It might seem frivolous and absurd that a TV actor and a TV producer would have produced a work of Constitutional scholarship, A) at all, and B) worth paying attention to. And maybe it is frivolous and absurd, but look around, friends, at this frivolous and absurd world.
Ed Asner—who played Lou Grant on The Mary Tyler Moore Show and the spin-off Lou Grant, and who was also the voice of the old man in Up—is part of the grand old (disappearing) American tradition of leftist Jewish activists in the arts. He vocally opposed US military involvement in Central America during the Reagan administration (the very involvement that begat Iran-Contra), twice served as the president of his union, the Screen Actors Guild, and speaks up for animal rights and environmental causes.
Now, along with Ed. Weinberger, former MTM writer and writer/producer/creator of a million TV shows (incl. Taxi and, er, The Cosby Show) he has written The Grouchy Historian: An Old-Time Lefty Defends Our Constitution Against Right-Wing Hypocrites and Nutjobs, a book that speaks up for the old sense of liberalism, in which a big, activist government might act as a bulwark against corporate malfeasance, fascist subterfuge, and what was that other thing? Oh, yeah: American citizens literally dying in the streets from untreated health issues, poverty, hunger, and ignorance.
Anyway, an interesting bit of Constitutional analysis from the book was excerpted in Salon yesterday, concerning the Second Amendment.
As you will no doubt recall, the late, lamentable Supreme Court Justice (and world-beating hypocritical gasbag) Antonin Scalia ruled in 2008 that the Second Amendment definitely, definitely vouchsafes the right of all Americans to own as many guns as it is possible to ever own. Asner and Weinberger disagree, both in in spirit, and in letter, not only citing the confusing, ambiguously phrased language that exists in the final version of the Bill of Rights, but also James Madison's first draft, the intention and meaning of which is far easier to interpret, as well as the original Articles of Confederation:
The question we now ask is why did Scalia come up with this odd “grammatical” theory nobody's ever heard of, then or since, while abandoning his much-beloved Originalism — his precious methodology for interpreting the Constitution based on the Framers’ thinking at the time?
Probably because Scalia didn’t want to admit what James Madison — the author of the Amendment — had in mind.
Here is Madison’s first draft of the Second Amendment:
“The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Madison’s intent could not be more obvious: his Second Amendment refers only to state militias. If not, why include that exemption for what we now call “conscientious objectors?”
When Madison’s amendment was rewritten by a joint committee from the House and Senate in 1791, the “religious” exemption was lopped off as too cumbersome in language and too complex to enforce. Thus, the Amendment as it now stands.
But Madison’s original intent remains and is there hiding in plain sight for any Supreme Court Justice who takes the pains to look for it. The gun crowd and their apparatchiks ignore, as well, the very reason the Second Amendment got into the Constitution in the first place: to calm the anti-Federalists’ fears of the establishment of a standing army. The Second Amendment is, in fact, Madison’s (and the Federalists’) response to those who felt threatened that the strong central government, as proposed in the new Constitution, might disarm the state militias. And to miss that connection is to . . . well, miss everything.
As written, the Second Amendment follows closely in meaning and in language previous state and national Constitutions – all of which explicitly refer to militias and not individuals.
The Articles of Confederation — the U.S. plan that preceded the ratification of the Constitution — put it this way:
“... every State shall always keep up a well-regulated and disciplined Militia, sufficiently armed and accoutered, and shall provide and consistently have ready for use in Public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”
This is a persuasive reading, not least because it clarifies the deeply contentious usage of "militia." Pro-gun people like to believe the Framers (we can talk about "Framers" some other time) were encouraging citizens to prepare to defend themselves against the forces of a corrupt American government/army. That subject would be addressed elsewhere (in the very next Amendment, for a start).
More to the point, Asner and Weinberger argue that "militia" refers to an organized state militia—perhaps as a balance to the National Guard, an American militia that predates the U.S. Constitution by 150 years, or the ever-anxious notion of a "standing army"—but certainly not to the individual citizen who may or may not choose to try and "regulate" such a militia.
This argument is satisfying because it derives not from ideology or from some powdered wigged performance of national identity, but from grammar, a system that exists solely to convey meaning in as elegant and efficient a way as possible. (Speaking of dying traditions.)
It not only refutes the Scalia/NRA interpretation (which should be instantly suspect because of the profit motive that underlies it), but reverses it altogether, arguing that not only is the Second Amendment not pro-gun, it is, in fact, pro-gun control.
Their Salon piece continues:
In fact, the Constitution was written, a new nation conceived and a more perfect union formed because the Founders were afraid of guns — and the wrong hands they might fall into. Not just slaves. Not just Native Americans. But poor white men. Hell, the Framers didn’t want everyone to have a vote, let alone a gun.
What we’re saying is: this country was founded on gun control. Here’s what we mean: In 1786, a man in rural Massachusetts named Daniel Shays led a protest of 4,000 outraged citizens — mostly farmers and ex-Revolutionary War veterans — against high taxes, foreclosures and bankruptcy proceedings. Unarmed, they were marching toward the armory in Springfield — to get guns — when the state militia subdued the rebellion. This seminal event in American history scared the livin’ bejesus out of the Founders. To them, the rebellion proved the failure of the Articles of Confederation and the urgent need for a new and strong central government. It was that dread over Shays’ Rebellion and the anarchy it represented that kept the Framers glued to their Windsor chairs during that hot Philadelphia summer of 1787.