I recently finished “The second amendment: a biography” by Michael Waldman. It’s a very concise read and although it does come from a pro-gun control position, Waldman accepts that there is a considerable amount of ambiguity in both the US Constitution, Bill of Rights and indeed state legislation and precedent going back to the founding of the Republic. The truth is that one could argue both sides of the question: is there a right to bear arms for individuals in the United States?
A plain text reading of the second amendment taking into account the prevailing thought at the time probably leans against such a right existing. The reality is that the founding fathers were actually far more concerned with the possibility of a standing army existing, given their negative experiences of King George’s standing army, and therefore wished a militia made up of armed individuals to be willing and able to take the place of a standing army in the need of maintaining public order or the defence of the state.
It’s also worth noting that when Justice Antonin Scalia wrote his analysis in the 2008 Heller case which effectively created for the first time in US constitutional law a definitive right of an individual to own and bear arms, that Scalia was as engaged in the creative judicial activism which Conservatives so much complained about with regard to cases such as Roe Vs Wade.
The fact that the judge actually affectively ignored half the text of the amendment was as much an act of judicial adventurism as any act are carried out by a liberal judge seeking to find new rights in 200-year-old texts.
One thing that really comes out of the book, however, is the absolute danger of elevating a group of individual founding fathers a quarter of a millennium ago into holy men whose writings and thoughts are now treated as holy scripture.
It is a bizarre piece of American exceptionalism that the Constitution is held not just in reverence, as it should be, but almost like a golden calf to be grovelled before.
It is, of course, easy from an Irish perspective when we have a relatively young constitution by American standards to talk about the need for a constitution to be a living document that reflects the reality of the times in which it has been applied.
Indeed many of the American right object entirely to the idea of the living document instead seeking Safe-haven in the concept of Originalism and the parsing of a specific text for answers and meaning, again like clergy attempting to interpret scripture.
For that is the problem. The founding fathers were not better than today’s Americans and almost certainly would not have wanted themselves to be regarded as being better than today’s Americans, or having some access to some higher level of wisdom that all the Americans living in today’s America don’t have access to.
The truth is that the United States badly needs to hold a revising constitutional convention where it’s elected representatives, whilst respecting the existing text and the service it has given to the American people, recognising that something as important as the Constitution should be revised on a regular basis to reflect the reality of the times in which a delivery.
Not, by the way, that I’m holding my breath as to something like that happening because we know full well how difficult it is to amend the US Constitution. But also that, given the sharp partisan divisions in the American Republic today, any sort of attempt to take a good-faith approach to revising the governing document of the Republic will be regarded with deep suspicion especially from the right but equally probably from the left as well.
It’s a pity because the constant referring back to a document written in an age radically different from the America that Americans live in today is one of the great injustices being inflicted upon the citizens of one of the greatest nations on Earth.