
Anti-Gun, Pro-Second Amendment - jballanc
https://medium.com/@manhattanmetric/anti-gun-pro-second-amendment-e37e427ef7d6
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wahern
The author makes the same mistake many Americans do: that the Bill of Rights
was about preserving individual liberty. But the Bill of Rights was
principally concerned with explicitly outlining the limits to Federal power,
_especially_ as Federal powers potentially conflicted with State powers.

That's why the First Amendment begins with "Congress shall make no law".
States were of course free to makes laws respecting the establishment of
religion or abridging the freedom of speech. And they did. Massachusetts, for
example, made membership in a Christian church _mandatory_. Part of the
purpose of the amendment was literally to preserve the ability for states to
abridge those freedoms as they saw fit under their own law.

Similarly, this is why the Second Amendment says "being necessary to the
security of a free State". "State" isn't referring to the United States or the
abstract concept of a state, but literally to the various States of the new
federation. The Federal constitution gave the President executive power over
state militias, and Congress the power to regulate them. But what if a State
wanted to use its militia to put down internal dissent (like a slave
rebellion), or repel external invaders (Indians, Spanish settlers, etc) at a
time when the President or Congress, for foreign policy or other national
concerns, were hesitant to act? The States wanted to make sure that their
militia couldn't be disarmed, or be forced to keep their arms in federally
controlled depots, leaving the state entirely at the mercy of the Federal
government for its self defense. Indeed, the extent to which the Federal
government could control state militias was one the _most_ contentious areas
of debate surrounding ratification of the Constitution.

To be sure many State constitutions had clauses regarding freedom of speech,
the right to guns, etc. But they were worded quite differently, diverse in
their text and in their interpretation under State law. Importantly they were
typically interpreted much less strictly--largely because it was felt that
State governments were far more democratic, legitimizing any restrictions
passed by legislatures. The history matters if you're going to draw grand
conclusions. In as much as the Federal government today can be considered more
democratic (we do elect our Senators by popular vote, now), then 18th century
logic suggests we should be more tolerant of Congress directly limiting
individual freedoms, at least as an abstract matter--before we get to the
question of what precisely the Federal constitution permits.

It's also worth mentioning that the phrase "the people" _usually_ referred to
the people of each state as distinct bodies; and very often the people of each
state as assembled and represented by their legislature. There was a strong
debate about whether the United States had a singular body politic of "the
people", from which it derived its legitimacy, or whether it was purely a
creation of the States. At the founding the majority opinion was firmly in the
latter camp. It wasn't until the Civil War that this conception had clearly
shifted. Abraham Lincoln's famous line from the Gettysburg address,

    
    
      that this nation, under God, shall have a new birth of
      freedom--that government of the people, by the people, for
      the people, shall not perish from the earth
    

establishes the Federal government as deriving its powers directly from, and
directly owing allegiance to "the people" of the nation as a whole, without
States as intermediaries. Another way to parse what Lincoln was saying was
that the Federal government had a duty to protect those people--e.g. slaves--
who were being oppressed by the State in which they resided. The notion that
the Federal government would ever be in a position, let alone have a duty, to
protect people from the laws in their own States would be, to say the least,
virtually unthinkable to the Founders.

