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Posted at 10:07 AM ET, 01/18/2011

The travels of the Constitution

By Ezra Klein

From Jill Lepore's excellent essay on the document:

The secretary of the convention carried the original to New York to present it to Congress, which met, at the time, at City Hall. Without either endorsing or opposing it, Congress agreed to forward the Constitution to the states, for ratification. The original Constitution was simply filed away and, later, shuffled from one place to another. When City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War Office. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-twenties, when someone asked James Madison where it was, he had no idea.

In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement. In 1921, Herbert Putnam, a librarian, drove it across town in his Model T. In 1924, it was put on display in the Library of Congress, for the first time ever. Before then, no one had thought of that. It spent the Second World War at Fort Knox. In 1952, it was driven in an armored tank under military guard to the National Archives, where it remains, in a shrine in the rotunda, alongside the Declaration of Independence and the Bill of Rights.

It's also worth excerpting this section on the recent expansion of the understanding of the Second Amendment. Note the Bork quote:

Consider the Second 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.” Historical evidence can be marshalled to support different interpretations of these words, and it certainly has been. But the Yale law professor Reva Siegel has argued that, for much of the twentieth century, legal scholars, judges, and politicians, both conservative and liberal, commonly understood the Second Amendment as protecting the right of citizens to form militias—as narrow a right as the protection provided by the Third Amendment against the government’s forcing you to quarter troops in your house.

Beginning in the early nineteen-seventies, lawyers for the National Rifle Association, concerned about gun-control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the right of individuals to bear arms -- and that this represented not a changing interpretation but a restoration of its original meaning. The N.R.A., which had never before backed a Presidential candidate, backed Ronald Reagan in 1980. As late as 1989, even Bork could argue that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.” In an interview in 1991, the former Chief Justice Warren Burger said that the N.R.A.’s interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

By Ezra Klein  | January 18, 2011; 10:07 AM ET
Categories:  Legal  
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Next: Is the individual mandate unprecedented?

Comments

Ezra, you must be a glutton for punishment. If you thought your last discussion of the Constitution generated vitriol, just wait until the gun nuts get after you about this one! You have to remember that only right wing nuts know exactly how to interpret the Constitution.

Posted by: AuthorEditor | January 18, 2011 10:26 AM | Report abuse

AuthorEditor: Indeed.

I have been inclined to think that the amendment does provide some individual right to bear arms, though it seems ridiculous that SCOTUS is striking down jurisdictional restrictions when the words "well regulated" are part of the preceding clause.

But reading the words again make me wonder about the individual right. The phrase used is "the people", which suggests a collective right, not "people" or "persons" as used in other parts of the constitution when referring to individuals.

Posted by: dollarwatcher | January 18, 2011 11:33 AM | Report abuse

When trying to understand the wording of the second amendment, the historical context must be considered carefully. At the time of writing, two concepts came into play.
1. A militia was then defined as a part-time defensive military force comprised of volunteers from the community it was called on to protect. The volunteers almost to a man were self-armed; weapon ownership was a requirement for survival in the colonies and on the frontier, and the need for a volunteer force was primarily the result of economics. Few, if any, communities had the resources to stock arms and ammunition, much less pay for a standing military force. Therefore, it was inherently understood that militia volunteers supplied their own weapons.
2. The very basis of the federal government includes the ability of the citizens to defend against extreme abuse of governmental authority. This was understood to mean that the people themselves could not be stripped of their most elemental defense against subversion of the government from its guiding principals. The wisdom of maintaining this basic right is evidenced daily by the struggles in many other countries around the globe where citizens do not have this protection.

Many people have the idea that we are too "civilized" to require this basic right anymore- the day this is true is the day that greed, corruption, and the rest of the terrible aspects of the human conditon are no longer present in mankind as a whole. Until that day, we must have this right for the protection of society against the worst members of our species, even if it is rarely used in practice.

Posted by: stardust3 | January 18, 2011 11:44 AM | Report abuse

In response to Dollarwatcher's comment;
The basic building block of "the people" as a group is the individuals who form the whole. This then is the level at which second amendment rights must be maintained, else the right is useless. If weapons are restricted to "the people" as a whole, then the governing body of the whole must be in control of the weapons of defense, thereby stripping the protection of "the people" as individuals against subversion of said controlling government by corrupt and power-seeking members. If, in the unlikely but possible case of severe government corruption, it falls upon the people as individuals to reform the government. It will obviously require a general agreement of the majority of individuals, as well as the means to remove the corrupt government members by force if necessary. This again may seem like a fantastic possibility, but it does exist, and must always be considered.

Posted by: stardust3 | January 18, 2011 12:04 PM | Report abuse

I actually agree in general with the points made above (although I disagree that "corruption" as it is understood in modern parlance justifies an armed uprising). My concern is the extent to which the individual right is used to justify the carrying of arms unfettered by good sense and community safety. To take a couple of examples, recent laws allowing people to carry guns in bars and incidents of people bringing guns to political rallies seem very worrisome in this age of hot tempers and head stomping at political events. It is not difficult for me to imagine under these circumstances good old-fashioned bar brawls and protest rallies turning into massacres. More guns, as some advocate, would only elevate that scale of such tragedies. It seems to me in these particular cases the individual right to bear arms conflicts with, rather than buttresses, the security of a free people.

Posted by: dollarwatcher | January 18, 2011 12:24 PM | Report abuse

Now here's some alternative history: If Robert Bork had been allowed on the Supreme Court the DC gun ban would have been upheld.

Posted by: arthackett | January 18, 2011 12:33 PM | Report abuse

Now here's some alternative history: If Robert Bork had been allowed on the Supreme Court the DC gun ban would have been upheld.

Posted by: arthackett | January 18, 2011 12:34 PM | Report abuse

Wow, this thread should get tedious fast...

Posted by: MosBen | January 18, 2011 12:40 PM | Report abuse

I agree with Dollarwatch that common-sense gun regulations, good background checks, training, and appropriate gun-free zones are needed, as long as there are not knee-jerk blanket restrictions imposed due to unreasoning fear and misunderstanding of weapons in general. Israel and Switzerland stand as good examples- the majority of their citizens go through military training and weapons familiarity, which greatly reduces the concept that weapons themselves are somehow inherently evil. To those populations, weapons are a tool of defense to be used under the proper circumstances. In fact, Swiss residents are required to keep their issued weapons in their possession after serving, in case of need. We here do not go through such training, and therefore a large portion of the population has fears that are based on ignorance and misunderstanding of the subject. A person does not have to agree with the use of weapons, but they should be instructed and familiarized with the basics before trying to regulate them.

Posted by: stardust3 | January 18, 2011 1:24 PM | Report abuse

Well, if you actually read the Constitution, there is a bunch of stuff explaining the role of the Militia that is mentioned in the 2nd amendment. It suggests that the well regulated Militia of the 2nd Amendment was to be regulated by Congress. For instance, in the Congressional powers in Article I, they include:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;

Posted by: Douglas4 | January 18, 2011 1:38 PM | Report abuse

P.S. Although the possible need of an "armed uprising" has grown remote with the passage of time, the existence of criminals has not, and they constitute as dire a threat to individual safety and freedom as a corrupt government. Therefore, the right to protect one's self cannot be reserved only for the second threat, but must be for both.

Posted by: stardust3 | January 18, 2011 1:43 PM | Report abuse

Wait a minute, Ezra. I thought you said nobody could understand the Constitution because it's, like, over 100 years old and stuff. So how can we put any stock in Jill Lepore's--or anyone's--opinion on it?

Posted by: kbarker302 | January 18, 2011 1:49 PM | Report abuse

Douglas4, this certainly pertains to the maintainence and discipline of the militia, as well as guaranteeing that the militia is properly armed(hence the term "To provide...")so that it may be well equipped, but it does not restrict the right of providing arms only to Congress. It only reserves "the Appointment of the Officers, and the Authority of training the Militia...".

Posted by: stardust3 | January 18, 2011 1:53 PM | Report abuse

Well you are welcome to try an take them in fact I dare you.

Posted by: mtb1234 | January 18, 2011 2:22 PM | Report abuse

mtb1234, what are you replying to? take what? what are you talking about?

Posted by: stardust3 | January 18, 2011 3:15 PM | Report abuse

mtb1234, what are you replying to? take what? what are you talking about?

Posted by: stardust3 | January 18, 2011 3:15 PM | Report abuse

"Beginning in the early nineteen-seventies, lawyers for the National Rifle Association, concerned about gun-control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the right of individuals to bear arms, and that this represented not a changing interpretation but a restoration of its original meaning."

Well, the text does say "the right of the people to keep and bear arms shall not be infringed."

"As late as 1989, even Bork could argue that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.”"

Really? Why doesn't the 2nd amendment read "a well regulated Militia, being necessary to the security of a free State, the right of the States to form and maintain Militias shall not be infringed", if it was all about ensuring that states could form militias?

Posted by: justin84 | January 18, 2011 4:42 PM | Report abuse

In one 27-word sentence, the Second Amendment considers the need of a free state for the security of a well regulated militia and declares it to be the right of the people to keep and bear arms to meet that need.

The new Constitution was under heavy assault from those who thought its military provisions would remove state security from any control by the people and centralize it under the new general government. The objectors believed that the general government would create a full-time army of social misfits and foreign mercenaries who would have no respect or “fellow feeling” for the rights of the people.

To meet the objection, the Framers wrote the Second Amendment, and they told the federal government that it must not infringe the right the amendment expresses.

The amendment was a perfect follow-up to “the right of the people” enunciated by the signers of our Declaration of Independence. That earlier document asserts that it is “the right of the people” to institute new government as a free state. The Second Amendment adds to this that it is also “the right of the people” to keep and bear arms to make the state secure.

New government was instituted by that body of the people who were qualified and registered to vote. Under the Second Amendment, state security was to be maintained by that body of the people who were qualified, enrolled, and liable to bear arms under what Washington called “a well regulated Militia Law.”

It is easy to see why Thomas Jefferson, who later claimed to have had influence in Madison’s selection of topics for the Bill of Rights, referred to the Second Amendment as a provision for “the substitution of militia for a standing army,” not as a provision for carrying arms on private missions.

Posted by: leifrakur2 | January 20, 2011 5:48 PM | Report abuse

liefrakur2, the omission of any specific reference to private arms carrying is not the same as restricting it; especially in light of the fact that a majority of households owned private arms at the time. the concept of restricting private arms was not really a consideration at the time, as they were often considered to be a necessary household tool for hunting and protection against thieves, pirates, indian attacks, etc. In fact, as you pointed out, "the substitution of militia for a standing army" inherently assumed that said militia would most likely be self-armed, as they had been during the revolutionary war and again during the war of 1812(reference "Mititia in the war of 1812" in "Encyclopedia of the War of 1812" by David Heidler). There was a heavy distrust of standing military forces for quite a long time after these wars, and it is unlikely that Jefferson ever even considered the idea of regulating private arms- carrying them was second-nature for people in most frontier communities, and we had not even started any real westward expansion into the new Louisiana territory at the time.

Posted by: stardust3 | January 21, 2011 2:11 PM | Report abuse

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