appointed by the state that is organized and operated by the state and available to be called up, along with the militias of the other states, by the federal government for the national defense.
If that isn't enough evidence that the phrase “a well regulated militia” was intended to be a core cadre of professional full time soldiers to be augmented by conscription from the population at large there is Article 1, section 8, paragraph 16 of the U.S. Constitution which reads, “(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;”
Hmmm, seems that if the Militia wanted you to have a gun it would issue one to you.
Nowhere in any of the literature of the time or in the Constitution itself is the individual right to own arms cited. While it was recognized at the time that the citizenry was in possession of guns nowhere is it mentioned that any but the Militia must be armed. Further the Militia as described by both Hamilton and Madison closely resembles the current National Guard at the State level. That a conservative supreme court would overturn hundreds of years of precedence linking gun ownership to a formal Militia does not stand up to serious scrutiny and like Plessey v Furguson will no doubt be overturned at some point.
The idea that the founding fathers believed that the Militia was every good ole boy with a gun is pure fantasy.
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