In light of the recent shooting of a news crew, we will, as is always the case, various bleatings about the sacred Second Amendment.

One of the most pernicious things in the gun control debate is how the original intent of the Second Amendment–which was to protect Southern militias, which also functioned as slave posses, from being taken over by anti-slavery Northern states (“The freedom to hunt your slaves“)–is completely ignored, especially as many of the Second Amendment “absolutists” despise reinterpretations of other Constitutional amendments. I’m glad to see I’m not the only one raising this point (boldface mine):

The Second Amendment does not give Americans the right to keep a gun for personal self-defense or recreational use. Most people think it does, it’s often repeated by the gun lobby and of course Scalia & co. came to that conclusion, but that doesn’t make it true. Here is why:

The framing, Congress debate and drafting of the Second Amendment had the purpose of avoiding the tyranny of a standing army and ensuring states could maintain their own militias as a check against a national government. It is a military amendment and that is why debate at the First Congress focused on conscientious objector language and whether that could be used by a government to undermine the amendment.

The Second Amendment in fact only came about because Article I, Section 8 of the Constitution initially allowed the government to arm the militias (and so could leave them to wither) – the Second Amendment took that right to arm the militias back to the states. The President is the Commander in Chief “of the Militia of the several States, when called into the actual Service of the United States”. This is the purpose of the Second Amendment.

The framers deliberately did not include language to expand this right to individuals for self-defense and hunting. Many state constitutions DO include words to that effect. For example, Pennsylvania’s 1776 constitution stated:

“That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power”

And in fact Pennsylvania and Massachusetts proposed – but rejected – similar Amendments to the US Constitution at their ratifying conventions:

“That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals;”

New Hampshire was the only state that ratified a proposed amendment that came anywhere near an individual self-defense right – but again this was rejected by the framers and not included –

“Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

These contemporaneous examples of individual rights language prove three things:

1. The framers were aware of the distinction between defense of the self, hunting and defense of the state
2. The framers knew how to express that distinction in clear legal language
3. They chose not to do so in the Second Amendment after a lengthy drafting process

We can’t go back and wish they had included that language. They didn’t. If we want that federal individual right, the Second Amendment itself has to be amended.

Patrick Henry (“Give me liberty, or give me death”–that Patrick Henry) was absolutely clear about this:

“If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia.”

As brilliant as the First Amendment is, the Second Amendment is equally odious.