Tuesday, March 25, 2008

Uh... yes, Chuck, twenty-seven words COULD be clearer...

If you want to know the state of right-wing thought, the website to visit is townhall.com. On their pages are gathered columns written by conservatives. Lots of them. I prefer precise numbers to just writing generalities, so I logged onto their main columnist page to count the pundits. I stopped my tally at seventy-five, so I'll stick with "lots of them."

That's a lot more than I can read. Plus, in any given week half of them will write about the same thing--and how many columns on Barack Obama's preacher did we need last week? So usually I just read Ann Coulter and Brent Bozell. They're more interesting than most of the other columnists, and I figure it's good to read at least one right-winger who is REALLY far right as long as she's also funny (Coulter) and one who is more of a mainstream voice. (To be fair, Bozell at times can be a little bit out there too. He once wrote a column decrying the flatulence humor on the cartoon "The Grim Adventures of Billy and Mandy." Bozell and I are of the same generation; my attitude is if he and I could grow up to lead normal lives watching Bugs Bunny drop an anvil on Yosemite Sam, surely today's kids aren't at risk simply because it's a rare moment on Nickelodeon when someone isn't farting.)

But when I checked out townhall.com today, I got a bit of a surprise: Chuck Norris is now a columnist there. Of course, I had to click on his name to see if his voice was adding anything new or interesting to the discussion.

My conclusion? Basically, Norris is adding something bizarre to the discussion. In this column, he ruminates on several subjects, notably the Second Amendment case of D.C. v. Heller which should be ruled on this spring:


Here's the bizarre part in my view:

"First, there was the Supreme Court's wrangling with the Second Amendment. Should it allow private citizens or only public servants ('state militias') 'to keep and bear Arms'?
Is someone joking? Could 27 words be any clearer?! 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'"

So what Mr. Norris is asserting here is that the Second Amendment's meaning is crystal clear.

Now let's see what scholars who have written books and law review articles on the Constituion have said:

"The very wording of the Second Amendment provides fuel for the controversy." -- John R. Vile, A Companion to the United States Constitution and its Amendments, 2nd ed., 1997, p. 143.

"This simple sentence (the Second Amendment) has perplexed most modern readers. How do the two main clauses with different subject-nouns fit together?" -- Akhil Reed Amar, America's Constitution: A Biography, 2005, p. 322.

"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions." -- Sanford Levinson, The Embarrassing Second Amendment, 99 The Yale Law Journal 637, pp. 643-644.

When even the annotated Constitution maintained by the Library of Congress declares that "there is no definitive resolution... of just what right the Second Amendment protects" I think it's rather apparent Norris is on shaky ground with his premise:


So as you can see, the people who consider Constitutional law for a living DO think twenty-seven words could be clearer.

One other observation on Norris's essay. He quotes a line from Thomas Jefferson's letter to his nephew: "Let your gun therefore be your constant companion of your walks." Do you wonder why the word "therefore" is in that sentence? Obviously, it refers to something Jefferson must have written immediately prior to this.

Here is Jefferson's advice, with the sentence before Norris's citation added:

"Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks."

According to my source, that's from Volume 8 of The Papers of Thomas Jefferson, 1953, p. 407. But what is so great about the Internet is that you don't have to run to an academic library and pull out some massive, dusty book; you can just read the letter from Yale's Avalon Project site:


As the authors of a book discussing the Second Amendment note, "Jefferson's homily... reveals as much about the eighteenth-century English-speaking aristocracy's distaste for rowdy and plebeian soccer as it does about his constitutionalism," Uviller and Merkel, The Militia and the Right to Arms, 2002, p. 24.

My favorite part of the letter, actually, has nothing at all to do with guns or playing ball. It's this little piece of advice on the young man's education:

Then take up antient history in the detail, reading the following books, in the following order: Herodotus, Thucydides, Xenophontis Hellenica, Xenophontis Anabasis, Arrian, Quintus Curtius, Diodorus Siculus, Justin. This shall form the first stage of your historical reading..."

Okay, Jefferson's letter to his nephew does contain some sound advice that resonates to this day; I love his remark, "Give up money, give up fame, give up science, give the earth itself and all it contains, rather than do an immoral act." But times have changed in over two centuries, and I think it's a bit of a stretch to cite this letter for the principle that it's a good idea to make your gun your "constant companion" (does Norris himself even do that?) when this advice is paired with the notion that one shouldn't play ball games. If Norris has a nephew, I don't expect he will tell him not to participate in baseball, football, or basketball because they are "too violent for the body." And for sure I bet he doesn't tell him he must read Xenophontis Hellenica AND Xenophontis Anabasis.

Although if he did, he might conclude their works were clearer than the Second Amendment.


David E. Young said...

Perhaps Chuck Norris has actually studied the historical information that is available about the development of the Second Amendment. For those who think that not much is known, try reading this History News Network article, which is severely critical of the historical material presented to the Supreme Court in a pro-DC handgun ban amicus filed by fifteen professional academic historians and legal scholars:

The 27 words are only incomprehensible for those who insist on keeping their heads stuck in the sand. In The Founders' View of the Right to Bear Arms, which was just published in December, the two clauses of the Second Amendment are traced back to their original AMERICAN authors and uses. (I emphasize American to indicate that the constant mention of Scotland and the English Bill of Rights by gun control advocates are diversionary and unhelpful for understanding American bills of rights language) The original two clause version of the Second Amendment had two equal declaratory clauses. These were taken from Mason Triads that were present in EVERY one of the state bill of rights then extant (there were 8 total). Half of those had well regulated militia language as the lead Mason Triad clause, the other half had the people's right to bear arms language as the leading clause of the Triad. Mason Triads basically asserted the supremacy of the civil over the military, or civil control of the military.

Thus, the two clauses of the Second Amendment as proposed by George Mason in his 1788 Bill of Rights are equal and duplicatory. I trace down why this is so, not only for the Second Amendment original, but also for freedom of the press as proposed in Mason's model Bill of Rights. Mason's Bill of Rights proposal is what Madison promised to support in order to obtain the ratification vote in Virginia's Convention. It was Madison who introduced the dependent nature of what is now the first clause of the Second Amendment and this was done because he made the operative clause restrictive in nature rather than merely declaratory like Mason's original. Also, note that Mason's Bill of Rights was the model for all four of the last ratifying conventions, every one of which defined the militia as the body of the people.

What both forms of the state bills of rights protected, obviously against state government violation, was an armed civilian population. They simply did it in different language. They were all understood as protecting a fundamental right. Mason, who first used well regulated militia language in an American Bill of Rights, indicated that his original 1776 Virginia Bill of Rights well regulated militia provision was intended as a limit on the state legislature. Mason also indicated that none of the provisions in the 1788 model Bill of Rights he wrote, which included the Second Amendment two-clause original predecessor, were amendments to the militia powers of the Constitution .

"Well regulated" in conjunction with militia meant an effective militia, and that is all it meant in or out of a bill of rights context. It did not mean controlled by the government. The militia were understood as all the able bodied men. One last detail; Mason used well regulated militia to describe a defensive association of all the able bodied men self-emboided for defense against government officials and forces over a year prior to writing the 1776 Virginia Bill of Rights. Understanding that the first clause of the Second Amendment refers to an effective militia consisting of all the able bodied men makes the Second Amendment much more clear.

Anyone seriously interested in the details of the Second Amendment's development and meaning would benefit from reading The Founders' View of the Right to Bear Arms. It was cited to the Supreme Court a total of seventeen times in these briefs supporting Heller in the DC handgun ban case: Alan Gura's Respondent's brief, the Pennsylvania Senate President Pro-Tem's amicus, the Academics for the Second Amendment's amicus, and Gun Owners of America's amicus.

A lot is known about the historical details of the Second Amendment's development, but very few individuals are aware of the overwhelming number of clear details indicating exactly what it meant to the Founders who developed it. For information on The Founders' View of the Right to Bear Arms, go to: http://www.secondamendmentinfo.com

Tom said...


Nicely put.

I am in the process of reading your book mentioned above as well as the previous one, "The Origins of the Second Amanedment: ..."

Although I've not finished reading them, I've read enough to realize how far off track most people are when commenting on the Constitution and the Bill of Rights.

Thanks for doing such a good job on both books.