During oral arguments before the Supreme Court in the D.C. gun ban case, nobody saw the elephant standing in the room.
What elephant? Why, the same elephant that preoccupied the drafters of the Second Amendment: Should we have a strong central government,and what redress would the states and the people have if it got too strong?
At the beginning of our constitutional republic, there were two strong factions: the Federalists, who favored a strong central government (at least one stronger than existed under the Articles of Confederation), and the anti-Federalists, who feared the new government would usurp state authorities and imperil personal liberties.
James Madison, the father of the Constitution and a leading Federalist, almost mocked those fears (writing as Publius in Federalist No. 46). It was “beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States.” Federal “encroachments” would be signals of “general alarm.” A federal yoke would arouse as much “dread” as a foreign yoke and would lead to a “trial of force” just as the latter had led to rebellion against the Crown. In such a trial, Madison thought, the federal government could hope to field a standing army of no more than 30,000, which would be opposed by a “militia amounting to near half a million of citizens with arms in their hands.”
Even this language was not strong enough to mollify the anti-Federalists, and the Second Amendment was the writing in stone they demanded.
There’s your elephant. The Second Amendment was directed at the new federal government as a warrant against federal encroachments, usurpations and tyranny. Even Alexander Hamilton, the most outspoken of the Federalists, would be aghast at seeing this warrant being brushed aside as an antiquarian relic in oral arguments before the Supreme Court.
The District of Columbia is focusing on “the devastation worked by handguns.” The nine justices appear to be focusing on whether the Second Amendment creates an individual or collective right. Nobody has highlighted the fact that the Founders were agreeing to tie the hands of the federal government created by the Philadelphia Convention — and only that government.
Some will immediately reply that the “doctrine of incorporation” woven by successive courts out of the nebulous strands of the 14th Amendment is what renders the elephant invisible. Just so. That historical fact is, indeed, what the court should be focusing on now that plaintiff Heller’s complaint and the District’s appeal have thrown the issue into its lap.
Some pertinent questions: How is interpretation of a later amendment permitted to antiquate the original understanding of the Second Amendment, render the Ninth and 10th amendments historical oddities, and generally stand the pristine Bill of Rights on its head, such that those rights are undermined as bulwarks against federal encroachments and mysteriously made into cudgels against the states and the people they were intended to protect?
This case gives this court the opportunity to correct the most egregious and pernicious of its predecessors’ errors. Politically, conservatives should relish the chance to reconstitute the original warrant against domestic tyranny — and, by the way, to erase the pathways by which federal gun laws, prayer in schools and abortion on demand were imposed on our polity.
Liberals, for their part, should welcome a decision that would allow the District, big cities and blue states to legislate to their heart’s content on guns — unless the constitutions of those states protect the right to bear arms.
At the state and local levels, we can argue our case in terms of personal liberty and public safety. At those levels, we need fear neither an irresistible tyranny nor the prospect of a trial by force.
Frank Creel writes from Arlington.
