Sunday, 30 December
Good Morning Jack…
Erwin Chemerinsky’s Constitutional
Law is your standard-sized college textbook. It’s appendix includes the text of the U.S.
Constitution. It’s seven articles were
written in 1788. The first ten
amendments were added in 1791. Together
they take up just over ten pages. The
remaining seventeen amendments add another five pages to the document. That is the entirety for what serves as this
nation’s most fundamental laws. It’s
very brief. The Constitution’s Second
Amendment is but one sentence. It reads:
A well regulated
Militia, being necessary to the security of a free State
It is brief, isn’t it.
It is also somewhat ambiguous. The
clause giving people the right to bear arms is prefaced with the initial phrase
“A well regulated Militia”. It then explains the rationale for such a
Militia: “being necessary to the security of a free State
The right of the
people to keep and bear Arms shall not be infringed.
If this is what the founding fathers meant why didn’t they
make this right more clear, more certain, without adding the preceding
condition of a well regulated Militia? Certainly they meant for citizen’s of
frontier America
to own a musket – for defense, where otherwise there often was none, and to
provide their family with meat through hunting in the surrounding forests and
glades. They included an element that
creates uncertainty and, I think, deliberately so.
The writers of our Constitution were wise enough to know
they could not anticipate circumstances of future generations. If their document was to remain relevant over
the years it had to be capable of interpretation within the context of a
society’s problems, challenges and contemporary sensibilities. This didn’t give lawmakers two hundred years
in the future license to refute fundamental Constitutional principles but,
where there was room for honest argument as to the meaning of a clause, there
was also latitude for interpretation.
The Second Amendment certainly supplies this latitude.
The gun owner of Eighteenth Century America had a smooth
bore flintlock weapon that was capable of being fired up to three times in the
space of a minute by an experienced shooter.
The nation was largely rural and families were on their own, self
reliant for most everything they would need to survive in a potentially hostile
environment. In this environment it was
clear to the writers of the Second Amendment that people needed their
firearms. But would this always be the
case? During this period, administered
by George Washington, who among the populace could foretell America
of the Twenty-first Century? Obviously
no one, and the Constitution’s writers were wise enough to know it. When they felt it necessary they wrote laws
in a fashion that would allow the judges of future Supreme Courts to determine
a law’s meaning – within the context of a nation’s needs. The Supreme Court makes our Constitution a
living document because its rulings unavoidably reflect contemporary
circumstance. The judges themselves,
more often than not, reflect the philosophy of the democratically elected
representatives who appoint them and approve their nomination to sit
on the Court. The Constitution’s writers
attempted to limit its scope to fundamental principles that would provide the
foundation for a healthy government, free people and a vibrant, dynamic
society. The document’s language was
vigorously debated. Compromises were
made. No one claimed its
perfection.
We are each daily immersed with news of dispute, turmoil and
folly. In this context it seems the
wisdom of the Founding Fathers has been lost somewhere between then and
now. I think not. Given what they knew of the squabbles of
their time I doubt the lawmakers of George Washington’s era would think so,
either.
Happy New Year, Jack!
Love,
Dad
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