Thursday, January 17, 2013

Bogus History

The Second Amendment was not enacted to provide a check on government tyranny; rather, it was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control. In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions. - Carl T. Bogus
If you click the link, you will be directed to the law review article, "The Hidden History Of The Second Amendment" from the University of California at Davis Law Review 31 (1998): 309.  I won't comment on the article itself, offering it only as an antidote to so much of the nonsense out there, such as this:
 The primary purpose of the Second Amendment is to ensure that the citizenry has a fighting chance to resist tyranny
When people write this, they are exploring the deep recesses of their ass.

I will include the following detail that is left out of most history text books.
This was a no- holds-barred struggle, and the adversaries pressed every available strategic or tactical advantage. The following example gives a sense of the intensity of the struggle. The day after delegates to the Philadelphia Convention signed the proposed new Constitution, Federalists sought to have the Pennsylvania Legislature, which had been meeting upstairs at the Philadelphia State House while the Constitutional Convention was in session downstairs, vote to convene a ratifying convention in Pennsylvania two months hence.[64] Lacking the votes to defeat this proposal, the anti-Federalists sought to block the measure by failing to return after the noon recess, thereby preventing a quorum.[65] The legislative session was due to end the next day, and without a quorum there would be considerable delay before the Pennsylvania Legislature could consider the matter again.[66] The Federalists, capitalizing on the opportunity to create a sense of momentum by having Pennsylvania vote to convene a ratifying convention before the ink had dried on the proposed new Constitution, directed the sergeant of arms to fetch the missing members.[67] The sergeant located two¾ just [Page 325] the number needed to complete a quorum ¾ escorted them against their will back to their seats in the State House, and barred the doors until the assembly voted by a narrow margin to convene a state ratifying convention.
I should add that, while important, this history shouldn't drive people to insist the Amendment is either irrelevant or unnecessary. It's important only to make clear that the insistence the Federalists supported armed insurrection, while nonsensical from a logical point of view, isn't supported by the actual historical record.  How courts interpret the Amendment today, and how those interpretations impact how we regulate or do not regulate firearms in this country should rely on contemporary jurisprudence, keeping the history only as a touchstone rather than front and center.  After all, I don't want our understanding of any of the Constitutional Amendments limited to their meaning at the time of ratification.  That leaves no room for growth, change, or for the Amendments themselves to continue to live and breathe in different historical settings.

I do feel sorry for a guy named Bogus, I gotta admit.

Virtual Tin Cup

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