Clue for the Court?

As the Supreme Court gets down to work on the big question of the Second Amendment, let us pause to consider the constitution of Massachusetts. One of its magnificent peculiarities is that its bill of rights is written right into the main document. There are some 30 of these articles, ending with the famous formulation in respect of separated powers. It is article 17 that concerns guns. "The people," it says, "have a right to keep and to bear arms for the common defence." There is another sentence about how armies mayn't be maintained without the consent of the legislature and, in any event, shall always be held "in an exact subordination" to civil authority.

Is this auspicious for advocates of gun control more generally or is it inauspicious? We were pondering that question because the Constitution of Massachusetts is widely admired, including by such sages as The Great Scalia. On the one hand, the Massachusetts framers put in plainer language than the American framers the purpose for which the right to keep and bear is being marked. To the degree that the justices might go looking for the state of mind of the founding era, they might cock an eye at this language.

On the other hand, it may be that the justices will look at the Massachusetts language and decide it's evidence that if the American framers had wanted to state unambiguously the purpose of the right to keep and bear, they could have done so. And they may conclude therefore, as the District of Columbia Circuit concluded, that if the founders of America had wanted to protect the rights not of the people but of the militias, they'd have said so in plain language. It is but one of the questions we found ourselves thinking about, as, over a wonderful holiday of thanksgiving, our thoughts wandered the founding era.