Pauline Maier on 2nd Amendment (op-ed item: NY TIMES): Did James Madison mean?

excerpt of many paragraphs at this URL:  http://www.nytimes.com/2010/12/22/opinion/22maier.html?nl=todaysheadlines&emc=a212

Justice Breyer went further in his Fox interview. He said that James Madison wrote the Second Amendment because some Americans feared that Congress would call up the state militias and nationalize them. Madison proposed the amendment, the justice said, to appease these skeptics and to “get this document ratified.” Justice Breyer continued: “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

There is a problem with this argument: by the time Madison proposed what became the Second Amendment on June 8, 1789, the Constitution had already been ratified and was in effect. Rhode Island and North Carolina had yet to ratify, but it’s hard to believe that Rhode Island, with its many Quakers, would be enticed into the Union by an amendment affirming the right to bear arms.
Madison’s actual motives for proposing the amendments, as a representative in the first federal Congress, are well documented. He hoped to “parry” the call for a second federal convention to consider amendments proposed by several state ratifying conventions, one of which would have modified Congress’s wall-to-wall taxing powers.
He proposed amendments asserting “the great rights of mankind” — to which, ostensibly, nobody could object — in hopes of cooling support for a new convention that might have curtailed the powers of the new government. Madison did not include an unambiguous assertion of an individual right to own guns on his list; clearly he did not consider it one of the “great rights” on a par with freedom of conscience and of speech.
Instead, Madison reassured those who feared Congress’s new military powers, as he had done earlier in Federalist 46. The Constitution said Congress could raise an army and navy. Nonetheless, one of his proposed amendments promised that the people would never be subject to federal military rule because their “right to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country.”
Congress rewrote Madison’s language somewhat — “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.” In 18th-century laws, the preamble (in this case, the first clause) stated the purpose of an enactment. Thus the right to keep and bear arms was granted as a means to sustain that “well-regulated militia.” That’s what Congress meant, and what the states approved.
Incidentally, did you ever wonder what happened to the militia? It was beloved in the 18th century because of the belief that as an amateur home-defense force drawn from the adult male population, it would never turn against the people like the standing armies that did as they were commanded. Indeed, the militia would protect the people against tyrannical power.
Those traditional militia companies, which were normally called into action by the states, were never a particularly effective military force. They limped along through the 19th century until the Great Railroad Strike of 1877, when militiamen fraternized with the strikers rather than protect the railroad owners’ property.
Their actions provoked a reorganization and professionalization of the militia, which became known as the National Guard. Finally, the so-called Dick Act of 1903, named after Charles Dick, an Ohio Congressman, made the National Guard a backup to the Army, and mandated that it adopt the same organization, weapons and discipline.
The Constitution says Congress can call up the militia only to “execute the laws of the union, suppress insurrections and repel invasions,” all tasks performed within the United States. Yet today there are National Guardsmen in Iraq and Afghanistan. That is possible because the militia, which the Second Amendment was intended to protect, is defunct. Are we less secure or less free as a consequence?
Thanks to the decision in Heller, an individual right to bear arms is now established in American law. And in Heller’s sequel, McDonald v. Chicago, the court majority last summer said the states are bound by the Fourteenth Amendment to honor that right.
How far the court will go in striking down state and local gun laws remains to be seen, although the outcry against Justice Breyer’s comments shows that conservatives are looking to press the issue. In any case, one thing is clear: to justify such rulings by citing Madison and the other founders and framers would not honor their “original intent.” It would be an abuse of history.