One superficially read in constitutional history may object: Did not the Founding Fathers speak, again and again, to the meaning of “the right of the people to keep and bear Arms”? Certainly that is the technique often employed in naive studies of the Second Amendment: namely, marshaling statements attributed to James Madison, Thomas Jefferson, George Mason, and even Alexander Hamilton, in order to establish legal principles by reference, deference, and adherence to personalities. Now, these statements may themselves be facts—in the sense that such and so is what some Founder actually said or wrote. But their substance consists, not necessarily of historical or legal truths, but only of the opinions of the men who made them—even if those men were in high public office at the time. Fundamentally, this is why so-called “legislative history” such as records of legislative debates were rightly considered incompetent evidence during the founding era and for many decades thereafter: “Doubtless, the intention of the Congress which framed and of the States which adopted [a constitutional] Amendment must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words.” United States v. Wong Kim Ark, 169 U.S. 649, 698 (1898). (Today, “legislative history” is often employed by lawyers and judges for the purpose of expanding or contracting laws beyond their actual terms—and legislative debates are often intentionally larded with tendentious statements in aid of this subversive procedure, either by legislators who opposed a law and want to see it constricted, or by legislators who supported a broader version of a law than was actually enacted, or both.) In addition, where the Constitution “asserts a certain right, or lays down a certain principle of law * * * , it speaks for the entire people.” Davis v. Burke, 179 U.S. 399, 403 (1900). Therefore, its meaning must be derived from its own words, as construed according to then-contemporary rules of interpretation upon which “the entire people” —that is, average Americans—would have relied, not just from the opinions of a handful of even the most illustrious statesmen of that time. (footnote 1)
1.) See generally “Is the D.C. Gun Case Off Target?”
f the average legally literate American of the Founding era had enjoyed access to James Madison’s now famous notes of the debates (footnote 1) or to such coverage as the press had offered, he nonetheless would not have considered them admissible let alone dispositive evidence, because “legislative history” consisting even of verbatim debates, recorded by an official reporter and contemporaneously transcribed, had no legal standing for the purpose of statutory interpretation in that era. As the general rule came to be stated thereafter, “[i]nquiries into [legislators’] motives * * * are a hazardous matter”, (footnote 2) as is “bas[ing] speculations about the purposes or construction of a statute upon the vicissitudes of its passage”, (footnote 3) because “it is impossible to determine with certainty what construction” the legislature as a whole “put upon an act * * * by resorting to the speeches of individual members”, (footnote 4) the arguments of individual legislators being “so often influenced by personal or political considerations, or by the assumed necessities of the situation”. (footnote 5) Difficult to interpret in any event, and sometimes colored by ignorance or questionable motives, legislative debates and like materials are inadmissible as evidence of what statutes mean, (footnote 6) except in the most extraordinary situations plainly inapplicable to the Constitution, such as where statutory provisions, “literally applied, offend the moral sense, involve injustice, oppression or absurdity, * * * or lead to an unreasonable result plainly at variance with the policy of the statute as a whole”. (footnote 7) And if WE THE PEOPLE could and would not have relied even on formal “legislative history”, they certainly could and would not have treated as controlling the mere opinions that various prominent Americans may have stated informally. (footnote 8)
1.) See The Records of the Federal Convention of 1787, Volume 1, at xi-xxii.
2.) United States v. O’Brien, 391 U.S. 367, 383-384 (1968). Accord, Palmer v. Thompson, 403 U.S. 217, 224 (1971).
3.) Pine Hill Coal Company v. United States, 259 U.S. 191, 196 (1922).
4.) United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318 (1897).
5.) Downes v. Bidwell, 182 U.S. 244, 254 (1901).
6.) E.g., Aldridge v. Williams, 44 U.S. (3 Howard) 9, 24 (1845); United States v. Union Pacific Railroad Company, 91 U.S. 72, 79 (1875); United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318-319 (1897); United States v. Wong Kim Ark, 169 U.S. 649, 699 (1898).
7.) See, e.g., George Van Camp & Sons Company v. American Can Company, 278 U.S. 245, 253-254 (1929).
8.) See The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 43-44.
So, what can be identified as the objective basis for the Founders’ subjective opinions concerning “the right of the people to keep and bear Arms”? That basis was their own personal experience and knowledge of pre-constitutional history. (They were not talking about theory at all.) And in every case, both their experience and their knowledge were largely the products of laws—specifically, the pre-constitutional Colonial and State Militia statutes. Many, if not most or even all, of these men had actually served in the Militia in their Colonies and States, or at least were subject to and aware of the Militia laws prescribing the duties of service.
Therefore, the best evidence is not the Founders’ personal opinions as to what “the right of the people to keep and bear Arms” entailed throughout the 1600s and 1700s, but instead the actual pre-constitutional laws that specified what was supposed to be done, and what were the standards that governed when, how, and by whom it should be done, with respect to the actual “keep[ing] and bear[ing of] Arms” by “the people”. The Colonies and independent States enacted dozens and dozens of such laws from the early 1600s to the late 1700s. All were substantively the same (outside of some special provisions that applied only to “patrols” in the Slave States). These statutes tell us precisely what “well regulated Militia” were—indeed, many describe themselves in so many words as “regulating” the Militia of this or that Colony or State; and that their provisions were enacted and reenacted throughout that period, without substantive change, tells us that these statutes were understood to have “well regulated” the Militia. The statutes also tell us that “the right of the people to keep and bear Arms”—not simply “a” right, but “the” right—was actually in its operation a complex duty, and as the consequence of being a duty was also a right to be interposed in opposition to any interference with fulfillment of that duty. These laws are straightforward, impersonal, objective, historically verifiable in every detail, and utterly consistent in their various iterations over an extensive period of time. They validate the Founders’ opinions, not the other way around. They, not the Founders’ opinions or lawyers’ arguments based on such opinions, tell us what the Constitution means when it speaks of “Militia”, “the people”, and “Arms”. In a judicial world ruled by ratiocination and fair play, that should be enough. (footnote 1)
1.) See generally “Is the D.C. Gun Case Off Target?”