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OPINION | KENNETH WEBER: Original intent

What did our founders think?

For over 200 years, U.S. courts viewed the Second Amendment's "right to keep and bear arms" as being linked to militia service. That changed in 2008 when Justice Antonin Scalia's majority opinion in D.C. v. Heller determined that the right of the people delegated in the Second Amendment "unambiguously refers to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body."

Justice Scalia viewed himself as an originalist/textualist--the view that the Constitution means no more or less than what it meant to those who originally wrote and ratified it. But did his decision reflect that view?

On June 8, 1789, James Madison introduced his proposed amendments to the Constitution to the 1st U.S. Congress. On Aug. 17, 1789, debate began on the proposal which would become our Second Amendment.

The proposal stated: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

The only argument against any wording in this proposal by the House was with the religious objection to bearing arms. Rep. Elbridge Gerry of Massachusetts thought that with this clause the government would have the power to declare who is religiously scrupulous and prevent them from carrying arms. Joining in on this discussion were Reps. Egbert Benson of New York, Michael Stone and Joshua Seney of Maryland, John Vining of Delaware, Roger Sherman of Connecticut, James Jackson of Georgia, and William Smith of South Carolina.

On Aug. 21, 1789, the House resumed talks on the proposed amendment. Rep. Thomas Scott of Pennsylvania thought that with the provision "such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with further difficulties, for a militia can never be depended upon." Rep. Elias Boudinot of New Jersey believed that "by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."

At the conclusion of the debate, the only change made to Madison's proposal was the addition of "in person" to the end of the clause.

It is clear from the discussion in the House of Representatives that they considered the right to bear arms provided by this amendment to be linked to militia service. There is no record of the Senate meetings, which were held in private until 1795.

Perhaps if Justice Scalia would have referenced "The Library of Congress, U.S. Congressional Documents and Debates, 1774-1875," he would have issued a decision that reflected what our founding fathers' generation meant. However, he did not, and apparently made a decision based on a political agenda.


Kenneth Weber lives in Greenbrier.

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