Taking a Big Bite Out of the Second Amendment
by Saul Cornell on Jan 23, 2005
The struggle over ownership of guns in the United States has taken a dramatic turn. In the midst of the winter holidays, when you could bet that everyone’s mind was elsewhere, the U. S. Department of Justice decided to revise the Second Amendment.
This latest example of politically motivated historical revisionism completes the task begun by John Ashcroft in 2001 in his infamous letter to the National Rifle Association, which cast aside a hundred years of Justice Department policy on how to interpret the Second Amendment. Now the Department of Justice has produced a hundred-page memo designed to give activist judges a historical pretext for striking down existing gun laws.
Ironically, rewriting the Bill Of Rights has been pawned off as nothing more than a return to the original understanding of the amendment. Yet this revisionist interpretation has nothing to do with the original understanding of the Second Amendment. The Second Amendment adopted more than two hundred years ago reads: “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.” The department’s newly revised Second Amendment reads, in effect: The right of individuals to keep and carry guns shall not be infringed.
The Department of Justice has thus erased the preamble, which states the purpose of the amendment, to create a “well regulated Militia.” The new version of the amendment crafted by the Department of Justice goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times. In effect, the Department of Justice believes that it can simply expunge language which it finds inconvenient and substitute language more ideologically suitable in its place.
The department’s novel idea that the preamble of the Second Amendment has no binding force would have certainly shocked the Founders. The most popular legal dictionary used by the Framers of the Second Amendment describes the purpose of “The Preamble of a Statute” as providing the “Key to the Knowledge of it” since it establishes “the Intent of the Makers of the Act.”
Another bizarre claim made by Second Amendment revisionists is that the Framers of the amendment thought that bearing a gun and bearing arms were legally synonymous: hunting bears becomes the same as bearing arms. The illogic of the claim is easy to demonstrate. Quakers were religious pacifists opposed to war. Thus, a Quaker might bear a gun in pursuit of a deer, but he would never bear arms. To be conscientiously scrupulous about bearing a gun makes you a vegetarian, not a pacifist!
Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution. Substituting the ideas of the losers for the winners turns history into a science fiction fantasy, in which one might as well argue that the Patriots lost the American Revolution, or the South won the Civil War.
For better or worse, the real Second Amendment links the right to bear arms with a well regulated militia. If Americans want to change this language it will have to be by the slow and uncertain process of amending the Constitution. Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.
Saul Cornell, a writer for the History News Service, is an associate professor of history and director of the Second Amendment Research Center at the John Glenn Institute, The Ohio State University. He is the author of the forthcoming book, “‘Armed in the Holy Cause of Liberty:’ Guns and the American Constitution.”