Op-Ed Columns

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.

What struck me most about the Supreme Court's Second Amendment decision is the irony of a right-wing judge doing what conservatives had always complained about: Making new laws and ignoring the founders' intent.

Has Justice Sam Alito abandoned the shibboleth, the philosophical underpinning of the conservative movement — original intent?

That is a theory that leads these conservative thinkers, through historical research and imagination, to conjure what was on the minds of the great men that sweltering summer of 1787 in Philadelphia.

What was on the minds of the 55 men who Jefferson later called "demigods," among whom were George Washington, Benjamin Franklin, James Madison and young, 29-year-olds Alexander Hamilton and Thomas Pinckney?

Surely they weren't thinking about Chief's Special .45s, Lugers, Glock 18s, Mauser C96s or Walther P99 semi-automatics. Second Amendment rights were the furthest thing from their minds. The Bill of Rights would come later.

Broadly, they were concerned that the Articles of Confederation had not given birth to a nation of high-minded, voluntarily cooperative states; instead, they had created an unruly mob of jealous states. States were struggling into being and in conflict with contiguous states over territory. Congress was meandering from city to city, unable to raise taxes to pay bills.

In short, the experiment with confederacy was a mess. Of more immediate concern was that the Articles provided for the states to have a militia, but said nothing about whether they should be armed.

This was a matter of urgency to the mainly young founding fathers, because only two months before they met in Philadelphia an insurrection had been put down in Massachusetts, which had threatened to inflame the entire state.

The rebels, led by a Revolutionary War officer, Daniel Shays, were mostly small farmers and veterans angered by unpaid war pensions, crushing debt and taxes, which often resulted in debtor's prisons or state property foreclosures.

If Shays' under-armed irregulars had reached the Springfield Armory first on Feb. 3, 1787, it is possible the rebellion might have spread out of control. However, a militia that had been formed as a private army arrived at the depot just before the rebel troops, preventing them from seizing the arms. The better-armed militia was able to defeat Shays' army of the poor.

There was no immediate response to the underlying causes of the rebellion and to citizens' shaken confidence that the state could secure public safety, all of which was a strong impetus for the Constitutional Convention.

If the founders were thinking about militias at all, surely with the example of Shays' rebellion so recent, they would have been thinking that well regulated and armed state militia should replace hastily recruited private armies.

But they had a constitution to build in a contentious, often angry, secret, suffocating Philadelphia summer, which miraculously produced the world's most enduring democracy.

Yet, citizens so newly freed from the yoke of an all-powerful king and parliament were suspicious of the power granted to a few in Washington. James Madison, father of the Constitution, didn't think amendments were necessary, but he sensed that public wariness would doom ratification.

He proposed a Bill of Rights based on George Mason's Virginia Declaration of Rights, which spelled out citizen rights the government cannot breach, which after a historic tussle passed the very first session of Congress.

After that, the Second Amendment pretty much sat there, drawing little interest or controversy. There was a Supreme Court case in 1939, U.S. v. Miller, which focused on the illegality of sawed-off shotguns because they had no use in a militia. A unanimous Court said:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Even the National Rifle Association failed to dispute the Court's ruling or even appear in defense. Since then, the NRA has beheaded the "militia" clause and made the right to bear arms into an ideology.

It is said that the Supreme Court reads newspapers, and it watches TV, too. That goes for conservative justices as well, judges well aware of the manufacturers and merchandisers of arms who make the NRA so powerful.

That is not to say that the gun lobby "leaned on" Justice Alito. I'm sure he applied his interpretation of the amendment under the broad rubric of the Bill of Rights, which was to grant special rights to the people.

Nor can it be said that the opinion will turn the streets of American cities into modern versions of Dodge or Tombstone, any more than they already are. Data doesn't show that citizen possession of weapons creates mayhem.

It is the irony that strikes me: Conservatives discovering new rights after 200 years when precedent and historical evidence point in the opposite direction. Now it's conservatives, not liberals, guilty of judge-made law.