About 3 ½ years ago, I wrote a post for Mormon Matters entitled “Prooftexting for Fun and Prophet.”
As explained, prooftexting is using quotations from a document to establish a point or prove something whether or not that quotation is in context or not. While its use is pretty universally applied in many areas of scholarship, it is quite often used in religious settings.
That’s what I discuss in that post.
In this post, I wanted to address the issue of selective interpretation, which I think, is not exactly a defined term in the same way as prooftexting. And it is pretty much self-explanatory. And while it can easily apply to religious matters, I wanted to discuss it as it related to the US Constitution and guns in particular.
Now, I am not an attorney nor a constitutional expert, but I have been curious how some simple words that seem so straightforward to me, have gotten to where we are today in the gun debate. In this post, I am not arguing for or against the right to own guns.
Before I get into that, I’d like to point out that over the history of this country, the constitution has been used to justify things like slavery and restricting the right to vote to minorities, the treatment of native Americans, prohibiting women from voting and owning property, child labor and a number of other things considered to be quite wrong by today’s standards and eventually prohibited by that same constitution. However, in some of those cases, it wasn’t the constitution that changed, but the interpretation of it. In some cases, it was actually changed to prohibit behavior (like owning slaves), once permitted by it. And while Supreme Court precedence (or prior decisions) carry a lot of weigh on future decisions, at various times the justices have not had a problem ignoring it, if it suits their purpose.
And finally, the law and the intent of the constitution also carry a lot of weight, but that too, can be disregarded in favor of the majority ideology.
The United States Bill of Rights is a collection of 10 amendments to the US Constitution dealing primarily with personal liberty and property rights. In some academic circles, they are portrayed as an afterthought to the US constitution as they were enacted and ratified more than 2 years after the constitution. There was much consternation about the adoption of those rights with some claiming that they were not needed. However, it was James Madison who wrote the first draft of the rights and eventually on December 15, 1791, Virginia becomes the 11th state to ratify the Bill of Rights and it went into effect.
The 2nd Amendment reads as follows:
“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.”
For more than 200 years, the 2nd amendment was pretty non-controversial. Even the discussions in the House of Representatives during the debate over the Bill of Rights, centered on whether or not the militias would be federal or state. And early drafts specifically prohibited people from being compelled to have arms. At no time in the discussions were personal protection or self-defense or the right to bear arms outside of a “well-regulated militia” brought up according to the materials I reviewed.
What is somewhat interesting to note is that for many years after the revolutionary war, many citizens were not in favor of a standing or professional army due to the enormous expense during peacetime and preferred the English system of militias, an irregular army of citizens called up on demand. However, a standing army was created by the second Continental Congress and the militias filled in as needed. But initially, the Federal Government gave itself authority for “organizing, arming, and disciplining” the militia, and “governing such Part of them as may be employed in the Service of the United States”, with the States retaining authority to appoint officers and to impose the training specified by Congress. It wasn’t until the Militias Act of 1903 that divided what had been the militia into what it termed the “organized” militia, created from portions of the former state guards to become state National Guard units.
Even with this interpretation of the Constitution, the long-standing tradition of personally owning firearms was not prohibited and was regarded as important for these reasons, to name a few:
- Personal protection
- Law enforcement
- Deterring a tyrannical government
- Repelling invasion
- Hunting
However, one can see that in the early days of the nation’s history, without organized militias and police and, the sparsely populated areas, this may have been more necessary than today.
Jump forward to the 20th century. The debate over the personal ownership of firearms began to take on a whole other dimension. Namely, whether the right as explained in the Second Amendment was an individual right or a collective right. Three schools of thought emerged specifically around what was the operative clause of the amendment. (United States vs. Emerson)
The first, known as the “states’ rights” or “collective rights” model, was that the Second Amendment did not apply to individuals; rather, it recognized the right of a state to arm its militia.
The second, known as the “sophisticated collective rights model”, held that the Second Amendment recognized some limited individual right. However, this individual right could only be exercised by members of a functioning, organized state militia while actively participating in the organized militia’s activities.
The third, known as the “standard model”, was that the Second Amendment recognized the personal right of individuals to keep and bear arms.
All of this came to a head in the landmark case known as District of Columbia vs. Heller. In this 5-4 Supreme Court decision, some 200 years after the ratification of the Bill of Rights, the individual right to own guns was affirmed striking down the Firearms Control Regulations Act of 1975 passed in the District of Columbia.
The conservative majority held that the Second Amendment protected an individual’s right to possess a firearm for lawful purposes, thereby nullifying the preamble to the Amendment itself. However, it did not extend that right down to the states and a later decision, McDonald vs. Chicago in 2010 did that.
What it did not do was create an unlimited right to bear any and all firearm types. To quote the decision:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
In the dissenting opinions, the other justices argued against such a “liberal” reading of the Amendment and that it was “strained and unpersuasive,” overturning long held precedent. In the other dissent, Justice Beyer sites old municipal law from Boston as an example to conclude “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
In conclusion, I am using this example to make the point that interpretations change over time depending on a number of key factors including current mores, political and ideological persuasion, and other factors.
Just like the Bible, for example, everyone reads into it based on their own persuasions. And to those who demand a strict interpretation of the US Constitution, even the most educated legal minds in the nation, conservative or liberal, cannot even agreed to that.
Wheat & Tares 
Thanks for this, very insightful post! And you somehow managed to talk about the 2nd amendment without bringing in a single strawman argument. Nice work:)
Excellent well written article! The Constitution was designed as a living document, intended to be flexible and changeable as times and views change. http://en.wikipedia.org/wiki/Living_Constitution
Jeff,
I thought the post was well done as well.
Thank goodness for the second amendment and the right to carry and use a gun; and, like me have a loaded weapon on my person and in my cars at all times.
I was a bit disappointed, even people in one of the most conservative counties (davis) in the most conservative states have issues with this right. Not far from me a guy shot some intruder and some people are freaking out. Clearly, they don’t understand why God gave us guns via the constitution.
Jeff, nice to see your writing again. Well done.
Will,
Are you some LDS version of Stephen Colbert??
“. . . God gave us guns via the Constitution”???
Will,
Just curious, why do you feel the need to carry?
Roger,
The beauty of our constitution is that we believe our rights to be from our creator and not some elected or appointed government official.
Chief amount these rights is the right to life and the right to defend our life. And as Obama said you never want to take a knife to a gun fight.
Also, If you ever had the opportunity of shooting an AR, you would appreciate the right to happiness.
I’m glad you mentioned Chicago Jeff, as Chicago is a shining example of how effective strict gun control measures are. Huh?
It should be kept in mind that the Constitution itself, starting with “We the People..” (and I still can’t get that “Schoolhouse Rock” jingle outta my head when I read the Premable, LoL!) was set forth to both describe AND circumscribe the Federal government, it being the creature of the several states and the people. Over the 226 years since being submitted for approval, starting with Delaware (whose greatest contribution to our American experience is still, IMO, “Punkin Chunkin” which I happily haunt every November), it has metastasized into the multi-trillion dollar monstrosity we all know and pay burdensome taxes to.
Yes, there are changes as a result of INTERPRETATION of the Constitution. For about the first hundred years or so, it was more on the line of did the Congress have the authority to regulate and or tax on a particular subject? For example, slavery was, of course, long contentious, though until the horribly-misnamed “Civil” War there was little impetus to actually abolish it. Many great legal minds of the time felt that regardless of their own personal disdain for the practice, that the Federal government didn’t have the right to deprive citizens of their (live) property at the stroke of a legislative pen. The issue was ultimately decided by violence perpetrated by the Central government on its once citizens, and decreed by Presidential fiat (Gettysburg address, which actually freed almost no slaves of itself), and ultimately by the Thirteen Amendment, which conveniently had no commentary by even rump legislatures of the several Confederate states whom endured the greatest effect therein.
At least the recent Supreme Court decisions affirmed what was commonly understood when enacted: that the right to keep and bear firearms is an INDIVIDUAL right, and not some vague notion that the states may organize a militia. Saying that there are LIMITS isn’t necessarily remarkable. Let’s hope that the criminal and the crazies are exceptions for whom we have to take stern but hopefully humane measures to protect society, including disarming them for obvious reasons. We also essentially take away Fourth Amendment rights from felons since they have no right to resist personal searches and that of their domiciles, whether incarcerated or paroled. Again, it’s a question of common sense and reasonable, lawful law enforcement. The Constitution is for the sane and law-abiding. As long as it constitutes (no pun intended) the 95th or greater percentile of the populace, then we should be ok. Any greater portion of the population being mentally or morally unfit, and we’re in trouble.
And yes, the all-powerful, or so they think, Feds did NOT bestow upon us our rights, Second Amendment included. They ALREADY existed, and the Bill of Rights only reaffirms what was commonly understood when enacted.
Jeff:
By and large a very good post about a difficult topic approached without rancor.
I certainly agree that interpretations of both law and scripture do change over time. However, predicting that change will occur is NOT equiv to predicting how things will change. Grand theories of history often apply, even if correct, only over timescales long compared to a nation’s time in the sun.
A hundred years from now we may all have our personal anti-missile defenses automatically triggered by our surgically implanted eye cams, or we may all be scrabbling for food like North Korean peasants, or anything in between.
Firetag,
You are correct that we have no idea what things will change to in the future and what interpretive skills will be used to gerrymander the constitution into something it is not currently.
I think we all realize how important it is if the political parties drool over the opportunity to appoint one of more Supreme Court judges per term. the political or ideological makeup certainly comes into play.
Douglas,
I know you have a hard time accepting the fact that the 2008 Heller vs. The DC was a re-interpretation of the Second amendment and then re-affirmed by the McDonald decision.
While gun ownership was not disputed very much over the previous 200 years, the Federal government did have the ability and to some extent, still has the ability to restrict ownership by individuals. While Heller did affirm personal ownership, it is not absolute as written by the majority themselves.