As president Obama embarks upon his latest unilateral campaign to repair the world, this time by expanding restrictions on gun ownership, it’s worth revisiting my article on the Second Amendment from 2010.
Perhaps the greatest danger to the Constitution is manipulating its words to validate predetermined conclusions. By doing so, we violate the talmudic admonition against making the law “a spade for digging,” i.e., a tool to advance our own ends.
To preserve constitutional integrity, we have to familiarize ourselves with the context of its times, then apply those observations to the times in which we live. That only works when we are committed to honoring the system, rather than exploiting the system to fit our own agenda.
Last month’s Supreme Court ruling affirming Second Amendment states’ rights (and coinciding with the predictable Republican grilling of Supreme Court nominee Elana Kagan over the same issue) has brought back into the spotlight the constitutional ambiguity regarding gun ownership in the U.S. of A.
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. So states the Second Amendment to the United States Constitution. At first glance, the stipulation seems clear enough. American citizens may own guns, plain and simple.
Or maybe not. The qualifying phrase that introduces the amendment appears to restrict constitutional protection to dependence upon a militia, or citizen army, to defend the nation. Accordingly, in times such as ours, when a standing army has assumed responsibility for the common defense, there may be no constitutional guarantee at all. And so, on second thought, the amendment seems to clearly limit the extent of private gun ownership.
Or, again, maybe not.
Perhaps the Founding Fathers meant that, since every citizen ultimately owns an equal share of the responsibility to defend his country, the right to bear arms is part and parcel of each person’s national duty to fight for the public welfare should the need ever arise. This would explain why the authors of the amendment might have mentioned a militia even if they never meant to restrict said right.
So what was the original intent of the Framers? If they were here, we could ask them. Since they are not, each side seems to have a fair and reasoned claim to support its respective position.
Is there any way to resolve the question of what was intended by men who passed away long before our grandfathers were born?
In fact, there may be.
THE REST OF THE STORY
Imagine that, as you pass by a window, you see a man wearing a mask raise a knife and plunge it into the chest of another man lying prone beneath him. You scream for the police, certain that you have just witnessed a murder.
Or, yet again, maybe not.
Now imagine that you were unfamiliar with the concept of open-heart surgery. Only after the police arrive and explain that the man in the mask is a surgeon working to repair the heart of the man on the table beside him will you understand that he is in fact saving a life and not taking one.
Context is everything. It orients us in time, space, and circumstance, transforms isolated acts into links in a chain of connected events, none of which can be understood in isolation. And so, if the words of our forebears sometimes appear to us muddled or imprecise, the surest way to achieve clarity is to examine comments and opinions from the same thinkers and the same era.
James Madison, on the principle of individual rights: [A bill of rights] should more especially comprise a doctrine in favour of the equality of human rights; of the liberty of conscience in matters of religious faith, of speech and of the press; of the trial by jury… of the writ of habeas corpus; of the right to keep and bear arms.
Massachusetts Representative Fisher Ames: The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.
Supreme Court Justice James Wilson, contributor to the drafting of the Constitution:The defense of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.
Vice President Elbridge Gerry, signatory to the Declaration of Independence, on national defense: What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty.
In the context of the times, the intention of the Framers becomes difficult to debate. Only in relatively recent times, when the concept of a militia has become an anachronism, has it become possible to question the true meaning of the Second Amendment.
PRESERVING THE INTEGRITY OF THE LAW
Is there any way for words to retain their clarity despite the persistent evolution of cultural references and values? Is there any method for protecting ideas from the ravages of changing times and sensitivities?
Indeed there is. It predates the United States Constitution by 31 centuries, and it is called the Oral Law of the Torah.
Consider these biblical commandments:
Remember the Sabbath Day and keep it holy… And this will be a sign upon your arm and a remembrance between your eyes … Slaughter your [livestock] in the manner that I have prescribed… Do not seethe a kid in its mother’s milk.
These precepts, as they are written in the Torah, are impossible to observe. What does it mean to keep the Sabbath “holy,” and what actions — if any — are required to “remember” it? What kind of sign are we to place upon our arms, if elsewhere the Torah prohibits the application of any tattoo, and how do we place a “remembrance” between our eyes? Nowhere does the Torah outline any prescription for ritual slaughter, nor does it imply what is commonly understood, that that the prohibition against cooking a baby goat in its mother’s milk extends to every mixture of meat and dairy products.
In spite of these and many other ambiguities, the basic practices of the Torah observant community have remained essentially unchanged for over 3300 years. The explanation is simple. Unlike the family encyclopedia which once gathered dust on the shelf and now gathers dust on the CD rack, the Oral Torah forces every committed Jew to see himself as custodian of a living tradition that connects him with the origins of his identity and enables him to live in the modern world without compromising the values of his ancestors.
No longer purely oral, the discussions and debates of past authorities have been recorded for their children in the writings of the Talmud and the commentaries that elucidate them. Unlike the records left behind by the Framers of the Constitution, however, these records have become canonized as part of the structure and process through which Jewish law is determined in each and every generation. Even when questions and disagreements arise, there is no debate within the Torah community over the methods through which answers and solutions are to be found.
Society changes, technology changes, and the values of human beings twist in the winds of time like a weather vane spinning before a storm. Electricity, automobiles, computers, cloning, and in vitro fertilization may have once been unimagined, but we have inherited a legacy that teaches us how those earlier generations would have resolved the problems of our changing world if they were here themselves today. And so the Torah Jew never loses his bearings, for he is guided by the words of his forefathers and finds comfort in the knowledge that the ancient wisdom of the Torah will never become stagnant, corrupted, or out of date.
As my teacher Rabbi Nota Schiller often says, the Oral Torah allows the Jews to change enough to stay the same.