Originally published May 7, 2014 at 7:05 PM | Page modified May 8, 2014 at 12:02 AM
History, politics and law are all tangled up in contemporary court interpretations and public understanding of the Second Amendment, and politics is the greater part of the mix these days.
Last week, I wrote that weve so misread the amendment that maybe we ought to get rid of it. Thats certainly not on the horizon, but the idea drew a strong response and suggested to me that a review of the amendments history might be helpful. (Some of the responses also reinforced my belief there are many people who should not be allowed anywhere near a gun. What does racist name calling have to do with gun rights anyway?)
One theme that ran through comments supportive of unrestricted gun-ownership rights was that it is necessary for individuals to own guns to protect themselves against both crime and the U.S. government, and that the framers of the Constitution intended for the amendment to protect that individual right.
Thats a new way of reading the amendment.
I heard from Michael Schein, an attorney who handles appeals and who taught American legal history for 15 years at the University of Puget Sound and Seattle University.
Dont blame the framers, he wrote. For 217 years, the law under the 2nd Amendment was that it only protected possession or use of a firearm by well-regulated militia forces. … It contained no right of personal self-defense until 2008, when the Supreme Court in a 5-4 vote brought that interpretation to its ruling in District of Columbia v. Heller, which limited the Districts gun-regulation law.
Wednesday I called Schein, and we talked about the amendments history and current interpretation. Its heavily politicized and wrapped up in peoples emotions, so its difficult to get to the facts underlying it in any objective way, he said.
The Constitution was written to create a more effective federal government, but some people worried the government would trample on the rights of states and individuals. The Bill of Rights was intended to mollify them and make ratification of the Constitution possible. Some were particularly concerned that the federal government would form a standing army, and they wanted assurances that state militias would be in a position to fight against such an army if it came to that.
James Madison was tasked with drafting the amendments. Some of the states had asked for a personal right in one amendment, but he didnt include that. Instead he used a version of Virginia law that dealt with militias.
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Second Amendment in real time boils down to politics