"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."
Most people instantly recognize these words as the second amendment to the United States Constitution. Agreement generally stops there. Right of "the people"? Does that mean individual persons or people collectively? Does "bear arms" mean gun ownership, or something else?
What most people don’t know – and are surprised to learn – is that the second amendment, as it was written and presented to the First Congress for ratification, originally had another clause beyond those twenty-seven familiar words. The extra clause was controversial, though, and it was deleted from the final amendment during Congressional debate. But the text of that deleted clause turns out to be important because it gives us key insights into the mind of James Madison, who wrote it. Reading the deleted clause, we learn something about the meaning of those words as Madison intended them, and as Congress understood them.
The deleted clause is this:
"but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
This so-called conscientious objector clause had its root in a common practice during the Revolutionary War. In those days, local militias drew their manpower from the adult men of a township. All adult men were expected, and often required, to participate. But some areas, particularly Pennsylvania, had sizable numbers of Quakers and adherents to similar religious denominations that practiced strict pacifism.
In order to fulfill their legal obligation to serve in the militia without violating their religious convictions to pacifism, it was not uncommon for a Quaker to pay another man, a non-Quaker who had already fulfilled his military obligation, to serve in the pacifist’s place. Some states did not allow this practice, however, under the theory that it was morally unacceptable to pay another person to (perhaps) die for you. Other states took the opposite view, since it seemed clear that the state had no business forcing a person into a particular form of religious belief. Beyond that, a confirmed pacifist would be unlikely to make an effective soldier, even if he could be forced to carry a gun.
This was the background against which Madison wrote the second amendment: as a logical extension of the religious freedom enshrined in the first amendment. The first amendment said that the state couldn’t tell you what faith to believe. The second amendment, as originally written, said that when faith and the state required opposite actions from an individual, faith trumps government.
As one might expect, this was (and is) a hotly debatable proposition, and in 1789 it was hotly debated. In fact, in the record of the First Congress’s debate over the second amendment, the conscientious objector clause was the only part of the proposal that drew any comment at all. Gun control wasn’t even on the horizon for the framers. They were interested in the power of the state versus individual rights, and where to draw the line between them.
Ultimately, the conscientious objector clause went down to defeat. The implication was that the state could, if it so chose, compel military service – even for those who might have religious scruples against serving. In deleting the clause, the framers came down in favor of the power of the state, and against the rights of the individual.
There are at least two lessons that we inhabitants of the 21st century can draw from this episode. First, it is clear from reading the conscientious objector clause that for Madison and the framers, the phrases "bearing arms" and "military service" were essentially synonymous. They drew no distinction between the two, and saw no need to do so.
Second, the framers did not view individual rights as sacrosanct. They understood that individual rights carry individual responsibilities, and that these cannot be disentangled from each other. They understood that citizens owe something to their government, and this obligation cannot be defaulted upon, even under the cover of religious belief. In deciding where the line between the powers of government and the rights of individuals should be drawn, the framers were putting military service, or as they called it "bearing arms," firmly on the governmental side of the line.
What does this all mean in light of Scalia's decision? It means this:
Scalia was dead wrong.