Keyes - Constitutionally correct, politically maladroit

August 26, 2004

I see that Alan Keyes has recently opined that the Second Amendment should guarantee all citizens the right to own militarily useful weapons - he used machine guns as his example. He qualified this by insisting on some form of licensing, but the gist of his argument is a logical extension of one originalist reading of the 2nd Amendment.

Guess what, I agree with him on that original intent.

The founders bought into the myth of a people in arms as the best defence against tyranny, something they had picked up from Trenchard and Gordon and from the Exclusion Crisis and Glorious Revolution in England. The militia fought at Lexington and Concord; the militia besieged Boston; the militia fought a couple of crucial engagements in the Carolinas; clearly the people in arms are a necessary balance of power.

It is worth noting that the 2nd amendment is just that, an amendment, part of the slate of changes in the Constution forced by anti-Federalists who were unable to block ratification but who tried to cripple the new frame of government by improving it. The Bill of Rights was a statement by the people that the Federal government had gone too far, and it built on the existing notion of states as a counterweight to the federal government by emphasizing the role of the militia as a counterweight to the states and as a counterweight to the federal armed forces. Heck, in 1800 it is likely that if the election had gone the other way Virginia would have mobilized its militia against the Federalists.

However, it is also worth noting that we do not live in the world that the founders made. Even during the Revolution itself, Washington, Greene and the other American generals - British as well, militia fought on both sides - concluded that the militia was not a reliable military force. Some militia units were solid, but any large task left to them would be left undone. It was the militia who let the British onto Long Island. More, their lack standards of training and drill meant that they were less effective in a fixed battle, more likely to flee. Washington has a number of very cranky letters, see for example GW to John Jay after the Battle of the Brandywine, where he claims that his regulars would have beaten the British except that the militia turned and fled.

Militia performance went down hill consistently from the 1630s onward. Militia trounced the Narraganset indians in the seventeenth century, got trounced in Ohio in the 1790s. Militia was most effective as political police during the American Revolution. During the War of 1812 they were even less useful: some militia fled outside of Washington DC, breaking the lines and leading to defeat and the burning of the capital; the New York militia refused to cross the border into Canada and watched the regulars march in and lose a battle a couple of miles away; only Andrew Jackson got the militia to fight, and that because he had them under his arbitrary discipline for over a year and they were far far more terrified of him than they were of the soldiers who had just beaten Napoleon.

By the 1840s, the militia was useless. Instead of mandated service, people organized voluntary military groups, especially in the South, and the same people who would have provided the core of the citizen militia now belonged to volunteer companies. These volunteer companies did train, if only because it let them wear their fancy uniforms, and they did turn out and serve first in the Mexican War and then in the Civil War.

These volunteers were brave, sometimes vicious, but ragged. The militia itself remained a sort of home guard, militarily useless but politically influential. And, of course, the Civil War was a bloody exercise in rebellion against the federal government, and in the postwar years anyone who argued that the states needed to defend themselves would have been accused of trying to fight a second round.

This was the situation that led Congress and the states to disband the volunteers and then later transform the militia into a national guard. From here the Supreme Court argued that the 2nd amendment referred to the right of the States to arm themselves against the federal government, and thus that as long as the National Guard had military weaponry the citizenry did not need it.

Keyes is trying to turn the clock back to 1791. He is right - if someone in 1791 had tried to tell the American people that they could not own a Brown Bess but had to content themselves with fowling pieces, they would have been pilloried in the press and voted out of office. But, the nation is not frozen in 1776, or 1787, or 1791, or 1800, or at any single previous point. Instead we try to create a moving interpretation of timeless principles.

The current consensus on guns is an interpretation. Guns for the states, that is the National Guard and they get all manner of military equipment. Guns for personal defense, that is a question of social policy and not of fundamental rights, and we can and should regulate which guns are available under which conditions. Ban private ownership of all guns? Probably not, both as a matter of principle and as a matter of vote counting.

The original intent is important. But the original intent on much of the Constitution did not survive from 1787 to 1791, much less past the early 1800s. With guns as with religion as with the electoral college as with the Supreme Court, the point is not what they guys in Philadelphia planned or the guys in New York implemented, the point is how those original intentions evolved to meet changing circumstances.

Keyes is making a valid constitutional argument, but it is also an argument that is contrary to the American fuzzy consensus on guns: guns yes, scary or military guns no.

It was famously said of Henry Clay that he would rather be right than be president. No one who knew him believed he had ever said that. It appears that Keyes would rather be right than be Senator. I wonder if someone will ask him that? I know what his on the record answer is. His rhetorical choices suggest that, unlike Clay, Keyes means it.

Posted by Red Ted at August 26, 2004 10:31 AM | TrackBack