A Meditation on the 2nd Amendment

When I decided to run for Congress this year, the first thing that crossed my mind was ‘Am I too old for this?’ I turned 70 last week (how terribly strange to be 70!). Did I have the stamina; did I have the drive; did I have the physical ability to grind out a campaign for over six months – most of which would occur during Florida’s terribly hot summer? The first time I ran for Congress I was 44; the second time I was 46. Then I sat out a considerable length of time and the third time I ran I was 62. I figured that was pushing it, but my opponent, a Republican incumbent of over two decades, was older than me by a good margin, so I figured what the heck. It was my last run anyway. But now I’m 70 and here I am again.

Now, the second thing that crossed my mind was ‘Am I even allowed to run at this age? Is there an age limit for running for Congress?’ I was pretty sure there wasn’t, but I thought it best to check, so I pulled out my pocket “The Declaration of the United States and the Constitution of the United States of America” (Copyright 2002 by the Cato Institute. All rights reserved) and turned to page 17, Article 1., Section 2., second paragraph where it clearly states:

“No person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

Okay. As far as I can tell, based on this language, there’s no upper age limit to being a Representative, and, moreover, I seem to satisfy all three stated conditions: I’ve been a citizen of the United States all my life, I’ve lived in the State of Florida for 30 years and still do, and if anyone were to look at my picture on the campaign website it can be ascertained that I’m a bit older than 25!

Now if you were to read the Constitution precisely, as I just did, it would be absolutely clear that anyone wishing to “be a Representative” must satisfy all three requirements. For example, if I were 25 and a citizen of the United States, but did not reside in the State in which I would be chosen, I couldn’t assume the office, so running for it would be moot. Same thing if I were a Citizen and an Inhabitant, but hadn’t yet “attained to the Age of twenty Five Years.” Certainly, I would be disqualified. Regarding being a Representative, it’s all three qualifiers or nothing. There’s no wiggle room. You simply need all three. When you read the constitution in this way, you are considered a “strict constructionist,” or an “originalist,” that is, you limit interpretation of legal and constitutional language to the literal meaning of the language at the time of its passage. In other words, the words, as written, mean what they say.

Opposing the strict constructionist ideal is the notion that the Constitution is a living document and that interpretation of its provisions will necessarily change over time based on changes in society’s mores and customs. Strict constructionists tend to be found in the more conservative wing of the modern judiciary, while the more, shall we say, looser jurists often tend to be more liberal in their overall outlook. When interpreting what the founders wrote, these latter folks believe, the words and their intent must be put in historical context because as brilliant as the framers were, they could never have intuited how much our country would have changed over the last two-plus centuries. But times do change, and society, we hope, matures, so basing judicial opinion without taking those mercurial aspects into account is too narrow a way to read and understand our founding document.

So now, let’s go back to the pocket Constitution and turn to Page 43, Amendments to the Constitution of the United States of America, Amendment II:

“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.”

If you were to read this amendment as a strict constructionist, you would have to accept the fact that, just like the example above, the language means what it says. There are two phrases in the one sentence amendment but they are connected; they depend on one another. Remember, you are a strict constructionist, so you would necessarily interpret that “the right of the people to keep and bear Arms, shall not be infringed,” depends upon those people being part of “a well-regulated militia,” as both phrases, together, encompass the framers’ thoughts on the matter.

Keeping and bearing arms was the very basis of how the State militias operated. Each member had his own musket. You couldn’t have a militia without its people keeping and bearing their own weapons, so the Second amendment specifies that that right can’t be infringed upon, because if it were, the very thing it was meant to support – the militia – could not exist. And the framers understood that the militias were “necessary for the security of a free State.”

So why, I must ask, do conservative thinkers (like the Cato Institute, which published my handy pocket Declaration and Constitution, as well as some conservative judges, who like to consider of themselves “strict constructionists”) believe that it’s all right if only one of the requirements of the amendment is satisfied, i.e. the second one, which says that the people may keep and bear arms, but not the first one, which stipulates a “well-regulated militia?” If all three requirements of being a Representative must be adhered to – remember: there’s no wiggle room – why, in this case, is it just fine to say that one requirement is sufficient?

Why has the Supreme Court, for example, affirmed in several landmark cases that the right to bear arms in America is a “fundamental right?” If one were really a strict constructionist, it would be intellectually dishonest to accept that notion. It’s abundantly clear in the original language of the Second Amendment: keeping and bearing arms is predicated on serving in one’s State militia. Here’s how Warren Burger, Chief Justice of the United States Supreme Court from 1969-86, explained it in 1990:

“The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”

Therefore, according to Burger, as well as any honest strict constructionist, the Congress of the United States has the absolute authority to legislate laws and standards concerning the private ownership of firearms in our country and any law that is passed that restricts the type of weapons a citizen can own, who can own them, how they must be bought  and sold, and how they must be accounted for is entirely constitutional and does not infringe on anyone’s personal freedom or “fundamental right.”

So, whether you choose to argue as a “loose” constructionist, i.e. that when the Constitution was written “arms” were muskets, whose power as killing machines were a mere fraction of what today’s semi-automatic weapons can achieve, and thus we should be able to limit private gun ownership because times have changed and lethal technology has evolved, and because the Constitution is a living document that must take into account those nuances, or as a “strict” constructionist who believes that adhering to the Second Amendment’s precise language is the only way to interpret the Constitution, the logical conclusion is the same. We “the people” have the right to place strict limits on “the right to bear arms.”