What most recently triggered the debate was a decision by Judge Sam R. Cummings, a federal district court judge in Texas who last year dismissed a gun-possession charge against a doctor on the grounds that the law under which he was being pursued was unconstitutional. The judge wrote: "A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right."
That was the general view of the question in the 1990s, but it is being vigorously challenged by scholars on the other side. Now here is a question that begs the others, but is none the less arresting.
There is every reason to care deeply and enduringly to know whether, let us say, Christ really did multiply the loaves and the fishes. If he didn't, and if the skeptical inquiry led to reinterpreting the happenings of Easter Sunday, then life and the understanding of life would be very different. But how does such reverential attention get attached to what James Madison thought those 27 words meant, over against what we understand them to mean?
The central idea of the Bill of Rights is that Congress may not do certain things, having to do with religion, free speech, the right to assemble, the right to protest -- and the right to keep arms. Myriad challenges to the elucidation of these rights have been made in the two centuries since the Bill of Rights came into being. We accept it as a working arrangement that the courts will continue to parse the meaning of the Founders.
But this becomes something of a historical game. And it is a game that invites ideological opportunism. It is preposterous to believe that the men who consecrated the republic would have objected to common prayer in public high schools, but that's what it has come down to, as the exegetes hack away, egged on by politically active lobbies.
Suppose that, the day after tomorrow, someone were to discover a letter from James Madison that had sat all these years in an attic. It is addressed to Tench Coxe. It reads: "Dear Mr. Coxe: I neglected to add, in my letter to you last week, that I sympathize heartily with your own views about the right to keep arms, which is why I endorsed the language of the Second Amendment."
Where would the anti-gun people go then? They'd find a way. This is the resourceful age that came up with Roe vs. Wade, and Everson, and McCollum. They'd find a way to transcend Madison and that old firebrand, Tench Coxe.