William Hogeland on the Second Amendment

With the American public once again focused for a time on how our policies enable crazy men to easily obtain guns, William Hogeland, author of The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty, wrote a thought-provoking editorial for Alternet arguing that debates over the U.S. Constitution’s Second Amendment are bound to end in a muddle:

The realpolitik in which the Second Amendment was framed, during the first U.S. Congress of 1789, involves some unedifying but illuminating features. The amendment was a response to the federal government's power over state and local militias, as set out in Article I, Section 8, of the Constitution. That provision had been among the most hard-fought at the Constitutional Convention of 1787. Delegates committed to state sovereignty feared—rightly enough—that if the federal government were empowered to control the state militias, states would lose sovereignty.

In that elemental debate lay the beginning of a perennial American disingenuousness regarding arms and rights. Delegates led by James Madison wanted to create a national government, directly acting on and protecting all citizens, throughout all states. To achieve it, they had to play down how entirely they wanted it, how nearly utter the states’ loss of power would be. Madison’s convention notes show Madison himself, along with other nationalists, minimizing the impact of the federal militia power in order to soothe certain delegates’ fears of losing state sovereignty.

As we know, the nationalists got what they wanted. Despite concessions to their opponents’ ideas about state sovereignty, we became a nation. And critical to that achievement was the constitutional provision giving the federal government control of states’ military institutions.

So when amending the Constitution, Madison continued to prevaricate. Former antifederalists in Congress and the state legislatures still resented the federal power to control militias; they were hoping to use the amendment process to regain some military control and thus retain some sovereignty. In the Second Amendment, Madison tried to defeat those hopes by placating them without really addressing them. The amendment gestures vaguely at state sovereignty in a way intended to make little practical sense. . . .

We argue fiercely today about the intended relationship between the famous opening phrase (“A well regulated militia, being necessary to the security of a free state,”) and the famous main clause (“the right of the people to keep and bear arms, shall not be infringed”). But it’s fruitless to try to nail down that relationship, to hope to prove for good and all that the opening phrase is or is not a preamble, or that a preamble does or does not determine the meaning of a main text, or that a “being” phrase means something different from or identical to a “whereas” clause.

The sentence is weak. The weakness is deliberate.

Madison was, after all, one of the republic’s smartest politicians. He steered the amendment-writing process as much as he could so the results didn’t impede too greatly on his vision for the federal government at that time. It’s striking how little resemblance there is between the amendments proposed by state ratifying conventions in 1787-88 and those that came out of the first federal Congress. (Here, for instance, are the assurances New York wanted.)

TOMORROW: The Second Amendment’s historic moment.