Historians on the Second Amendment, cont.

I’ve read, or rather skimmed slightly more thoroughly than previously, the two aforementioned historians’ briefs in DC v Heller. And I revise more former pro-DC-side judgment: my sympathies are now with neither.

What struck me most was how similar the bulk of the two briefs were. Both discuss at length the history of the second amendment and its antecedents in the context of the lively discussion of militias and standing armies; lots of good detail in both. They “merely” draw different conclusions from that context: one that the second amendment guarantees that the federal government could not allow the militias to languish unarmed or underarmed, the other that the second amendment guarantees an individual right as a mechanism to an end (the militias again), and that the right survives even if the purpose does not. (I am of course oversimplifying, especially as regards the pro-gun brief, which also discusses “bearing arms” as a civic virtue. And I’m sure I’m missing important points).

I draw neither conclusion; as I’ve said before I think the result of the history is an interpretive mess. For at least two reasons: first, the fact that the major premise in the militia cluase no longer holds (decided, as some wag noted, in the case of North v South, 1865); and second, that the actual text was the result of much discussion and compromise–I have to assume that the Framers were no more unified in their views of the particulars of the 2A as any set of politicians are on anything, and the records cited by both briefs seem to me to support that. The current discussion of individual versus collective rights is, in my view, at best a feeble attempt to make sense of the history, and at worst an impediment to understanding it.


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