Constitutionality and James Madison

I keep a copy of the Constitution on my body virtually all of the time, except when sleeping perhaps.  The reason for this is because I spend a great deal of time with friends who are Republicans, and they are often wrong in their interpretation of a section of the Constitution I believe.  I read the actual document to them.  For instance, they all think the Second Amendment protects the ownership of firearms.  I generally point out that the Constitution protects the rights of the average man to own a gun.  But, it does not protect a man’s right to own a nuclear weapon.  There are definitely restrictions on certain automatic weapons, nuclear weapons, and chemical weapons.  I live in the state with the hardest law governing gun ownership.  It has not been overturned, despite its lack of allegiance to Article Fifteen of the Massachusetts Constitution, which also states that the right to keep and bear arms is sacrosanct.  Yet, despite that, Massachusetts residents have not appealed to the state courts to use Amendment Fifteen and free the right to bear arms.  It is not only protected by the state, it is protected by the U.S. Constitution.  And yet, we buy off on certain corrolaries to the law.

Here is what the Constitution says on the Second Amendment.  It says that the right to keep and bear arms shall not be infringed and that the gun can be used to ensure the formation of a local military regiment.  The gun serves a purpose, in the Constitution.  It is there to guarantee that the average man can protect himself in an organized way, as in the formation of a militia.  Hence, each city and town, or even persons interested in the right to keep and bear arms (that phrase is catchy, isn’t it?) can form a regiment to challenge the laws of the Federal government.  Shay’s Rebellion struck down much of that interpretation and people left the rebellion defeated.

We cannot possibly guarantee that every miscreant on American ground has the right to form a militia.  But that is exactly what is in the Second Amendment.  Specifically the amendment says that “A well regulated Militia, being necessary to the security o a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The Fathers wanted to solidify the rights of the people to revolt against their government when the government became too overbearing.  The rights correlate with the right to protect your home from the government when it was too strong, or, as I said, too overbearing.

We often equate our right to keep and bear arms with the use of certain arms that are not legal in today’s society.  In the early 1970’s, a college student passed in as his dissertation, how he would use common materials to build a working atomic bomb.  He was visited by the FBI, the Secret Service, and persons from the military.  He had a working recipe for splitting an atom with sufficient force that it would do what the Hiroshima  bomb did to Hiroshima.  The government did not arrest him, if memory serves me right, but did make sure that he would do nothing further to exacerbate a dangerous situation.  He agreed not to share his plan, and not to build a bomb.  But Constitutionally he was within his rights to “keep and bear arms.”   He did not form a militia, he seemed like a normal student who guessed accurately how to make the most feared weapon ever devised by man.  And, I would argue that he was within his constitutional rights to do so.  There is no limitation on procurement or technology in the Second Amendment.

Enough about the Second Amendment.  It is well-reasoned that guns are legal.  That does not cover the Constitution, however.  There are now twenty-seven Amendments to the Constitution.  Some freed slaves, while others mitigated by an attempt to soften some of the laws in the Constitution, did other things that righted some of the oversights in the document.  Immigration policy was part of that movement, I believe.

Women were given the right to vote.  A right to vote was guaranteed to all citizens except those who were felons.  The Constitution was used to fix small but basic impediments to daily life.  The poll tax was deemed unconstitutional, I think.  Many items that we now take for granted were first espoused in the Constitutional Amendments.  It always puzzled me that the Equal Rights Amendment was given a time-line for passage.  Most amendments were not so laden.

Now, I am going to take a minute to make a twist in my thought processes.  So often, I have heard people lament that we have no record of what the original framers of the Constitution wanted to include, or omit, from the document.  I have been reading a book on the viability of the Constitutional Convention.  I have concluded that we know exactly what the forefathers wanted and we have it to the finest point in James Madison’s Minutes of the Constitutional Convention.  James Madison spent every day of the convention taking down elaborate notes which included precise quotes from the people who were writing the Constitution.  The only person he failed to quote was George Washington.  How could he make such a slip?  Washington did not speak to the Convention.  Other than that, Madison has everyone’s nuances.

I have a tome (book) called “Messages and Papers of the Presidents,” and in it Madison was one of the best writers of his time.   When describing the taking of American sailors off of their ships illegally, Madison says, “In this new posture of our relationships with those powers, the consideration of Congress will be properly turned to a removal of doubts which may occur in the exposition and of difficulties in the execution of the act above cited.” (Page 469)

I use that passage to prove that Madison could write, and do it well.  If we take time to study what Madison wrote about his fellow delegates, I believe we can ascertain what the forefathers were contemplating.  They had minor matters that took front stage, including the use of different money in each individual state.  There was discussion of that, although I do not believe it ever became an amendment.  There was a great deal of discussion of state’s rights, taxation, and slavery.  However, the slavery question was not as it would seem.  Massachusetts did not reject slavery until 1802.  It was a hot topic.

So let’s tell our elected representatives to take a few minutes to see what Madison wrote about the formation of the Constitution.  The answers are right there, staring back at us.  We can finally do what has not happened in America, we can interpret the Constituion based on its history.  That would be something.

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