The President has taken up skeet shooting to show gun owners that his various gun control proposals and executive orders are nothing personal. But, personal or not, the first question in this debate remains not what the President says, but what the Constitution says.
The Second Amendment strikes me as particularly anti-federalist in origin and construction. Critics of the new order did not believe that the constitutional machine would reliably run of itself. They wanted to specify a number of rights, among them guarantees from the English Bill of Rights, including, both for public and private safety, the right to keep and bear arms — but with a difference.
In Britain, the gun right was qualified by class and confession, limits entirely unsuited to the new nation based on universal rights. Then, too, Britain’s government was unitary, while under the new American charter sovereignty was divided.
As did no other protected right, the scope of the British gun right traversed the borders of federal and state sovereignties. For example, invoking private safety would have implied federal police powers. How to guarantee the right without implying that the federal government possessed powers not intended for it — and that anti-federalists especially were determined it not acquire?
The answer? With these phrasings:
- “A well regulated militia being necessary to the security of a free state” grounded the amendment within the federal reach agreed upon at the 1787 convention;
- “the right of the people” established universality;
- “shall not be infringed” acknowledged that the right already existed (hence, could be infringed upon), thereby incorporating into the U.S. Constitution the full sweep of the protection without explicitly referencing the British law and tradition that defined it (another drafting necessity).
Inconvenient though it may be, our core law still matters, at least for now. For the federal government, that law is clear: “The right of the people… shall not be infringed.” Wouldn’t it be more productive anyway to focus on the violently insane, both to keep guns from them and to provide care for them?
The preceding is, of course, my reading of law and history. What is yours?
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