Round 2 of the Debate: Not So Fast!.

I'm not letting ANYBODY duck a question that easily. You wrote:

Let me answer the first part of the question with the only definitive answer we will likely produce in this debate: “Nobody knows”. We cannot presume to know what the “single intent” of hundreds of people attending the state ratifying conventions ever was (even they probably couldn’t agree on that). There were few records kept so all we have is, ultimately, speculation. Any idea that we can somehow divine the “true intention” of either the framers, or those that ratified it is quixotic task, and doomed from the start.

I don't think so, Alex. Because when questions pertaining to the intent of the Constitution and Bill of Rights came up, it was the job of the JUDICIARY to determine what the words meant - and they certainly didn't say "Nobody knows." They looked at the evidence available - the Federalist Papers and other writings of the Founders and of public debate, and drew conclusions making legal judgements based upon those conclusions.

"Nobody knows" is a cop-out. We do know. All we have to do is the research.

Regardless, your answer to the second part of the question renders the first part moot:

Which gets to the second part of the question, “does it matter today?” My answer is, obviously not. Relying on someone’s personal beliefs from 1787 as the basis for governance in a modern society is a recipe for disaster.

Good that we have that out of the way right up front. It makes things considerably easier. It also illustrates that you haven't thought this through too much.

I can see that I'm going to enjoy this.

Alex, I don't know how old you are, but I can tell that you're relatively ignorant of early American history - and specifically about the Founders themselves. Your comment

But the same genius of Jefferson that saw so much in the power of freedom and liberty, was oblivious to the inequality of slavery- mankind’s greatest affront to life, liberty and the pursuit of happiness. What does it say if the mightiest mind of that time (a biased opinion for sure, but one I’ll support) could be so ignorant as to allow this atrocity to remain legal? They also (many of them at least) supported the subjugation of women, many restrictions that kept the unwashed masses in their place, and other practices that we would find objectionable by any modern standard.

is quite telling. On the question of slavery, Jefferson - author of the Declaration of Independence - said this:

"There is nothing I would not sacrifice to a practicable plan of abolishing every vestige of this moral and political depravity."
(Letter to Thomas Cooper, September 10, 1814)

And this:

"But this momentous question, like a fire bell in the night, awakened and filled me with terror."
(Letter to John Holmes, 1820)

And this, from that same letter:

"I can say, with conscious truth, that there is not a man on earth who would sacrifice more than I would to relieve us from this heavy reproach, in any practicable way. The cession of that kind of property, for so it is misnamed, is a bagatelle which would not cost me a second thought, if, in that way, a general emancipation and expatriation could be effected; and gradually, and with due sacrifices, I think it might be. But as it is, we have the wolf by the ears, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other."

Take a gander through this paper (a PDF file) for more info on Jefferson's attitude towards slavery.

Politics, it is said, is the art of the possible. Jefferson recognized that slavery was either (no pun intended) the lynchpin that would allow the formation of The United States, or the shear-pin that would sunder it. He also understood that the economy of the U.S. was, at that time, dependent on it.

The Founders were certainly idealists, but not starry-eyed ones. They were fully "reality-based." "Oblivious" they most certainly were not.

Words mean things, else they need not be spoken or written down. On the topic of interpreting the Constitution, Jefferson himself said this:

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
Letter to William Johnson, June 12, 1823

The Constitution and the Bill of Rights is not a guideline, not a mere suggestion of what society ought to do, it's a legal document that establishes and constrains a government. It is, in a way, a binding contract - and the party that is bound is the government. The problem is that government is made up of people - and unfortunately far too many of the people in that government think like you do - thus the protections that legal document are supposed to afford those of us who live under it are eroded away.

You point to the obvious injustice of slavery, the apparent injustice of a lack of women's suffrage and other heinous iniquities - and justify throwing the baby out with the bathwater.

The Constitution carries within it the means by which it can be altered, legally. We've used that means to give women the vote, repeal slavery, and protect the rights of those freed, and of other minorities. Unfortunately, we've also used it to empower Congress to collect income tax, to establish the popular election of Senators, and to ban alcohol. (At least we were bright enough to reverse the ban on alcohol.)

But what you espouse is disregard for the document because it's old and outdated.

I have to ask, upon what will you build a new edifice? If we cannot know what the Founders meant when they wrote and ratified the Constitution, if their words are meaningless to us now, why should the words you wish to replace them with have any more meaning?

Antonin Scalia has decried precisely what you champion:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

What 'we the people' want most of all is someone who will agree with us as to what the evolving constitution says.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say?

(Excerpts from a speech given in New Orleans, March 2004)

He also said:

To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don't really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.

The primary difference between you and I, Alex, is that I have an allegiance to that document, and you do not. The purpose of this debate, from my perspective, is to get you to understand why we need that allegiance, and why disregard of it is the most grave error we can make.

Was the Constitution perfect? Hardly, but while it may not have been the greatest document ever recorded (as someone once quipped) it beats the hell out of whatever they're using these days.

"Old" and "flawed" does not equal useless and wrong. By all means, if it needs changing, we can change it, but declaring it meaningless simply eviscerates it. That "abiding belief" vanishes, and the law behind it along with it. The Second Amendment means today what it meant when it was ratified. No amendment has been passed reversing it, and no law can be passed that will obliterate it. Only if we as a society cease to possess an abiding belief can we be stripped of our right to arms and our other rights guaranteed against infringement and usurpation by the legal document that is our Constitution.

The Second Amendment does read "the right of the people to keep and bear arms, shall not be infringed" - that's the key, critical phrase. The militia clause is explanatory, not limiting, and the best illustration of that comes from one of the worst Supreme Court decisions ever handed down: Scott v Sanford. You may not be familiar with it.

A slave, Dred Scott, was the property of a U.S. Army officer, and at one time he travelled to a "free" state when the officer was stationed there. After the death of the officer, Scott sued for his freedom, claiming that since he had lived in a free state, he could no longer be a slave. In a 7-2 decision the Chief Justice said that Scott was not free and further that blacks, free or slave, could not be citizens of the U.S. because:

(Citizenship) would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

So, in the name of "public safety" the "privileges and immunities" of all citizens (members of a militia or not) were denied to blacks.

The argument I most often hear in opposition to this case is that it is so obviously racist that it must be ignored - but hardly ever does anyone bother to grasp that Justice Taney and the other Justices thoroughly understood what the Constitution and the Bill of Rights meant when it came to the rights of citizens. Perhaps, like Jefferson, they were afraid of "letting go of the Wolf's ears," but NO ONE can claim that "Nobody knows" what the Founders meant when they ratified the Bill of Rights. In 1856, a mere 64 years after ratification, the Supreme Court listed what just some of the "rights of the people" were: the right to enter every other State whenever we please, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as we please, to go where we please at every hour of the day or night without molestation, unless we commit some violation of law; the full liberty of speech in public and in private upon all subjects; to hold public meetings upon political affairs, and to keep and carry arms wherever we go.

Those rights haven't been legally stripped from us, they've been usurped. And they've been usurped because far too many people believe, like you, that the Constitution is old and outdated. They've lost that "abiding belief," and allowed others to convince them that those rights aren't important, and don't need to be defended.

The Second Amendment is hardly the only one under constant attack, but it's the one on which a legal "bright line" can be drawn most easily. It is, in my opinion, a litmus test for freedom, and it is my purpose here to help you see why, and to understand why those of us you term "strict literalists" are trying to protect not only our rights, but yours as well.

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