The Original Second Amendment, Its Religious Disposition, and Its Modern Originalism


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The Original Second Amendment, Its Religious Disposition, and Its Modern Originalism

The Court’s original methodology seems to have evolved over the years since Hellerwhich makes it particularly important to revisit a specific part of the history of the Second Amendment – ​​the original draft which the Chamber debated and voted in favor of adoption. This version included a clause, omitted from the later Senate version, stating: “. . . but no religiously scrupulous person will be compelled to bear arms. The House debated this clause at length and the version of the amendment it adopted included it. Then, for reasons lost to history, the clause was dropped when the amendment passed the Senate (the Senate slightly modified several of the Bill of Rights amendments, making them more concise). Judge Scalia skipped a section of the opinion Heller (at pp. 589-90) to respond to an argument in the dissenting opinion of Judge Stevens regarding this “conscientious objector” clause, although the two opinions in Heller quoted a later version which included some changes proposed in the House debates: “but no person religiously scrupulous in bearing arms shall be compelled to do military service in person”. Stevens’ majority and dissent in Heller called it the “conscientious objector clause”, although this expression was not used at the time. After Bruen, the conscientious objector clause in the original Second Amendment deserves another look, and it might be relevant to gun policy today. Justice Scalia and Justice Stevens were partly wrong in their comments in Heller – both on the Quakers and on the clause of the original proposed amendment. Judge Stevens overstated the case when he said the exemption proved the whole amendment was about state militias versus federal standing armies, because the citizen-soldiers who made up the militias normally had to bring arms. they had when they showed up for work. Having militias meant having guns, but also implied something about private property rights to guns: guns held by private individuals were, to some extent, held in a kind of quasi-trust. public. Judge Stevens was correct, however, that the clause itself, and congressional debates over the clause, reveal that the public at the time did not have a clear notion of civilian gun ownership. which was completely and always distinct from armed military service. /blockquote> The relevance of the first (today) little-discussed version of the amendment is of historical interest to those interested in the role played by Quakers, slavery and Native people in early discussions of rights guns in America, writes Stevenson. But it also has implications for gun politics today. From the article:

In terms of relevance to modern gun policy, I have arguedas did Ian Ayres and Fred Vars , for states and/or the federal government to facilitate self-banning, a means for citizens to waive their right to own guns (either for personal safety or for reasons of conscience) and to s ‘add to NICS background check databases so that they are unable to buy a gun, at least from sellers who do a background check. Ayres and Vars also propose allowing (via multiparty contracts) gun-free business districts, and it’s easy to imagine something similar for separate residential communities, such as a homeowners association or condominium association. Joseph Blocher made similar arguments in his article The right not to keep or bear arms . In addition to the clause itself, the decision in Bruen warrants another look at the debates Congressional originals on the Second Amendment, which centered on the conscientious objector clause, and specifically on the issue of Quakers in the New Republic. Quakers also appeared in the First Congress at other times – when Congress debated the permanent location of the nation’s capital (concerns were raised about its location in a location dominated by Quakers), when they debated a militia bill and when the cult petitioned Congress. for the abolition of slavery, provoking explosive tirades from representatives of the southern states. William Laughton Smith exclaimed of the new republic: “We got caught up in our mutual bad habits and our respective ills, for better, for worse; the Northern States have adopted us with our slaves; and we adopted them with their Quakers. Quakers even staged a sit-in in the building where Congress met, occupying the second-floor gallery overlooking Congress as they debated the petition to abolish slavery; they traveled in force to New York and Philadelphia (wherever Congress met) to pressure individual members of Congress to exempt them from serving or supporting any military activity in any way, and to abolish slavery. They accost the representatives in the street, visit them in their offices, etc. Every time Congress has discussed Quakers, similar points have been raised by the same members. When these other debates of the First Congress are read in conjunction with the debate on the Quakers and the Second Amendment, it appears that the “right to bear arms” was closely related to the question of slavery, Indian relations and the westward expansion of the territories, taxation and the federal government’s assumption of state war debts and the retail supply and distribution of firearms. At the time, Quakers were a large, tight-knit, wealthy, and socially influential group, at least on some issues, and the strong positions Quakers took on each of these issues (militias, guns, slavery, Indians, taxes, westward migration, etc.) connected them even more.

Read it whole room here and more of Stevenson’s writing for center here .

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