The search for pure thought

Posted: Sep 27, 2000 12:00 AM
Are you up on the English Declaration of Rights and the arguments that accompanied its formulation? There was old Heneage Finch making the case for the right to own guns, in the event they should be needed to protect not against urban terrorists, but against the Crown, in 1689. If you think that going back that far, when you're trying to decide the constitutionality of gun control laws, is pretty idle stuff, at least you'd agree to jump forward 100 years. And to ask, what did James Madison have in mind when he sponsored the Second Amendment, with its 27 fractious words on which scholars and judges and legislators and editorialists and Charlton Heston chew away, year after year?

Gary Rosen, writing for Commentary magazine (September), lines up the arguments for and against gun control and the data that support these. But he suggests that moderate impositions on gun-owning are, really, defensible even under an individual-rights interpretation of the amendment -- on the grounds that supervisory laws designed to serve a general purpose do not necessarily vitiate specified rights (zoning and construction-permit laws don't seriously undermine the right to private property).

But William Glaberson, in a nifty roundup for The New York Times (Sept. 21), reminds us how acute are the ongoing academic controversies. Consider James Madison. People want desperately to unearth what exactly he had in mind in sponsoring the language of the amendment and averring "the right of the people to keep and bear arms." Focus on this little seedling of academic and judicial controversy:

1. An essayist called Tench Coxe writes a letter to Madison complimenting him on the then-recent adoption of the Bill of Rights.

2. Madison writes back and says, in effect, thanks a lot.

3. Now Mr. Coxe was an ardent believer in the individual-right interpretation of the Second Amendment. So, say some scholars,

4. Doesn't the whole thing suggest that Madison was also?

No, it does not, say the gun controllers. Madison intended nothing more than to thank Tench for writing in and approving of the Bill of Rights. Madison did not think to take the opportunity to say where his version of the Second Amendment and that of Tench Coxe differed.

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.