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Sunday, Mar 24 2013 11:00 PM

BRIK McDILL: Framing the 2nd Amendment through Story's interpretation

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    Brik McDill

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Confusion about the meaning and intent of the Second Amendment seems to be swirling around the gun control debate. Perhaps a quick synopsis of its history might help. No question about its original intent can long linger: A need for well-provisioned state militias of privately armed citizen volunteers was clearly demonstrated during our two revolutionary wars with Britain (1775-1783 and 1812-1815). No provision for a permanent standing army was made in our Constitution by the framers; indeed, it worried them deeply that a standing army might lead the country away from a democracy and toward a permanently militarized monarchy. The New England states at that time were pushing hard for a president-for-life (perhaps even hereditary) and a hereditary senate (appointment of senators for life, passing to their heirs -- much like the U.K.'s House of Lords and its peerage). Conflict about what New England wanted, as well as the rest of America, waxed and waned throughout the Washington and Adams presidencies and extended deeply into Jefferson's. With Madison's election, the issue fairly faded and America's preference for democratically elected leadership carried the day. Our nation crystallized into its present democratic (small "d") system of governance.

The period of the Washington and Adams presidencies brought a new spin to the Second Amendment as seen in Jefferson's famous remark, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." During his presidency, Jefferson spent no small amount of time fighting against the New England monarchists and understood fundamentally that armed resistance might be needed not only against Britain, as it later occurred in 1812, but possibly against New England Federalist-monarchists were they to achieve their goal of monarchical and military control of our new nation.

Well-read and educated American leadership outside of New England did not want to see the recurrence of the internal revolutions that tortured England during the years of Cromwell and Charles I and II. The monarchists were a serious political force, and threat, during the early years of our country and fear was rampant that our experiment in democracy might go seriously sideways were the monarchists to ascend to power.

Enter Joseph Story, Supreme Court justice (1811-1845), appointed to the seven-member bench by Madison. During his tenure as justice, Story wrote his magisterial multivolume "Commentaries on the Constitution of the United States." A popular public educator as well, he followed up his many densely written legal commentaries with one written for the common reader in common language, namely "A Familiar Exposition of the Constitution of the United States," in which he expanded upon Hamilton's Federalist No. 28 (well-armed militias) and developed his view that the Second Amendment was clearly intended to protect the American public from any "wrongful usurpation of power" by those in elective office.

The fear of the New England Federalist-monarchists by the rest of America, especially the southern and western portions, was still strong enough during that time that the rest of the nation rightly feared a real internal takeover against democracy. Story, knowing well that internal enemies (the monarchists), as well as external (England, France, Spain) might still do injury to this new, still experimental nation, expressly stretched the meaning of Second Amendment into a one-sentence "manifesto" empowering every citizen and every spontaneously arising grass-roots group with the right to bear arms against any takeover of powers rightly delegated and belonging to citizens themselves.

That is not the end of the story. Recent Supreme Court rulings have sanctified the Second Amendment into holy writ, but are we really still in an era where after more than two centuries after its ratification, we still need to worry about potential usurpers as then feared? The death knell for the monarchists sounded loudly and permanently during the Madison presidency. We now have the power of the vote rather than of the rifle to express our populist wishes. I'm not against guns, not by a long shot, but maybe it's time to step back and carefully rethink our way through things then versus now.

Brik McDill, Ph.D., of Tehachapi has spent 40 years in private practice in clinical and forensic psychology. Community Voices is an expanded commentary.

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