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ANSWERING CRITICISM OF HELLER |
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Written by Don B. Kates
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Tuesday, 10 March 2009 15:24 |
ANSWERING STEVENS AND POSNER
The Stevens dissent in Heller, now followed very briefly by Judge Posner in a NEW REPUBLIC article, is (whether unwittingly or just cynically) an exercise in historical irrelevance compounded by historical misunderstanding.
The first problem, from which most of the others flow, is that Stevens and Posner affect to take seriously what Leonard Levy, the historian of the Constitution dismissed as a mere "smokescreen": the false impression that the Anti-Federalists really cared about a Bill of Rights - and were influential in having one enacted. The actual history on this point is as follows:
Before the Constitutional Convention the Anti-Federalists were not an organized group but just a disorganized collection of isolated individuals like Patrick Henry and Richard Henry Lee. After the Constitutional Convention these individuals realized that they had committed a terrible error. They had not attended, since they expected the Constitutional Convention to just emit hot air and abort as the previous Annapolis Convention had. They never anticipated that it was going to actually come up with anything substantive, much less a comprehensive new scheme of government.
The result of their non-attendance was that the membership of the Constitutional Convention did not represent the full spectrum of American opinion. Rather, the Constitutional Convention was disproportionately packed with moderate to radical advocates of a greatly strengthened national government. Of the radical advocates James Madison was one of the most extreme. His pet proposals included a federal veto power over all state legislation and a Congress whose membership was exclusively based on population with no concession to the states as units of government. So wedded was he to vastly stronger federal power that he judged the Constitutional Convention a failure because it rejected his pet proposals, and provided instead for a Senate based on representation of the states.
Though Madison's pet proposals failed, the skewed composition of the Constitutional Convention resulted in a proposed Constitution whose allocation of vastly stronger powers to a federal government horrified the non-attenders. They responded by opposing ratification - which is why they are called Anti-federalists.
As a "smokescreen" their opposition highlighted not only what they opposed in the Constitution but also what it did not have -- a Bill of Rights. That was not something most of them cared about: the point was either to defeat ratification or to put it on hold and have a new Constitutional Convention which would produce a document more conformable to their wishes.
The Anti-Federalists were a minority, certainly in political offices and probably in the nation as a whole. Ironically, popular sentiment reversed the importance of their arguments against ratification. On the one hand, there appears to have been a deeply felt popular concern for a Bill of Rights, something that had featured in many of the constitutions adopted by the states which came into being during and after the Revolution. On the other hand, insofar as popular sentiment can be judged from legislative action, the Anti-Federalists' objections to specific features of the Constitution did not prove persuasive.
Q. But how do we know the Anti-federalist demands for a Bill of Rights were a "smokescreen" about which they didn't care?
A. Simple: because of their indifference to the issue after the Constitution was ratified over their objections. At that point a Bill of Rights no longer served the Anti-Federalist goal of defeating ratification or having a new convention - so they had no interest in it.
Consider what happened when Madison introduced his Bill of Rights proposal in the First Congress as described by the great modern historian of the Constitution Leonard Levy:
In the first Congress Representative Madison sought to fulfill has pledge [to the Virginia convention.] His accomplishment in the face of opposition and apathy entitles him to be remembered as "father of the Bill of Rights" even more than as "father of the Constitution."
Many federalists thought that the House had more important tasks, like the passage of tonnage duties.
[The First Congress's Anti-Federalists showed equally little interest. Earlier they had only carped about ] the lack of a bill of rights in the Constitution, [because they] hoped for either a second [constitutional] convention or amendments that would cripple the substantive powers of the government. [Once the Constitution had been ratified,] the Anti-Federalists sought to scuttle Madison's ... [bill of rights]. They began by stalling, then tried to annex amendments aggrandizing state powers, and finally deprecated the importance of the very protections of individual liberty that they had previously demanded. ***
Supporters of Madison informed him that Anti-Federalists did not really want a bill of rights... [His] proposals went to a select committee [whose Federalist chairman] thought the House "had more important business."***
But for Madison's persistence the amendments would have died in Congress. Our precious Bill of Rights was in the main the result of the political necessity for certain reluctant Federalists to make their own a cause what had been originated, in vain, by the Anti-Federalists to vote down the Constitution. The party that had at first opposed a Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, while the party that had first professed to want it discovered too late that it was not only embarrassing but politically disastrous for ulterior purposes.
Thus Stevens and Posner completely misplace reliance on what the Anti-Federalists' said prior to the ratification the Constitution, and on their purported advocacy of a bill of rights. The Anti-federalists' purported Bill of Rights concerns were a sham addition to their very real objections to things that were in the Constitution. And all this faded into the background once the Constitution had been ratified, thereby rendering it beyond easy modification.
The essential fact is that the concerns that motivated Madison's Bill of Rights were utterly irrelevant to the concerns that had earlier motivated the Anti-federalists in calling for one. Insofar as Madison was motivated by anything beyond fulfilling his promise made to the Virginia convention it was Jefferson's argument, "The few cases wherein these things may do evil, cannot be weighed against the multitude where the want of them will do evil."
It is crucial to recognize that Madison foreclosed response to the real Anti-Federalist concerns when in the Virginia Convention he committed the Federalists to producing a Bill of Rights to be added once the Constitution was ratified. Implicit in that commitment was non-responsiveness to all the Anti-Federalists really cared about. If James Madison, the Federalist "author of the Constitution," were to draft a Bill of Rights, the Anti-Federalists could be sure it would not subvert or undercut any of the federal powers in the original Constitution to which they objected but which Madison himself strongly supported. No bill of rights Madison was to author could be expected to compromise federal power vis-a-vis the states in any respect.
Q. How can we be really certain that the Bill of Rights did not at least reflect some of the Anti-Federalist objections?
A. Simple. That is what Madison said in introducing his proposal in Congress! In explaining it Madison flatly denied that it would restore any "powers of the State Governments;" instead characterizing it as seeking to satisfy "the great mass of the people who opposed" the Constitution only because it lacked a bill of rights.
Not coincidentally, this corresponded to the view Madison's mentor Thomas Jefferson had expressed to him, and on which he expressed agreement: that the Constitution's allocations of power to the federal government rather than the states were not objectionable but that the document would benefit from the addition of a charter of personal rights. Concomitantly, Madison stressed that his proposed Bill of Rights would not detract one whit from the powers the Constitution had given the federal government. It would just affirmatively prohibit that government from taking actions Madison had repeatedly denied the federal government had any power to take under the original Constitution without any Bill of Rights.
Madison's Bill of Rights had virtually nothing to do with prior controversies about provisions of the original Constitution. On the contrary, his Bill of Rights was an unneeded (in his own view) invocation of eighteenth century American platitudes. It was a mom-and-apple-pie" statement of rights in which virtually all contemporary Americans believed. The reason there was so little concern with his Bill of Rights by either party in the First Congress is that these were rights which neither Madison nor anyone else in Congress expected the federal government would ever violate.
Certainly the Anti-federalists were not laboring under the delusions that Justice Stevens and Judge Posner base on the Second Amendment's militia clause. The Anti-federalists were utterly unimpressed by that clause. Neither the Anti-federalists nor anyone else objected to the Amendment's "right to arms" clause for that was a right everyone endorsed. But the Anti-Federalists bitterly objected that the preface was precatory; it did nothing to vitiate the military and militia provisions of the original Constitution that the arch-Federalist Madison approved but that the Anti-Federalists opposed. Likewise when the proposed Bill of Rights was reviewed by the state legislatures there was no criticism of the right to arms clause. Insofar as there was criticism of the Second Amendment it was directed at the militia clause. That was assailed for not actually doing anything.
Madison's proposals did goad the Anti-federalists in the First Congress into proposing their own separate amendments to modify the Constitution by guaranteeing state power vis-a-vis the militia. But as the Anti-Federalists were only a minority in the First Congress, their proposed constitutional amendments were rejected even as the Second Amendment with its universally endorsed guarantee of an individual right to arms was enacted.
CONCLUSION
What the Second Amendment guarantees is a right of responsible law abiding adults to possess arms for personal self-defense. This is pursuant to the beliefs of all the Founding Fathers that self-defense is the cardinal "human right" (as James Monroe put it) and that it includes the right to arms for personal defense which is indispensable to the right of self-defense. (It should be noted that the Founders conceived of self-defense as including defense not only against apolitical criminals but against genocide and other political crimes.)
The fact that the four dissenting justices and Judge Posner detest guns is not supposed to be of constitutional significance.
What is of at least some such significance is that America's founding generation were such ardent gun lovers as to put Charlton Heston to shame. "One loves to possess arms" Thomas Jefferson wrote in a June 19, 1796 letter to George Washington. Washington himself owned 50 or more guns. "A talented inventor and gunsmith, Jefferson maintained a substantial armory of pistols and long guns at Monticello and introduced the concept of parts interchangeability into American firearms manufacture." James Madison, though admitting that he was "far from being among the best" shot among his contemporaries, boasted that his skill sufficed to generally hit a target "the bigness of a man's face at the distance of 100 Yards."
In view of these facts, and the Amendment's phrasing (the right of the people to keep and bear arms), the arguments of Stevens and Posner are pathetically inadequate. It simply does not suffice to show that other 18th Century Americans had other concerns which the Amendment might also be implementing - even if it could be shown that James Madison shared those other concerns. What must be shown to refute the obvious meaning of "the right of the people ... shall not be infringed" is some proofs that preserving a right of private gun ownership was not one of the Amendment's purposes. What does suffice in this respect is the point Bill Van Alstyne has quoted from Steve Halbrook:
"In recent years it has been suggested that the Second Amendment protects the 'collective right' of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."
Actually that isn't even strong enough. The simple fact is that the states' right and collective right theories are inventions of the 20th Century gun debate with no provenance in 18th or even 19th Century discussions of the Second Amendment. Every single 18th and 19th Century discussion construes it as an individual right - with no consciousness that it could be anything else.
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