I sometimes feel as if almost everyone in the United States takes not only the laws, but the Constitution, if not most of the foundations of our nation, out of the context in which the framers set them, all the while screaming about rights that the founders never envisioned.

The state of Utah, and a number of other states, have been attempting in various ways to circumvent federal rules and regulations established under laws passed by Congress, and the rationale for these acts is that Congress is acting against the Constitution, but Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  In short, federal law supersedes state law.  And, if the Supreme Court declares a law Constitutional, then it is. Period.

You may not like the law.  You can certainly lobby and try to persuade Congress to change it, but state laws cannot overturn a federal law, except by a successful appeal to the Supreme Court… and yet a number of state legislatures have passed or attempted to pass laws in contravention of federal law.  Doesn’t anyone remember the bloodiest conflict in U.S. history, caused because a handful of states insisted that state laws preempted federal authority?

As a side note, interestingly enough, there is a section of the Constitution which states that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This does suggest that the Founders did not believe that information should be “free.”

I just read about a lawsuit in which the plaintiffs contend that they have the right under the first amendment to inundate a website that they oppose with such a volume of internet traffic that it results in denial of service and renders the website inaccessible to others.  Come again?  You have the right to use your freedom of speech to deny others theirs?  I don’t see this in the text or the subtext of the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now the case in point sounds extreme, but how would that be, in practice, much different from the impact of the Citizens United decision, which essentially said that, if you have enough money, you can buy up the airwaves to the point where you deny others the right to express their views.  The Founders, with the possible exception of Thomas Jefferson and his mistrust of the power of massed financial interests, never envisioned a modern communications system where “free speech” is not free but purchased by the minute.

Likewise, there’s the bit about an “establishment of religion.”  In the context of the time, and even in the language, it’s clear that the founders did not want Congress establishing any religion.  Yet lawmakers have attempted and in some cases been successful in legislating religious doctrines into law, in issues such as abortion, evolution, and in school curricula and even public school textbooks.  Yet these same legislators are all too often the ones who complain that “liberals” or others are thwarting the intent of the Constitution.

Then, there’s the second amendment to the Constitution.  The words are fairly simple: “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.”   How does context matter?  To begin with, at the time the amendment was adopted, “arms” that could be used by the people consisted of swords or sabres and single shot pistols and rifles.  Anything larger or more deadly, such as cannon or warships, was clearly the province of governments.  In addition, although the U.S. Supreme Court has ruled that the Second Amendment does convey an “individual right” to keep and bear arms, it has also held that such a right exists primarily as a right of self-defense.  Both historical context and law would strongly suggest that it is stretching the Second Amendment, if not smashing it, to contend that it conveys an inviolable right to any kind of weapon an individual wants to possess, the National Rifle Association notwithstanding.  And, in fact, the previous ban on assault weapons was held to be Constitutional.

Now… all of this won’t persuade anyone who thinks differently about these and other issues, but for the record, I’m suggesting that the actual words of the Constitution and the context in which they were adopted do indicate what the Framers had in mind… and not what we’d like to hope they had in mind.


20 thoughts on “Context”

  1. cremes says:

    Wow, I never had you pegged as an originalist.

    I love how in your view the 2nd amendment only covers swords & muskets but the 1st amendment clearly covers web sites.

    The cognitive dissonance… is earth shaking.

  2. You’ve got the cognitive dissonance. I was talking about classes of weaponry. I never said it only covered those classes of weapons. I did say that the context and the history favored separating weapons into those used for self-defense and all others.

    1. Steve says:

      The Pensylvannia and Kentucky rifles at the time of the American revolution had rifled barrels making them accurate out to 200-400 yards but they were very slow to load. Thus they were used to snipe at the British lines from hiding. For this reason they were a great gun for hunting or killing men from a distance. They were not good home defense weapons.

      Muskets were commonly used for close range including home defense as they could be loaded with shot and could be reloaded quickly.

      The second ammendment is NOT about hunting or home defense. It is to assure the security of a “free state”. One common interpretation of free state based on other political writings of the time is a country free of despotism. This would indicate an individual responsibility within the population as a whole to bear arms in defense of the freedoms established in The Constitution.

  3. G.Thomas says:

    I have pondered the musket issue related to the 2nd amendment and have mixed views about it when trying to extrapolate it forward to today. At the time the 2nd amendment was written there was little difference between the arms someone in an army used and the arms that a civilian used. Single shot musketry ruled the day making a civilian militia useful in military terms. And actually civilians using rifled musketry owned arms far superior to the smooth bore muskets of most of the military.

    Logic then would seem to dictate that civilians should have the right to own personal arms similar to those of any current military since any irregular militia formed by civilians bearing .22s, shotguns and single shot sporting rifles would be useless against a modern military sporting high power high capacity automatic weapons and body armor.

    How far you take that logic though is another matter. Civilians at the time of the Revolution could fight on an even footing against the military of a government, however, even with similiar fire power I’m not so sure that is true today. So are arms for personal defense only or are they for safe guarding a population from the dangers of a predatory government they may need to defend against someday?

    You are right however in pointing out that society is rife with points of view suported and based on information taken out of context.

    1. Your point is valid, if one compares the weapons carried by an individual. But at the time the Constitution and the Bill of Rights were adopted, the only equivalent of a rapid fire rifle with a 30 or 100 bullet magazine was a cannon loaded with grapeshot, and that was a weapon reserved for a government force. Several years ago, it was discovered that it is indeed possible to construct a suitcase sized nuclear bomb. The “logical” extension of the idea that, if an individual can carry it, it’s an individual weapon is that the second amendment, due to changing times, also allows personal nuclear weapons.

      1. Derek says:

        In terms of raw destructive power, I do agree that the equivalent to the current rapid fire rifle is probably a cannon loaded with grapeshot. But I am personally torn over whether we should be drawing equivalents in just destructive power, or also considering the modern equivalent of your standard infantry weapon? I’m not sure if it is all too extreme to want at least the equivalent in range and caliber, but in terms of magazine size and rate-of-fire I can see regulation being necessary.

        The two major themes I end up seeing from the extreme end of the pro-gun debate are self-defense and revolution.

        If we’re arguing under just self-defense, an AR-15 with a regulated magazine size seems reasonable, especially because in my own personal experience I find that I am far more competent with that weapon system due to my time with the U.S. Army.

        If we’re arguing from the revolution mindset that some of the far-fringes have, well, you can justify just about anything. I don’t mean to demean anyone, but I really do find the revolution mindset the by-product of quite a bit of kookiness. You don’t need an anti-material rifle to protect yourself from a predatory government, you need a voter registration card. We also have the National Guard (a State entity, not Federal) that is made up of members of your community who I am sure will more than willingly lay down their lives in some dystopian future against a predatory government.

        Sadly, the revolutionary mindset seems to be what leads people to believe exercising their second amendment rights involves strapping an AR-15 to their back and strolling through the local strip-mall. Even though I am in favor of conceal and carry permits (albeit I hope one day with much stricter requirements) I die a little inside every time I see that brand of kooky.

  4. Noan says:

    Like Cremes, I find this post shows much cognitive dissonance.

    At the time of the Constitution, property rights were totally different from today. Blacks were possessions. Copyrights lasted 14 years. Corporations had no “freedom of speech”, and their charters said they only exist for a few years.

    Today black people are free. “Intellectual property” is a federal matter and copyright lasts until 120 years. Corporations never die but have the rights of people.

    The constitution is dead. The right of habeus corpus from the English is gone. The NDAA says you have no right to a trial if Obama does not like you. You want to protest? You cannot protest near big meetings because of “no protest zones”. Privacy? Facebook, NSA, and Google record everything you do. But you say Americans can “lobby to persuade Congress to change a law”. Ha! Not true. Those are paper rights, not real rights.

  5. There’s been plenty of successful lobbying to change laws, and like you, I suspect, I don’t like all the changes… but it still happens. What you’re saying is that the changes you want aren’t being successfully lobbied and adopted.

    1. Noan says:

      What laws have been changed by the people for the people and against the interests of companies? If laws only change because companies want them to, lobbying does not count as a real right, only a mirage.

      1. Like it or not, the Affordable Care Act, aka “ObamaCare,” certainly has been opposed by the vast majority of companies… and the corporate protests have been long and loud… also the attempts to avoid and evade it.

        1. Noan says:

          I remember that the manufacturing companies said that the cost of health care made it difficult to sell cheaper than German companies. GM said that $150 of the price of every vehicle price paid for their worker’s medical insurance. So those companies are happy.

          The polls said that american people wanted a single-payer system but the politicians did not allow it because the insurance companies did not want it.

          So is “Obamacare” what the people want, and not what the companies want?

          1. The GM statement was made several years ago, before the ACA, and the ACA doesn’t affect GM that much. It does affect the fast food and retail industries enormously… and they’re not at all happy.

  6. R. Hamilton says:

    So where does the 10th Amendment fit in with the 2nd clause of article VI?

    A constitutional federal law takes precedence over state law. But the federal government has very little business regulating something except where it crosses state boundaries – the commerce clause covers INTERstate commerce, and maybe even borderless fluids like air and water, but not pot grown and consumed within a state (not that I’m a fan of legalization) nor weapons made and bought within a state.

    The 10th Amendment only makes sense if the Federal Government is limited to constitutionally enumerated powers, or those inescapably necessary to implement enumerated powers. How can one argue that the Federal Government hasn’t grown far beyond that?

  7. Ryan Jackson says:

    Does anyone else find it… interesting that several posts in response to today’s blog do the very thing Mr. Modesitt comments on as being a problem? That is, specifically altering context of what they read to fit their pre-conceived idea of how the arguement should go.

    I also find it a bit interesting that some people seem to be unable to understand or comprehend a comparison or analogy. As Mr. Modesitt says above, he is not suggesting personal arms be limited to single shot weapons and blades, he is making a comparison to where the divide was back then to where it is now. Yet the first argument made against him is a strange twisting of his words to mean he thinks we should go back to swords?

    I’m thinking we need to push Middle Schools and High Schools to require critical reasoning courses.

    1. Derek says:

      Agreed, mainly because I lack confidence in my own critical reasoning.

  8. Wine Guy says:

    There are large differences between de facto and de jure rights these days.

    When has that not been the case? I can’t think of a time/place.

  9. Godel Fishbreath says:

    So protest laws like Marajuana legalization also fall under this interpenetration? Sounds like they would.
    Such laws are a way to negotiate a problem, sometimes.

  10. Craig Alexander says:

    Hi L.E.,

    I want to share a website with you, a tribute to an individual in particular, and do so because he, like you, was dedicated to saving lives in wartime. I had the opportunity to talk to you at the Fantasy convention in Columbus, OH a couple of years ago. I would very much appreciate your perspective on Aaron Zelman and here is the site:

    Hope you are well.


    1. I can appreciate Aaron’s dedication, but I’m afraid I can’t endorse any form of extremism, even when “justified” by principle. There is a difference between arms necessary for self-defense and weapons of war.

      1. Craig Alexander says:

        Thanks for your reply L.E. Extremism is the main problem, period, and I would say that I find fairness in your critiques/analyses. I like to examine all sides (when time permits) and go from there.

        May all be well with you and thanks again.


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