The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court

Although an interesting way of looking at the 2nd amendment's historical context, I believe this could have been a long a magazine article rather than a book. Author repeats the same things/examples over and over making it a boring read after the first few pages.

This book is a great example of how sometimes lawyers or legal scholar, like Patrick Charles, conduct more thorough research and write better history than historians. Charles is an excellent writer with a to-the-point, evidence-based, jargon-free, non-repetitive and non-thesis-driven approach. He examines the historical context (1780s - 1790s) surrounding the Second Amendment to the U.S. 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."Unlike the current majority on the U.S. Supreme Court or the National Rifle Association, who "cherry-pick" (i.e., deliberately pick out data or court rulings that support their view, while ignoring the laws or cases studies that oppose their view), Charles thoroughly examines ten essential sets of facts or evidence that anyone interpreting the Second Amendment must grapple with:1) each state's gun, hunting, crime and militia laws up to 18002) the Second Amendment's placement in the Bill of Rights3) a textual analysis of the phrase "bear arms"4) a textual analysis of the word "keep"5) a historical analysis of the phrase "keep and bear arms"6) the intent of the framers in drafting the Second Amendment7) the legislative history and intent of the National Militia Act (1792)8) a history of the founders confiscation of arms (e.g., after Shays' Rebellion, 1786-87)9) the framers intent behind the word "state"10) the "bear arms" provision in Ohio's constitutionCharles chides the "individual right theorists," the "collective right theorists" and the Supreme Court majority ruling in D.C. v. Heller (2008) for misconstruing the Second Amendment. He concludes that the right the Second Amendment protects "is the right of an individual to `keep and bear arms' in defense of the United States, in a militia or military force, safeguarding against standing armies - foreign and domestic - and in defense of their liberties. That right, and that right alone, is what the Second Amendment was meant to protect. It is a limited right that pre-existed the Constitution and was a right so essential to the founding of the nation that it `shall not be infringed.' To interpret the Second Amendment in any other way is to take its wording out of context" (pp. 1-2) and its "original intent."I always find it interesting when some current event coincides with a history book I am reading. Recently (Feb 2011), some South Dakota legislators, upset with the individual mandate in the Patient Protection and Affordable Care Act (PPACA) to purchase health insurance, introduced a bill requiring South Dakota citizens to purchase a gun for self-defense. Of course they know the bill will not pass, but they believe they are proving a point that the health care reform mandate passed last year is an unconstitutional federal intrusion on their liberty.But two founding fathers - President George Washington and Secretary of War Henry Knox - initiated the National Militia Act (1792) which mandated "every free able-bodied white male citizen" between 18 and 45 years old to enroll in the militia and arm themselves. Charles notes that "there was much disagreement as to just how far Congressional power should reach" in regards to organizing and arming a national militia. "How could the federal government intrude on the states' right to govern their respective militias?" (p. 72) While there was no definitive answer, the National Militia Act, unlike many state militia mandates, did not exempt poorer persons who were unable to arm themselves. As Charles points out, "the requirement to provide arms was nothing more than a tax." (p. 73) Charles goes on to state that "the act firmly represented the nations' republican beliefs." (74) With the lack of financial resources at the state and federal level, combined with internal and external security threats, the public good required shared sacrifice. As Jack Balkin points out in his blog: The Civic Republican Roots of the Individual Mandate, today's Tea Party and Republican conservatives claim a special affinity for the "original intent" behind the Constitution and the founders' actions. But, they do not have a clue about how the founders sought to sustain civic virtue and a sense of community for the common good. The survival of liberty requires personal responsibility and shared sacrifice.My only slight criticism of Charles' scholarship is his mischaracterization of the adherents of Daniel Shays (Shays' Rebellion, 1786-1787) as "a group of dissolute farmers." (p. 83) Leonard Richards' excellent book about the rebellion acknowledges the grievances of debt-ridden farmers, but also notes the broad community support in western Massachusetts from members of the middle and upper classes who all joined in the popular demand for tax relief.

This book is a liberal biased mess with supplications that just don't hold true. The Supreme Court rules in favor of an individuals right to bear Arms and this author just overlooks it and says they interpreted the 2nd Amendment wrong. What this author fails to mention is all the work done in the 19th century by great legal minds such as St. George Tucker who wrote Tucker's American Blackstone, which if you were a lawyer, was required reading. In this Tucker explains exactly the intent of Madison and the founding Fathers that the 2nd Amendment did protect an individuals right to bear Arms. If Tucker was wrong in his interpretation, then I am sure Madison would have said so and not appointed him in 1917. This book is liberal trash and I do not recommend it at all is it doesn't use facts but liberal biased and opinions.

Since the Heller decision, much literature has come out praising that decision for reestablishing a constitutional right to guns. Charles questions this literature and the judicial objectivity that the Supreme Court majority used in coming to their determination that the Second Amendment protects an individual right to own guns for self defense. He contends, and pretty much proves, that there was little objectivity if any, and that the polarized political stances, collective and individual right models, took over the 5-4 split. Instead, his research provides a merger of the collective and individual right models, pointing out the inconsistancies in both.What Charles ulimately concludes is that through an exhaustive look at all the colonial laws leading up to the adoption of the Constitution, gun ownership and use was a political question based on the police powers of the state. He is not saying indivdiuals shouldn't be allowed to own guns, but that the Second Amendment, and many of the early state constitutions "bear arms" provisions, were not intended to protect individual gun ownership. In his analysis he debunks the myths such as Halbrooks beliefs that "every man be armed" supports the individual right model, and many of the historical assumptions he makes, among the many other arugments that other individual right theorists have put out there.I think Charles most compelling argument comes from his look at Shays Rebellion and Ohio's right to bear arms. In Shays Rebellion the Massachusetts government clearly defined what the right to "keep and bear arms" meant, but somehow this has gone unnoticed by individual right supporters. In addressing Ohio, he shows that there is no substantiated evidence that "defences of themselves and the State" was meant as a right to have arms for personal defense.To most that read this review or Charles' research, it will be assumed he is arguing against gun ownership. This is not so. He is merely saying the Second Amendment protected a very limited right and principle and that individuals need to seek protection in their State constitutions for gun rights. Some States more than others, but Charles believes we need to treat each State's "bear arms" provision on its own merit and leave it up to the people through their right to petition the government. If you are looking for other literature on this topic I would look into "The Second Amendment in Law and History" and David Young's compilation of documents in "The Origin of the Second Amendment." Altough Young and Charles don't agree and it is not comprehensive, it is one of the most detailed compilations of primary sources.

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