Citation

Timmons L. SSRN eLibrary 2020; 2020: e3525805.

Copyright

(Copyright © 2020, Social Science Electronic Publishing)

DOI

10.2139/ssrn.3525805

PMID

unavailable

Abstract

The right to keep and bear arms. The militia. They're both mentioned in the Second Amendment. Yet, the relationship between these two things, and why they are connected in the Second Amendment, are opaque, shrouded in commas, if you ask the Supreme Court's Heller decision. The Constitution was written with great care, by people at least as smart as us, with at least as much awareness of their place in history, as we are aware of ours. It would be reckless, if not insane, to actually base the meaning of the the amendment on the placement of commas. And it is inconceivable that a twenty-seven word amendment would bother with a prefatory clause, constructed as an ablative absolute, when no other amendment had such a clause, and no other article, section, or clause of the Constitution, bothered with such a device. The act of repeatedly forcing the reader to pause, by adding commas, says, "You should really think about what is being said here." And this unstated instruction to the reader, is the simplest explanation, for the existence of those commas.Many make the technological argument. The Framers could not have anticipated the telegraph, iron-clad ships, the Gatling gun, or steamboats, and therefore the Constitution is out of date and cannot apply to us. What we have failed to understand is that technological change was proceeding at an exponential pace in their time, just as it does now. The technological argument asserts that the Framers lacked an awareness of this change, and were moving, like zombies, toward a truly innovative constitutional solution to self-government. The innovative zombie argument is clearly untenable. This paper will make the philosophical argument. The argument asserts that every provision of the Constitution is a result of a deep analysis of the relevant issues on a philosophical level. It asserts that basing every provision of the Constitution on a philosophical analysis of the underlying issues was critical to creating a stable document. The document would change only infrequently, because the fundamental nature of a problem changes only when we find that the original analysis was flawed. There is every reason to believe that the philosophical mind of James Madison was specifically engaged to accomplish this goal. This paper makes the philosophical argument by clarifying the Second Amendment. I have asked, and found answers to, a series of important questions: "If the Second Amendment mentions the militia, and the Constitution mentions the militia, could those two things be related? Does the Second Amendment modify the militia clauses of the Constitution? If so, who wanted those clauses modified? Is there something wrong with the militia clauses of the Constitution?" The answers to these questions are: yes, yes, the Antifederalists, and yes.Of the ten amendments contained in the Bill of Rights, nine address subjects on which the Constitution was silent. The Second Amendment was different. It reached back into the Constitution and changed it. The Antifederalists thought the power of the federal government over the militia was despotic, tyrannical, absolute. They used the Second Amendment to fix that.

Language: en

Keywords

arms; conscription; gun violence; jury; lethality; military demand; militia; militia weapon; posse comitatus; Second Amendment; US Constitution