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Joseph Ellis’s American Monologue

For many Americans, the Founding and first years of the republic remain a touchstone for politics. One can readily find analogies for practically every situation in this early history, yet the Founding’s legacies will always be contested. Despite significant disagreements in how to interpret the period, on the Right the Declaration and Constitution offer reminders that the goal of good government is to unite limited government with energy, as well as a salutary warning that no political compromise is morally pure. With similar internal debates, the Left has continually found an inspiration in the Declaration of Independence but struggles to balance a respect for the Constitution with their perception of its lingering injustice—to say nothing of the way the system itself fails to achieve egalitarian and democratic purity. We continue to orbit around the Founding; no velocity we achieve seems sufficient for escape.

Eminent historian Joseph Ellis has spent the majority of his long career studying the men that formed and led the nation in its early years. He knows their virtues and vices, and is well-positioned to craft an accessible book that grapples with how we might approach the Founding in light of present concerns—and in particular, one that shows the ways that people across the political spectrum still find inspiration in the words and deeds of the Founders.

There is no way such an effort could avoid a partisan vision. Ellis admits that every view is partial and that in the “writing of relevant history, there are no immaculate conceptions.” That said, he claims to aim at a basic sort of historical “detachment” and anti-ideological fairness. Unfortunately, Ellis’ latest book, American Dialogue: The Founders and Us, offers an argument tailored to deprive his political opponents of a usable Founding.

A Historian’s Creed

Ellis opens American Dialogue with a professional confession of sorts, an anxious embrace of ambiguity—one that offers a bit of insight into the assumptions he brings to the past:

Self-evident truths are especially alluring because, by definition, no one needs to explain why they are true. The most famous example of this lovely paradox . . . is the second paragraph in the Declaration of Independence . . . where Thomas Jefferson surreptitiously embedded the creedal statement of the American promise . . . .

My professional life as a writer and teacher of American history has been informed by another self-evident truth . . . . The study of history is an ongoing conversation between past and present from which we can all learn.

Ellis offers a bit of conventional wisdom here, but at the same time, he cannot quite bring himself to observe the deeper reasoning that Jefferson, Adams, and Franklin brought to writing and editing the Declaration. They did not secret away the “American promise.” On the contrary, they stated an axiom they believed to be essential to republican government, and offered common law reasoning that condemned an overreaching King and Parliament. In his famous 1825 letter to Henry Lee, Jefferson called the Declaration “the expression of the American mind,” a document that articulated a long-held Anglo-American tradition of theorizing about political resistance to tyranny. He recognized that to be worthy of self-government, citizens had to see themselves in a special way: as the kind of beings endowed with rights, deserving of respect, and upon whom political judgment depends.

Early in the book, Ellis identifies four obstacles to the American promise, and each of these four becomes the subject of a pairing between the past and present. To engage with the challenges of race in America’s transformation from a nation of European descent to a truly multicultural society, Ellis looks to Jefferson. Adams’ anxieties about oligarchy provide Ellis a mirror for the inequalities of our globalized world. For Ellis, our politics today is beset by the “sclerotic blockages of an aging political architecture,” and he turns to Madison for help to argue how misguided attempts to engage in constitutional textualism really are. A final chapter on foreign policy suggests that Washington might help us understand how America has become mired in “the impossible obligations facing any world power once the moral certainties provided by the Cold War vanished.” With each of these pairings, Ellis seeks to understand contemporary dilemmas in light of his chosen subjects’ experiences, and this approach delivers very mixed results.

Ellis believes the past to be usable, and he asserts that what people will make of it can be quite idiosyncratic—he offers several examples of how students believed their lives to be enriched by exposure to history in support of his own “self-evident truth.” But he also wants to tell a very detailed story that divides what he sees as the legitimate lessons of the past from those that are abuses. In particular, Ellis elevates the value of argument itself as the great lesson we ought to draw from the Founding. In Ellis’ view, it’s just fine for us to love and be inspired by the Founders, but not for anyone to use them in ways that might derail the march of progress.

Impossible Originalism

At the outset of his chapter on law, Ellis likens originalists to Christian fundamentalists, “both groups insisting that our lives in the present must be guided by principles embedding in language long ago and in the intentions or meanings of the authors of those sacred, or semi-sacred, words.” The historical background he offers to support this conclusion is essentially that because there was disagreement at the Founding, this “throws a cloud of confusion over all pursuits of the original meaning of the document itself, in part because his [Madison’s] position kept shifting, in part because the shifts were not voluntary changes of mind but rather mandatory adjustments to changing political circumstances.”

While the Constitutional Convention ought to provide a strong basis for Ellis to help us grasp the way Madison and others reasoned about law, instead he uses the historical record simply as a means to claim that the disagreements among the Framers convinced Madison that argument itself was what mattered. Thus Ellis claims that for Madison, “argument itself became the abiding solution, and ambiguity the great asset that ensured the argument could never end, making the Constitution an inherently ‘living document’ that successive generations would interpret in light of changing historical circumstances.” Nowhere does Ellis recall that one of Madison’s overriding goals was stability and the cultivation of the rule of law. He understands that Madison valued constitutional discourse—and that Madison thought it was vital for citizens to engage in—but his characterization of Madison’s reasoning about how and where this debate might occur and why it matters is particularly shallow.

As they debated the Constitution itself, and later the constitutionality of particular legislation thereafter, Madison and the other Framers understood that they were drafting with an imperfect medium that would require clarification through the practice of politics itself. They understood themselves to be establishing lasting principles of good government but also crafting a political process whereby a republican people could govern themselves. In Federalist 37, Madison writes,

All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.

But Madison held that the debate itself would and should occur among the educated public, among the people’s representatives, and between Congress and the Executive—not simply decided by fiat in the courts, a point which Ellis seems entirely unaware.

When Ellis moves from the Framers to the present day, he dedicates particular energy to an attempt to show that many of Justice Antonin Scalia’s opinions fail to respect history, and bears particular animus to Scalia’s opinion in District of Columbia v. Heller. The trouble is that Ellis misunderstands the lineage and practice of originalism almost as badly as he distorts Madison’s view of constitutional debate.

Ellis takes no account of any of the sprawling proliferation of the meaning- rather than intent-driven originalisms that now dominate the current debate. Indeed, he develops a potted history of originalism’s origins, dating it to an obsession with great books in “the curricular culture at the University of Chicago,” and Robert Bork’s yearning for a means to end the progressive stranglehold on constitutional law. But this ignores originalism’s lineage as an interpretive approach. Ellis ignores the degree to which the Framers themselves were committed to reading and arguing about constitutionalism with a sincere attention to the meaning of text alongside the imperatives of liquidation.

Rather than use history to show how progressive and conservative constitutional interpretation flow from historical experience, Ellis simply tries to deny that there ever has been such a thing as legitimate constitutional textualism. It’s less a genuine criticism of the originalist enterprise than an existential scream against the very idea that the Constitution offers enough legal clarity to present a genuine barrier to the legislative or executive branches.

And yet, almost comically, in the very same account of the Constitution which Ellis insists is riven by ambiguity and incapable of fixing meaning for present-day politics, he inveighs against the contemporary originalist view of the Second Amendment. By his telling, the debates surrounding the Bill of Rights and the Militia Act of 1792 should force us to view gun ownership only in the context of mandatory national service rather than individual rights. Therefore, he concludes that the Second Amendment offers no legal rights in the present day.

This willfully narrows the scope of the debate the First Congress held on this subject, where the assembled delegates never suggested that owning weapons could be restricted to members of the militia. It omits the representatives’ deep concern for giving citizens the right to employ arms as responsible citizens, for both “Common and Extraordinary” occasions—that is, usages ranging from hunting, through protection of life and property, and ultimately, armed defense of their liberties against tyranny. Neither the Founders’ intent in establishing the Second Amendment nor the original meaning of the discourse surrounding this fits with Ellis’ interpretation.

However, this distortion isn’t only a matter of partisanship on Ellis’ part: just as he does with the Declaration, he finds the idea that Congress may have intended to recognize principles they believed to be true in passing the Bill of Rights to be entirely unthinkable. Instead, he observes that Madison’s list of amendments, most of which became law, was simply

a codification of rights based on the previous thirty years of American history, most especially the lessons learned in opposing the policies of the British ministry in the run-up to the Declaration of Independence. What has come to be regarded as a set of timeless truths was, in fact, a distillation of the political experience of the revolutionary generation.

This ignores just how old and well-established the recognition of these principles were in Anglo-American constitutionalism, to say nothing of the broader European tradition of thinking about law in a principled way. He continues:

The special status the Bill of Rights has enjoyed over the ensuing years is in large part a function of its placement as a separate document, in effect an elegiac epilogue to the Constitution.

Against the entirety of the natural law tradition, Ellis appears in these passages to endorse the idea that practice cannot be informed by truth. Rather than being mutually exclusive, a prudential politics can and should be about both principles and experience—it must be. But where Madison aimed at establishing a lasting constitutional regime rooted in a frequent recourse to first principles, Ellis finds nothing more than the rough-and-tumble of political debate, whose principles are merely of historical curiosity.

The Historian’s Authority

Similar oddities abound in Ellis’ account of Thomas Jefferson’s relationship with questions of race and in his personal conduct. It is hard to dispute that “a racial fault line runs through the center of the American experience,” and “that issues of race and the legacy of slavery remain hotly contested.” Ellis also argues that Jefferson himself “straddles that divide with uncommon agility, making him our greatest saint and greatest sinner, the iconic embodiment of our triumphs and tragedies.”

This account places tremendous emphasis on Jefferson’s private life rather than his efforts as a thinker and statesman. Ellis offers the opinion that Jefferson was definitively the father of Sally Hemings’ children (and here declines to acknowledge the ambiguity that the most definitive commission of historians embraced on this question). In refusing to consider the alternatives, Ellis misses an opportunity for genuine moral complexity. For instance, if one of Jefferson’s relations fathered the Hemings children, is it better or worse that he kept them in bondage for so long? What might he have owed them?

Looking to Monticello’s design itself, Ellis writes:

When historians talk about the architecture of Monticello, they are almost always referring to the Palladian style that Jefferson had come to love during his travels in southern France. But the architecture of Monticello as a plantation is of a different genre altogether, and the design was distinctively Jeffersonian, meaning structured to make the black workforce almost invisible and to feature the light-skinned household laborers, who looked and acted less like slaves than members of the family because, in fact, they were.

Ellis offers no evidence for this observation; the paragraph in which it appears lacks any citations. Without seeing Jefferson’s own words on the subject, how can we really know what Jefferson intended with the design? And moreover, are we to believe that this allowed Jefferson respite from his own moral compromises?

Jefferson should be difficult to love, and Ellis is right to show us why. But is he—or James Baldwin, to whom he places Jefferson in dialogue—an adequate guide to the challenges of dealing with the tremendous diversity of 21st century America?

Ellis surveys what Jefferson wrote and thought about questions of race and how they related to his view of rights, but his judgments on this seem as filled with chronological snobbery as his understanding of self-evident truth. By the historian’s telling, Jefferson “opposed slavery not because it was a sin, but because it was an anachronism.” This completely misunderstands the moral universe within which Jefferson operated, and ignores Jefferson’s own words in Notes on the State of Virginia—“Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever”and in so many other works.

But let’s imagine Ellis is right for a second. If “dialogue” rather than moral truth is all there is, Jefferson’s example as a man seems an uncommonly poor guide to a moral life. If, on the other hand, he spoke the truth while living it poorly, there is still much to learn.

The Lessons of History

Ellis occasionally offers perceptive insights into either the nature of his historical subjects or the lasting lessons we ought to draw from them. His analysis of Adams and Jefferson’s musings on the power of oligarchy and the possibility of a natural aristocracy is superb, as is his depiction of Washington’s failed attempts to get Americans to respect their treaties with Native Americans. He links the former to a tendentious narrative about American inequality without once asking whether as a matter of principle inequality is actually the great evil he imagines it to be or questioning the costs that ending inequality might impose on our society’s great—and widely-shared—wealth. In writing about Washington, Ellis offers hard truths about our nation’s undeniable failure to respect treaties with the tribes, and puts this in service of a kind of realist argument endorsing restraint in American foreign policy.

The weakest sections of the book appear in Ellis’ attempts to grapple with current events. Instead of choosing frames for his arguments that would highlight a genuine dialogue using the past, he consistently leans toward partisanship rather than giving his opponents a fair hearing. This isn’t that surprising, since from his perspective, the great debates of American life have been fatally undermined:

We currently inhabit a second Gilded Age in which the active interplay within that dialogue has almost completely disappeared because belief in a prominent role for government has been placed on the permanent defensive, in part because one side enjoys the advantage of a very large and expensive megaphone that amplifies its message.

To say the least, this suggests that Ellis has a rather circumscribed notion of what “argument” entails, one that seems oblivious to the Left’s significant advantages in education and culture.

Developing an excess of certainty about one’s interpretation of a murky historical record—what Ellis derides as “law office history”—shouldn’t be the go-to approach for a book that purports to show the importance of dialogue, yet the method appears in large and small ways throughout, usually in service of the overarching themes of the book. The most jarring such example comes at the end of his treatment of George Washington. In service of concluding his otherwise-thoughtful chapter on our first president as a consummate realist, Ellis argues that the absence of clergy at his deathbed and instructions to wait three days for his burial obviously means that Washington believed “there was no such thing as heaven, either on this earth or elsewhere,” and that he clearly was not a man of any faith. Given the reticence at the time toward overtly religious talk—Christians did not speak so volubly in the terms they do today—this seems overdrawn to say the least.

By claiming to encourage and then artificially closing off a robust debate about the past’s meaning, Ellis produces a monologue and thinks it an actual discussion. This is a shame, if only because the actual struggles among the Founders offer so much insight into the challenge of creating and maintaining institutions even with an understanding of first principles, and the real dialogue between our world and theirs offers so much more lively a challenge to our political and social life than he would permit.

Reader Discussion

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on June 14, 2019 at 08:49:56 am

Just as the freedom of speech includes the right to remain silent, and the freedom of religion includes the right to be an atheist; so the right to keep and bear arms includes the right not to keep and bear arms.

When you're in the militia, just as in the military, you do not have a right not to bear arms. If your superior officer orders you to carry arms or fire your arms, you have to do so, or you will be punished for insubordination or dishonorably discharged.

For instance, in the military, the president is the commander-in-chief. If he orders you to carry your gun, you have to do so, or you will be arrested and possibly discharged. Just join the military and refuse to obey an order to carry your gun because you have a right to bear arms for military purposes (Stevens dissent in Heller), and therefore a right not to bear arms for military purposes--like your right not to speak (remain silent) and not to worship (be an atheist).

So the right to keep and bear arms must be as a civilian, where there are no orders you have to obey.

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Militia Officer 9066
on June 14, 2019 at 11:25:38 am

It is somewhat ironic that Ellis would so strongly discount the primacy of the original thought and meaning of the Constitution in our debates today (and thus by extension history's role in the same) since the only way he has anything relevant to say on current issues (being a historian of the relatively distant past) would only be if the original thought and meaning of the Constitution itself were important somehow. In other words, if the thoughts and actions of Washington, Jefferson, Madison et al and the documents they produced do not matter for their importance in the past, then why is his expertise relevant or his opinion worth listening to at all since its significance can only derive from his expertise in those individuals? Perhaps this proves the power of our nation's original context even among those who would critique that very importance. It seems Ellis has set himself up a thorny and difficult trap from which he would be hard pressed to escape...

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Jeffrey Bristol
on June 14, 2019 at 12:46:27 pm

So I don't find this argument especially compelling. People who join the military surrender a number of civil rights. Free Speech notwithstanding, they can be punished for criticizing the Commander In Chief. Free Association notwithstanding, they can be punished for quitting their jobs. Etc.

Moreover, we've had a long tradition of permitting "conscientious objectors" to decline military service--a category that would include many people who refuse to bear arms. Indeed, during the Constitutional Convention, delegates debated whether to include a conscientious objector clause when discussing the language that would become the Second Amendment.

(Silly delegates--imagining that the language they were debating had something to do with serving in the military. Too bad they didn't have the benefit of the Heller decision to inform them about the true meaning of their words....)

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nobody.really
on June 14, 2019 at 15:09:03 pm

"Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.[13]"
-Stevens' dissent in Heller

A right to free speech includes the right to remain silent, and a right to worship includes the right to be an atheist, and a right to have an abortion include the right to give birth. Since rights are voluntary they include the right not to do whatever they give the right to do. Otherwise they wouldn't be a right, they'd be a duty.

A right to use arms for military purposes would have to include the right not to use arms for military purposes. Do soldiers have a right not to use arms or do they have to obey they superior officers order to use arms when commanded? Disobeying a commanding officer (insubordination) will be punished by dishonorable discharge. There is no right to use arms in the military or for military purposes. Using arms in the military is an order given by your superiors that must be obeyed or you'll be punished for insubordination.

If you choose not to keep and bear arms as a civilian, you will not be punished. You cannot be ordered by anyone to keep and bear arms as a civilian. You have a right to use arms as a civilian, because it is voluntary.

Do you have a right to join the military? No, the military can refuse to conscript you if you fail their standards and they can force you to conscript like during world war II. There is no right to join the military and once you are in, there is no right to keep and bear arms--you have to obey your commanding officers order to bear arms and you have to obey their order to surrender your arms.

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Disobey your commander and see if you're punished
on June 14, 2019 at 15:18:36 pm

"People who join the military surrender a number of civil rights. Free Speech notwithstanding, they can be punished for criticizing the Commander In Chief. Free Association notwithstanding, they can be punished for quitting their jobs. Etc. "

Justice Stevens and Joseph Ellis are arguing that the second amendment isn't a civil/civilian right, but only applies in the militia/military. You're admitting that the right to keep and bear arms, and the right to free speech, doesn't apply in the military and therefore it must apply as a civilian, or it doesn't apply anywhere at all.

If you don't have free speech as a civilian but only in the military, but it doesn't apply in the military, then it doesn't apply at all. If you don't have a right to keep and bear arms as a civilian, but only in the military, but then it doesn't apply in the military, then it doesn't apply at all--cause it doesn't apply anywhere or at any time.

You can't say the right to bear arms only applies in the militia/military, and then say that you give it up when you join the military. There's no such thing as a right that applies nowhere and at no time.

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Having Doubts
on June 14, 2019 at 15:28:26 pm

"People who join the military surrender a number of civil rights. "

Yes, that's the whole point--free speech, freedom of association, the right to keep and bear arms, are all CIVIL [i.e., CIVILIAN] rights for civilian purposes. They are not military rights--rights that apply completely and absolutely in the military.

You cannot say the right to keep and bear arms is a right you surrender when you join the military while saying that it only applies in the military. That leaves nowhere for it to apply.

It either applies as a civilian or in the military. You admit you surrender it when you join the military, so the only place left for it to apply is as a civilian. Hence Scalia was right, it's a civilian right.

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Civil right is a CIVILian right
on June 14, 2019 at 17:04:21 pm

Perhaps I misunderstood the original argument. I didn’t find it compelling then—and I think I find it less so now.

Militia Officer 9066 argues that we must conclude that the 2d Amendment applies to private—not merely military—matters because otherwise, people in the military would have the right NOT to bear arms.

The contrary argument is that the 2d Amendment exists to limit the power of the federal government to disarm state governments. According to this argument, the amendment does not address private rights—neither the right to bear arms nor to the right to refrain from doing so.

If you subscribe to this latter theory, the fact that INDIVIDUALS in the military (state or federal) lack the power to refuse to bear arms is irrelevant, 'cuz the 2d Amendment doesn’t apply to individuals.

To make Militia Officer 9066’s argument, you must START with the assumption that the 2d Amendment applies to individuals. But if you must start with that assumption, then you can’t rely on this argument to prove the assumption you’re starting with.

My original point—which is now kinda beside the point—is that you cannot judge anything about the existence or non-existence of civilian civil rights based on the rights exercised by people in the military. The fact that people in the military lack Free Speech rights proves NOTHING about whether civilians have such rights. The fact that people in the military lack Free Association rights proves NOTHING about whether civilians have such rights. The fact that people in the (US) military can be prosecuted without benefit of a grand jury says NOTHING about whether civilians have such rights. The fact that people in the military lack the right to own slaves proves NOTHING about whether civilians have such rights. And the fact that people in the military lack the right to refuse to carry proves NOTHING about whether civilians have such rights.

I’m not trying to argue that civilians DON’T have rights; indeed, I’d concede that they have some—but not all—of the rights listed above. Instead, I’m trying to argue that you need to find some different lens for analyzing which rights civilians do or do not have.

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nobody.really
on June 14, 2019 at 17:27:09 pm

Please see above: I surmise that this argument presumes that the 2d Amendment applies to individuals, and in the absence of that presumption has no force.

Moreover, I wonder about the presumption that every right entails the right to waive said right. Certainly I know of no caselaw regarding the right to refuse to bear arms.

Can a person consent to being a slave? To being subject to cruel and unusual punishment? To being tried on a federal matter before a jury containing people from out-of-state? To being tried twice for the same crime? To surrender the the privileges or immunities of citizenship? I can't think of circumstances under which any court would have ruled on such questions.

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nobody.really
on June 14, 2019 at 21:09:32 pm

The thirteenth amendment does not give you the right not to be a slave, it abolishes slavery. The eighth amendment does not give you the right not to be cruelly punished, it abolishes cruel punishments. The fifth amendment doesn't give you the right not to be double-prosecuted, it abolishes double jeopardy.

Search the 3rd, 5th, 8th, 11th, and 13th amendments far-and-wide and you will never find the word "right" in any of those amendments. They do not make anything voluntary, like the first and second amendment, they outlaw things completely and absolutely.

The 14th amendment doesn't give you the right not to be discriminated against, it prohibits the un-"equal protection of the laws". You can't waive your right not to be discriminated against, because there is no such right. Discrimination is simply outlawed, like slavery, cruel and unusual punishment, and double jeopardy.

The 2nd amendment doesn't abolish possible federal disarmament of the militia, it guarantees the right to keep and bear arms.

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There is no right not to be a slave, slavery is abolished
on June 14, 2019 at 21:24:09 pm

"11. That the power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of time only as such state shall agree."
-The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents

If the second amendment only prohibited the federal government from disarming the militia, why didn't they just say---

"Congress shall not have authority to disarm the militia. The power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states."

Why would use the same "right of the people" language in the first amendment that guarantees individual rights if you were really just prohibiting federal government activity (disarmament)?

Neither the 5th, 8th, or 13th amendment includes the word "right". The founders knew how to omit the word 'right' when they were simply prohibiting something, rather than guaranteeing an individual, civilian right.

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Why wasn't the 2nd amendment written like the 5th or 8th?
on June 14, 2019 at 22:26:20 pm

Of the original twelve amendments proposed, the states ratified ten. If the amendments had no meaning or effect, they could've ratified all of them (or none). The fact that they ratified some of them, suggests they thought they would be enforced by the courts and affect their daily lives.

So we start with the strong assumption that ratified amendments have a meaning that affects your daily life, unless they've expired or have been specifically repealed by a later amendment.

Since there's no right to keep and bear arms in the militia--there's only obeying your commanding officer or being arrested and discharged for insubordination, nor is there a right to use arms for military service, only obeying your commanding officer--for the right to keep and bear arms to have any effect, it must be a civilian right.

Then we check what "right of the people" means in the first and fourth amendment. The first and fourth amendment not only don't contradict this meaning, but in fact reinforce this meaning. The first and fourth amendments only make sense as individual civilian rights. No one would suggest they apply only in the militia, or only in prison, etc.

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Meaning
on June 14, 2019 at 22:57:38 pm

"15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

"16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

-Virginia Ratifying Convention, Proposed Amendments to the Constitution

At what point did "the people have a right" turn from an individual civilian right to a collective in the militia right?

The strong presumption is that "the people have a right" means the same thing in all three amendments--an individual civilian right--unless otherwise noted. Since there's no such things as a right in the militia or military--only orders from one's superiors--that buttresses the presumption that this is a civilian right. Otherwise it wouldn't apply anywhere. If it doesn't apply in the militia and doesn't apply outside the militia, there's no where left for it to apply to.

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Patrick Hendrikson
on June 15, 2019 at 01:50:00 am

"XXV. The property of the soil, in a free government, being one of the essential rights of the collective body of the people, . . ."
-North Carolina DECLARATION OF RIGHTS 1776

The Second Amendment doesn't use the word 'collective', on the contrary it uses "the right of the people", which means individual rights in the first and fourth amendment. That is why we start with the strong presumption that the second amendment is the same kind of individual right that the first and fourth amendment are, unless otherwise stated.

"Art. XVII. The people have a right to keep and to bear arms for the common defence."
-Constitution of Massachusetts 1780

The Second Amendment doesn't use "common defence"; more specifically, congress voted against including it in the second amendment.

"On motion, To amend Article the fifth by inserting these words, “For the common defence,” next to the words “Bear arms”--
It passed in the Negative."
-Proceedings on the amendments proposed by the House in the United States Senate (September 9, 1789)

So we start with the strong presumption that since people have a right of self-defense, the right to use arms is for self-defense, since it is not for common defense--and it is either for one or the other. Using arms for common defense (in the militia or military) is a duty, an order of commanding officer, not a right that is voluntary.

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Burke
on June 15, 2019 at 07:23:43 am

I think this interpretation does better justice to the dissent in Heller's perspective. Of course the problem with this perspective is which of the Bill of Rights are exclusive without being openly stated as such? One of them give rights to states AND individuals generally, but other than the Tenth, all of the other rights are rights of all citizens rather than a select few. Given that, it seems hard to contain the 2nd amdt just to the states without it being made clear that was the point, especially since it's not clear to me that militias then were always organized purely by the state; some were more local associations. I think even a non-origianalist is forced to grapple in this case with the historical context of the word "militia" since the Revolutionary and immediately post-Revolutionary period concept of the term is so radically different than ours (though one MIGHT be able to shoe-horn the Nat'l Guard into it). Regardless, even without that inquiry, on its face, it seems strange to hold that this is not a private right given the other amdts. It would make it inexplicably different than the rest (minus the tenth amdts, which explicitly includes states).

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Jeffrey Bristol
on June 15, 2019 at 10:06:28 am

[O]ther than the Tenth, all of the other rights are rights of all citizens rather than a select few. Given that, it seems hard to contain the 2nd amdt just to the states without it being made clear that was the point, especially since it’s not clear to me that militias then were always organized purely by the state; some were more local associations.

States, local associations, whatever—the point is, the amendment was intended to restrict the power of the federal government to disarm non-federal military units, NOT to address a private right of self-defense, hunting, or whatever.

Moreover, there’s nothing unusual about the Bill of Rights addressing topics other than the rights of private citizens. This is clear when you look at the history of the drafting of the Bill of Rights. On August 24, 1789, the House of Representative approved 17 proposed amendments addressing all kinds of topics: apportionment of congressional districts, congressional pay, separation of powers, etc. This undermines the presumption that the Bill of Rights must address individuals.

(Note also that the House’s August 24, 1789 language included the following: “no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Hard to read that and avoid the conclusion that the language was drafted with military service in mind.)

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nobody.really
on June 15, 2019 at 12:25:12 pm

I think we can make too much of what was said in the debates because while important what matters is what was enacted and as enacted we see articles that are almost wholly focused on individual rights.

As far as the militia service goes, this is why I made the point that it is essential to understand what a militia would have been like in the eighteenth century. While there were sometimes formal militia organizations, often they were simply lists of citizens and were as a result entirely inchoate in nature. Being of a certain age was all that was required of militia service and the independence and informality of the militia was seen as key to checking the armed power of a state, in other words the disaggregated, informal nature of the militia was purposively juxtaposed to the formal, organized model of military service. In the minds of the drafters there is no way that they would have predicated the right to bear arms for militia service as incumbent upon being part of a formal organization, if for no other reason than because the difference between a regular army and a militia was precisely that a militia was NOT formally organized during times of peace. If you consider the structure of the Revolutionary army and the distinction within it between militia and regular troops, you can see this quite clearly, but it was also a model drawn from other European countries like Holland.

In this sense, the right to bear arms cannot have been predicated upon formal military service because the militia was a carefully and purposefully developed alternative to that arrangement.

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Jeffrey Bristol
on June 15, 2019 at 12:25:32 pm

Herewith a comment from a sage of the times: ( from: https://i2i.org/more-news-on-the-constitutions-ratification-the-meaning-of-militia-in-the-second-amendment/

"Advocates of the “individual right” theory countered that during the Founding Era the term “militia” referred to the citizenry generally, or at least to all able-bodied men between certain ages. This position was supported by James Madison’s Federalist No. 46, in which he referred to an American “militia amounting to near half a million of citizens with arms in their hands.” (The number “half a million” approximated the number of able bodied men out of the population of the time.) Alexander Hamilton’s Federalist No. 29 provided some support for the “individual right” interpretation as well.

But still, these writings did not state unequivoca[lly] that all able-bodied males were in the militia; to conclude that, one had to make inferences.

However, the writings of Tench Coxe were more direct. In his third “Pennsylvanian” essay he wrote as follows: (Capitalization and italics are his.)

The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. What clause in the state or federal constitution hath given away that important right . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”"

Recall James Madison's admonition against relying upon "words" which he recognized were ever changeable in meaning. brief surveys of usage of the times leads one to conclude that militia was inclusive of all able bodies males and not much else.

2) To conflate a civilian rights (2nd amendment) with a military duty is not just spurious, it is specious.
Consider first "what the thing is", i.e., military service. It is in many respects the direct opposite of the other in that those behaviors which are promoted / applauded / rewarded in civilian life are diametrically opposed to "good order" and discipline in the military.
What is the *Thing* that we consider?
The military is the ultimate imposition of force with a view toward attaining a certain object.
Is this permissible under civilian modes of operation?
In order to assure that the civilian mode may be rendered secure, it is necessary that one relinquish those behaviors common to civilian life, those liberties, rights and freedoms (within certain proscribed limits) when in service under arms.

To compare relative rights of the latter with the former in order to draw conclusions as to the rights retained by / afforded to the former is sheer folly. They are, and should be as "apart" from each other as are any two other states or conditions one may encounter / envision.
Indeed, we have a separate Code of Military Justice, which under civilian life would be intolerable.

Shall we now derive the proper limits of civilian justice from the restrictive permissions of the Uniform Code of Military Justice?

I think not!

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gabe
on June 15, 2019 at 13:19:01 pm

If the second amendment only prohibited the federal government from disarming the militia, why didn’t they just say—

“Congress shall not have authority to disarm the militia. The power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states.”

If the second amendment only pertains to private rights to bear arms, why didn't Congress omit the reference to militias?

Yup, other amendments use "right of the people" to refer to individual rights--but those amendments also omit references to the militia. If references to militia have no meaning, why not include them in every amendment? Or none?

I'm not persuaded these kinds of arguments contribute much to the conversation.

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nobody.really
on June 15, 2019 at 13:44:25 pm

In England and later Great Britain, the right to bear arms was reserved to gentlemen and the peerage. The right to bear arms is mentioned in the English Bill of Rights of 1689 and reads:

"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"

I always thought that Madison's formulation of the 2nd Amendment extending the right to the people in general, notwithstanding their religion or condition (civil status), and connecting the right to the militia instead of "as allowed by law" reflected Madison's intent to make the right much broader and much more republican than the narrow right granted in the English Bill of Rights. This formulation also reflected the colonial experience of 150 years where there were no significant limitations on peoples' right to bear arms.

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EK
on June 15, 2019 at 13:55:06 pm

I can't believe that anyone mistakes Joseph Ellis for a serious historian. He's always been nothing but an anachronistic Federalist flack who writes the election of 1799 is tomorrow and Adams is his guy.

Further, Ellis can't even be truthful or accurate about his personal history; for years while he was teaching at Mt. Holyoke, he lied about having served in Vietnam.

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EK
on June 15, 2019 at 13:56:17 pm

". . .writes LIKE the election . . ."

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EK
on June 15, 2019 at 14:45:01 pm

"The 2nd amendment doesn’t abolish possible federal disarmament of the militia, it guarantees the right to keep and bear arms."

Yep! which incidentally is a pre-existent, that is, prior to govenrment. right.
Generally, both the amendments and the main body of COTUS is concerned with the objective of prohibiting government abridgement of pre-existing rights.

As to those who would derive a requirement that arms be "borne" only under State auspices, i.e., militia, it strikes me that they fall victim to the same fundamental misreading of our Republic - that it is a "compact between the States( see JC Calhoun and countless others) and not a covenant amongst the people.

One would think that Justice Marshall had put this fallacy to bed in his early decisions in which he countered the State compact theory by simple reference to the first three words of the Preamble.

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gabe
on June 15, 2019 at 14:53:18 pm

extrapolating then, we find that nobody also views the right to bear arms as something derivative of engagement with a State function - the militia.
1) This is a covenant between the People NOT the States (unless, of course, you side with JC Calhoun).
2) Understand the word "militia" as those who employed it understood it. It was not AND is not the equivalent of the modern National Guard.
As the Brits would say, "It is every *manjack* one of you.
Yes, even nobody really would be considered a member of the militia.
3) The right to self defense pre-dates governance. COTUS may be nothing more than a loud reminder to government to not exceed its designated and lawful authority.

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gabe
on June 15, 2019 at 22:52:42 pm

"V. That the right in the people to participate in the Legislature is the best security of liberty, and the foundation of all free government; for this purpose, elections ought to be free and frequent"
-Constitution of Maryland - November 11, 1776

If the democrats believe that the supreme court--through Roe and Obergefell--is the best security of liberty, does that mean elections in Maryland no longer have to be free and frequent? Or does everything that comes before the words "elections ought to be" just superfluous, i.e., have no legal force or effect?

"XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made. "
-Constitution of Maryland - November 11, 1776

If public polls show that people no longer think ex-post-facto laws are "oppressive, unjust, and incompatible with liberty", does this amendment automatically expire? Or does it still need to be formally repealed, because all the words before "no ex post facto law ought to be made" superfluous

"XXXIII. That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice;"

If freedom of religion is because every man has a duty to worship God, does that mean freedom of religion doesn't include atheism? Or by definition, does freedom of religion include the freedom not to be religious and not to worship God, and therefore all that language before "no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession" is superfluous?

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Preambles have no legal force or effect
on June 16, 2019 at 04:17:14 am

Thank you, very useful publication, I will try to follow your publications.

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Nuoma911
on June 16, 2019 at 16:20:43 pm

You need to do more reading.

Begin with Fred Anderson's "A People's Army." It's about the Massachusetts militia from 1750-65 (Pauline Maier made it part of her required reading in her American History course at MIT). It was the model of a "well regulated" militia. The US won the Revolution on the strength of its militias, on the strength of the few generals like Daniel Morgan who knew how to use militia and on French intervention.

In 1636, Massachusetts reorganized the trained bands of the several towns into regiments and the towns were required to provide a stock of arms adequate to equip its active militiamen. In 1639, the Boston Artillery Company (now "The Ancient and Honorable Artillery Company") was formed to train and advise militia officers. During the English Civil Wars of the 1640s, the Artillery Company sent a steady stream of volunteers to the Eastern Association and the New Model Army.

During the Interregnum, Cromwell used volunteers raised from the New England militias to invade Nova Scotia and Jamaica.

The New England militias won King Philip's War (1675-78) which ranged from Portland, ME south and west to the Connecticut River and then east and south to Long Island Sound.

After 1690, summer campaigning and winter patrolling against the French and their Algonquin auxiliaries seems to have been an important source of income for young, healthy New England militiamen. After 1700, the New England militias remained well organized and independent of the royal governor and were in the field almost annually under their own officers and under their own discipline until 1764. Universally, they refused to serve under the direct command of British officers. Their specialties were ranger formations and field works (essentially combat engineers) but in 1745 New England infantry did capture Fortress Louisbourg in Nova Scotia from the French.

In the Fall of 1774, the town militias reorganized into county based committees of public safety and provided a steady stream of conscripted and volunteer replacements and company sized reinforcements as needed to the New England regiments in the Continental Line and to the Northern Department at West Point.

Virginia's militia seems to have been very similar to the New England militias but the other state militias were simply not as well organized.

The chief weakness of the militia system was always the lack of competent field grade officers to command the usually very competent company sized formations the militias produced.

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EK
on June 16, 2019 at 18:00:03 pm

Do not accuse me of ignorance, please, especially when you do not know me. There were many problems beyond simply the quality of the officers, which any casual reading of the history of the Revolutionary War will point to, among other factors of at least equal importance were the short-terms of militia service, confused chains of command (not the same thing as poor officership, though related) and strong local prejudices, as I am sure you are aware. We see many examples of this in Washington's invectives against militamen.

Regardless, as you yourself point out the quality of militias and their training varied. It's convenient to point out the two best disciplined examples, but even going back to earlier examples, Franklin often complains about the ineffectiveness of militias in the French and Indian War and many militia units in those earlier conflicts were reinforced by British Regulars or continental soldiers taken in in a semi-regular basis, though the source of these men was often the militia. Regardless, many colonies, like Ga, both during and after the Revolution had no more militia organization than simple rolls of names. I believe Pa was similarly organized. It is wonderful to cherry-pick examples and accuse those we disagree with of ignorance, but those do not an argument make.

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Jeffrey Bristol
on June 20, 2019 at 03:54:11 am

They did not put Christ in the DOI or constitution, thetefore, u can worship whatever i want. State constitutions mean nothing compared to the national charter. The founding fathers doomed the nation at the start.

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Oft
on November 30, 2019 at 18:26:29 pm

The Constitution and its underlying principles DEFINE the rule of law. As such, “the rule of law” cannot be synonymous with “the will of the” majority."

The Declaration of Independence lays before us the premise and purpose of all governments, past, present, & future. It states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Property. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…(emphasis mine)

It becomes the duty of all who love and respect the Rights of their children to protect the citizen from the unjust operation of government.

When those entrusted in government to secure the rights of the individuals turn that trust into a tool to deny those rights, it is incumbent upon those who understand the obvious limits of government and the necessity of those limits to stand in opposition to that unjust use of authority. Just as those in America’s past, who refused to enforce the Federal Fugitive Slave Act because of its obvious abuse of power and destruction of rights wielded by those legislators who ratified it into law.

Those who have taken an oath to secure the rights of the people, who understand the magnitude of that solemn promise and the unavoidable and tragic consequences of failing to uphold that promise, feel morally compelled to take a stand. How noble an example would American history have if there was just one Sheriff in Montgomery, Alabama who recognized that a law, ratified by legislators, signed by a governor, reflecting the will of the majority, was not a just law after all. What if instead of arresting Mrs. Rosa Parks, that Sheriff refused to enforce a law that deprived an individual of her rights and instead protected those rights, escorting Mrs. Parks, in which ever seat she chose, all the way home?

Those, who are dedicated to their just and lawful duty to secure the rights of the people, understand that at these times the “will of the majority” and the distortion of the rule of law’s definition must be resisted.

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SUZETTE
on November 30, 2019 at 18:44:00 pm

Yes, yes, yes!
Thank you for explaining very eloquently what once was boldly known and how far off the beaten path we continue to roam.

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Suzette

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