After referencing the War of 1812 over the weekend, I’ve been reading up on it in an effort to properly explain it to myself. One thing that comes up again and again in reference to the military conduct of the war was how ineffective the state militia was. Winfield Scott called the militia “vermin.” They were undisciplined, not subject to national authority, and tended to go home at inopportune times, like on the eve of battle. Or during battles.

That brings us to the Second Amendment to the Constitution: “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.”

And therefrom has emanated a great deal of argument and thousands of unnecessary gun deaths. The Framers were brilliant fellows, but they didn’t always know what they were doing. They often let their fears get in the way of the practical business of running a country. The attitude towards establishing a national military was perhaps the key example. The American left hated the idea of a national military because experience taught them that this could be a tool of oppression by the government against the people… and they were darned right about that. On a more philosophical level, they also knew from history that when the executive power (kings, generally, but their envisioned president as well) had the tools on hand to rattle sabers and commit the nation to war, liberty tended to go out the window. Wars aren’t just a way of conflicting with external power, they’re a way of consolidating internal power as well. Again, they were 200 percent correct in this, and all you have to do is look at our own time and the way that we and/our our representatives have rolled over for a Big Brother intrusiveness into our lives to see that it is so.

Unfortunately, the problem is that there is always (to borrow from Ronald Reagan’s 1984 campaign) a bear in the woods. If a country doesn’t want to be a guppy among sharks it needs to be able to back up its rhetoric with at least a credible threat of violence. “Speak softly and carry a big stick” is a wonderful policy, but in the early years of the Republic, thanks to the efforts of brilliant but occasionally naive guys like Thomas Jefferson and James Madison, our position was more akin to “Whine softly and then whine some more.” The big stick was sacrificed to a point of philosophy which may have been correct in its perceptions but also wholly impractical.

In their day, the alternative was the state militia: run by each state, loyal to the state, armed by that state. This was the local military deterrent against an out-of-control Federal authority. If one looks at the arguments advanced for the Second Amendment at the time, it’s pretty clear that this was intended as a protection for the states against the central government, not protection of individuals. Still, you could read it that way if so inclined–it doesn’t really change anything. Congress could have written the amendment to say, “Because you can’t have a militia without the individuals composing it having guns to bring to the party, the right of those individuals to keep and bear arms won’t be abridged.” It’s still all about state militia, but the intention, and possible avenues of regulation (you can have the guns that are relevant to militia work, or you can have the guns but must keep them locked up until such time as the governor calls out the militia) become clearer.

That’s not how the Supreme Court currently sees it, of course. It’s ironic, given that the militia has long since given way to a standing army, that the militia never would have been effective against a trained force in any case, never was effective–more than anything, the militia was a romantic myth, as was the idea of a nation with a weak central defensive structure. You lose more wars that way.

Worse, the amendment was written vaguely, thanks to Congress’s eternal felicity for gumming things up (they played around with several different ways of phrasing the amendment before arriving at the one we’ve got), and, one assumes, because they figured everyone knew what they were on about anyway. The problem with that, of course, is that they’re dead and all we’ve got is the written record–which is open to interpretation and no one can be bothered to check in any case. I’m closely acquainted with a real live Constitutional Scholar (TM), and when I advance this point of view he gets downright livid. “Words have MEANING!” he thunders. “They can’t just mean whatever you WANT!”

Sure they can. They always do. The best we can achieve is to come to a consensus on what they mean, but anyone pretending to have a definitive reading of any document, short of the author walking up to you and saying, “This is what I meant to say” is fooling themselves. When we try to settle Constitutional disputes by resorting to the “intent of the Framers,” we’re being delusional. Half the time they didn’t agree on their intent, and the other half of the time they weren’t very good about making their intent clear. And of course, they were highly flawed, nutty people, just like you and me, except without indoor plumbing.

These are the things that come to mind as a consider the War of 1812, in which–in the same campaign–we took the militia, invaded Canada, and ended up surrendering Detroit.

This entry was posted on Tuesday, November 25th, 2008 at 7:07 am and is filed under The Political Mindscape. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.