Law as magic

Or: how the Second Amendment teaches progressives to love dead-letter law.

A few months ago, an article on ConservativeHome pointed me towards this episode of the podcast Journey Through Time. Co-hosted by historians David Olusoga and Sarah Churchwell, it purports to expose the “misuse of history” by the National Rifle Association to create a misleading impression of the proper role of firearms in American life. As Churchwell puts it: “it’s a story about mythmaking and its a story about marketing”; Olusoga describes a “present-day reality which has been built on a distortion of history”.

Now I normally ignore American stuff, because as I’ve written elsewhere America-brain is a curse on the British political classes, and especially gun stuff, because there is absolutely no point trying to discuss gun policy with Brits.

But this is interesting because it’s also, necessarily, a debate about how to properly interpret the Second Amendment. And as we discovered last time, interpretation is fun! Especially so in this case, because the Second Amendment is a rare example of a codified right which has been captured by non-progressives, which in turn pushes progressives into extremely novel interpretive territory.

So today we’re going to do a few things. First, have a look at what Olusoga and Churchwell says the Second Amendment ‘really means’, and their reasoning. Second, have a go at using the methods we used to unpack the Malthouse Principles to see if we can come up with another reasonable interpretation. Third, explain why codification reduces fundamentally political disputes to disingenuous exchanges of arcana, and why that’s bad.

‘A well-regulated militia’ (with smoothbore muskets)

You’ve never seen originalism like this before

I’m not going to repeat everything in the podcast - it’s free, and well worth a listen. But before we dive in, let’s have our first look at the actual text of the Second Amendment:

“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.”

Churchwell’s argument is very simple: that the Second Amendment refers to the bearing of arms (a military term which does not apply to weapons for e.g. hunting) in the context of well-regulated militias, because the American revolutionaries were wary of having a national army. It did not refer to a general right for private individuals to keep arms privately.

Churchwell further argues that America followed a pattern of gradually restricting firearms, which she says is likely normal in other countries, and that modern US gun culture is only about 30 years old. (The National Rifle Association was also originally founded as an organisation to promote “gun safety and marksmanship”, apparently.)

Olusuga agrees with the point about other countries gradually restricting weapons as societies urbanised, saying it “happens everywhere”. (We’ll return to whether this is actually true.) He also repeatedly emphasises that the Founders wrote the Constitution in the era of smoothbore muskets, and could not have imagined the sort of weaponry available today.

Finally, he likewise repeatedly emphasises that the bearing of arms in the early United States "clearly relates to obligations, not rights”, i.e. a civic duty to perform armed service; in support of this claim, Churchwell cite an original version of the Second Amendment which included a provision that people with religious convictions should not be obliged to bear arms.

This is very interesting stuff, because it’s a sort of analysis one very rarely sees applied by progressives to a codified right. Accepting for a moment all the historical claims, the core of the argument here is that what matters is what the Founders originally intended the Second Amendment to mean - and in Olusoga’s case, the limits on what they could possibly have imagined too.

Now one does not necessarily have to accept all the historical claims, by any means. The idea that the UK was doing any sort of systematic crackdown on firearms before the 20th Century is strongly challenged by Joyce Lee Malcolm’s excellent Guns and Violence: the English Experience; indeed, any firearm produced before 1916 can still be owned and traded without licence in Britain today. Churchwell herself admits that the final draft of the Second Amendment is less clear than James Madison’s original proposal, which suggests the actual intent behind the final text is perhaps not actually the same.

But even so, this is not how codified rights are generally interpreted by progressives. One could scarcely discover in the Constitution a federal right to abortion, for example, if what mattered was the original intention of Founders, as evidenced by a couple of centuries of historical evidence to the contrary. Or if we to apply it in a context for familiar to British readers: when the United Kingdom signed up to the European Convention on Human Rights, it practised both the capital and corporal punishment of criminals. Under the Churchwell-Olusoga doctrine, these would thus necessarily be compliant with what the Convention rights actually mean.

Olusoga’s repeated emphasis that the Second Amendment refers to muskets has more radical implications still; if applied elsewhere, it means that any right to, to choose a hypothetical example, healthcare inferred by Strasbourg from the Convention rights could apply only to treatments and technologies available in 1948.

Exciting stuff. But is the Second Amendment really so “very clear” as Churchwell makes out?

Interpreting the Second Amendment

Militias are present, but not involved

To have our own crack at divining the meaning of the Second Amendment, we’re going to apply the same classical doctrine of interpretation to which I referred in my previous post - that is, we’re going to assume that the specific contents and construction of it are important. So let’s have a look again at the actual text:

If you approach this sentence without pre-existing intent to interpret it to mean one thing or another, it is simply an extremely odd bit of writing. Even allowing for the fact that the Founders loved their commas, the staccato delivery of the Second Amendment is unusual, and the first and third don’t seem to do anything. If one removes them, one gets the following:

Now our golden rule is that the specifics are important. But this does not seem to change the meaning of the sentence at all, and it makes it slightly easier to read, not least because it divides it cleanly into its two actual sections. We have the bit about the importance of a well-regulated militia to the security of a free state, the bit about the right of the people to bear arms, and a clearer picture of how they connect, or don’t.

Would you, if you weren’t trying to, naturally interpret this sentence to mean that people have the right to bear arms in a well-regulated militia? I suspect not, because it doesn’t say that. Such a clause would be simple enough to draft:

“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms in militia service shall not be infringed.”

The clause above does quite explicitly what Churchwell says the Second Amendment is meant to do. The Founders were, to a man, more literate than I, or you, or likely anyone reading this. We can be certain that ‘in’ and ‘service’, the devices of our alchemy above, were in their vocabulary.

Yet they did not write it. If you believe the supposed intent of the Founders is important when divining the meaning of the Second Amendment, this matters. (Remember, part of the specifics being important is that what was not written is also important.) If you don’t, what matters is that it simply does not, as a sentence, say what our imagined alternative says.

But we cannot simply dispose of the first clause of the Second Amendment either - it is, after all, there. So the task becomes to work out what it is doing there. On which note, here is how Merriam-Webster defines the difference between essential and non-essential clauses:

Essential clauses modify key words and are important to the main point of a sentence. Nonessential clauses provide information that, while interesting, does not change the main point of a sentence. Nonessential clauses are offset by punctuation such as commas or parentheses to indicate the clause as an aside.

As is made clearer when the two extraneous commas are excised¹, the section on the well-regulated militia looks like a good candidate for being a non-essential clause, i.e. providing “information that, while interesting, does not change the main point of a sentence”. This is because if it as treated like this, the construction of the Second Amendment makes sense.

Specifically, it makes sense if the first part is interpreted as a justification for the right. This could be read a couple of ways. The first, more in line with Olusoga and Churchwell’s thinking, is that the people should be allowed to bear arms so as to have an armed population to call up for militia service.

But there is another, more consonant with the National Rifle Association’s view: that the people should be allowed to bear arms as a counterweight to the militia. The logic is simple enough: an independent state requires a military, but a military can be readily turned towards domestic tyranny, especially against an unarmed populace. In this context, the bit about the militia being “well-regulated” takes on a different character, too. If this construction seems counter-intuitive, consider the following:

“A well-trained tiger being necessary to the security of the premises, the right of the residents to keep and bear arms shall not be infringed.”

Were you presented with this sentence, I doubt it would be remotely confusing - at least in terms of its construction and meaning, if not the actual decisions to employ security tigers or to give residents unrestricted access to firearms. It is only superficially different if we substitute ‘well-regulated militia’ for ‘well-trained tiger’.

And whichever interpretation chosen, the sentence is still constructed so as to present either as context and justification for the right, rather than a restriction on it. Either also puts paid to the idea that the Second Amendment only applies to the technology of its own era: whether the object is to reinforce the military or buttress against it, contemporary arms are essential.

Thus far, we have focused on analysing the construction of the Second Amendment, and in so doing found an interpretation (or pool of similar interpretations) which, unlike the claim that it applies only to militia service, seems to conform with what is actually written, and thus avoids the need to claim that the Founders meant something they didn’t write.

But of course Olusoga and Churchwell don’t rely purely on textual analysis, but broader context. Could that be adduced in favour of our interpretation above? Short answer: yes.

Whilst it is true that firearms laws in the US have fluctuated over time, at no point does the Second Amendment ever seem to have applied solely to weapons held in centralised depots for official militias (and the specific right of the people to ‘keep’ arms would seem to militate especially strongly against such an interpretation). Churchwell claims that modern American gun culture is an invention of the past 30 years; yet here is a scene from Terminator (1984) in which our villain visits a typical gun store - a California gun store, no less - and encounters what looks an awful lot like modern American gun culture (killer robots and pulse rifles notwithstanding) a full decade before its meant to have started:

Moreover, the idea that the Second Amendment refers to service in a regulated militia is also just odd. Governments do not need to pass confusingly-worded rights to bear arms in order to operate militaries, even mass-conscription militaries; and for all that Olusoga emphasises that the Founders seem to have been talking about obligations, the Second Amendment uses the word ‘right’, is situated in a document called the Bill of Rights, and enumerated alongside other rights all aimed at placing curbs on state power over the individual.

Now odd does not mean impossible: England, from whence the United States derived much of its law, treated the right to bear arms and the right to form a militia separately; the right to form a private militia was curtailed by the Militia Act 1661 (the restriction was, of course, meant to be temporary) whilst, as Malcolm illustrates, our firearms laws remained extremely liberal (up to the point where if you shot someone trying to force their way into your home, a judge would throw it out) until well into the 20th Century. But again, the Second Amendment isn’t actually constructed as a right to a militia, and the Founders had it within their power to frame that right had they wished so to do.

I’ve done my best to illustrate how the Second Amendment can be fairly interpreted in a manner contrary to that posited by Olusoga and Churchwell, even operating in their small-c conservative interpretive framework. But interesting as that hopefully was, it really just illustrates the real problem with codification: that it distorts politics by transmuting what ought to be political and philosophical arguments, held in the public square, into arcane bouts of interpretive shadow-boxing staged in privileged arenas.

Politics by other means

Law as magic

The conceit of a codified constitution (whether that be a de jure national one or a de facto international one constituted on the same logic, such as the European Convention of Human Rights) is that it puts all the rules in one place and makes them easily legible - in the case of a national constitution, that you can hold the constitution in your hand.

Yet as the above illustrates, this is not and can never be the case. The US Constitution states that you have a right to bear arms, but even setting aside any debate about what it really means or ought to mean, the actual legal fact of what it means, for you personally, will vary a lot depending on which state you’re in and in what time period you’re there. None of that information is contained in the (capital-C) Constitution; to determine the actual nature of your right to bear arms you must refer not only to federal and state law, and to relevant court judgments, but also have an eye for institutional and procedural factors.

By way of an example of the last point: current US law requires that any new privately-held machine gun must be registered with the Machine Gun Office for a $500 fee. Ronald Reagan closed the Machine Gun Office; as a result, anyone wishing to own one is restricted, de facto, to an already-registered weapon which enjoys grandfather privileges. But no single statute makes this so: it is the product of the interaction of statute and administrative machinery.

This is why I maintain that every nation really has what the United Kingdom formally has: an uncodified constitution, comprising not merely statutes but its legal precedents, the architecture and operation of its institutions, cultural norms, et al. (To picture the relationship between this constitution and a capital-C Constitution, imagine the former as a pattern on a sheet, and the latter as a lead ball placed on the sheet. The ball will distort the pattern around it, and likely end up with the pattern centred on it - but it is not the pattern.)

The advantage of a formally uncodified constitution is that its structure acknowledges this. Under the British constitution, the political and democratic element has the ultimate power to determine what laws we have (even if recent generations of politicians have come to believe, or affect to believe, otherwise). As such, anybody opposed to a particular law, either in concept or in practice, can organise politically to change it, and engage in an honest political debate.

Codification, or entrenchment, breaks this equilibrium. In theory, it places certain things beyond the realm of ordinary political contestation; in reality, it simply shifts political struggle out of the formal democratic arena, theoretically if often imperfectly open to all, into the privileged arena of the courts, full access to which requires either legal training or the money to employ it.

That rights or principles theoretically agreed as beyond ordinary dispute will nonetheless remain ordinarily disputed is inevitable, for a few reasons. The first is that because entrenched provisions are not usually subject to regular infusions of democratic consent, they over time become dictates from the past imposed upon the present, and few in the present really feel the need to arrogate to the past such a privilege. The second is that a superficially simple one- or two-sentence right that commands wide agreement inexorably becomes a very granular millions-of-words right as it is tested, defined, and refined in the courts, and two people who agree (or think they agree) on the top-level version may discover that they differ on very important specifics.

Finally, and the point I’m really driving at here, because one can legally entrench words but not the meaning of words. If a legal right is reinterpreted, then its entrenched power takes immediately a new shape, sometimes a dramatically different shape.

This blurs the line of the proper boundaries of expertise in a way which privileges lawyers even outwith the formal arena of the courtroom, because it allows what are properly ‘ought’ questions to be presented as technical ‘is’ questions. This can be hard to spot, but becomes evident when a supposedly empirical argument obviously begs the question, in the formal sense, such as the idea that whether or not the UK Supreme Court can curtail parliamentary sovereignty could be empirically determined by study of the UKSC’s own output.

Entrenchment does not protect the ‘true’ or ‘real’ meaning of a clause or provision, as that does not exist; rather, it bestows on a clause or provision the power to confer the privileges of entrenchment on whatever it is interpreted to mean. It becomes a sort of programmable magic spell, an instrument of privileged power, a means by which a section of society can insulate its preferences against the rest.² (The paradox of entrenchment is that it is democratically legitimate only and precisely to the extent that it is unnecessary; a real majority consensus doesn’t need such protection.)

Even beyond that, constitutional systems with a heavily entrenched component, typically codified rights, end up with ever more political activity - and given the logic of codification, often on the highest and most important topics - devolving into proxy battles over the meaning of legally-privileged sentences. Defenders of a status quo are afforded an easy motte-and-bailey, evading debate over the actual, granular operation of a right by retreating behind the simpler, invariably nobler-seeming, headline right, and the general shape of public discourse comes to resemble that of religious schism, with hallowed clauses interpreted and reinterpreted, read broadly or narrowly, in whichever manner would best effect the arguer’s actual moral political preferences.³

This is especially obvious whenever someone applies wildly inconsistent interpretive standards, such as, in our example above, progressives who normally favour a liberal and expansive interpretation of rights turning into the driest of dead-letter legalists, or frozen-in-aspic historical contextualists, when it comes to the Second Amendment.

1. I honestly can’t see any meaning conferred by them which makes them anything other than superfluous, or which changes the analysis above. If you can think of one, tell me!

2. I develop both the argument and the metaphor at greater length, and in relation to a British constitutional example this time, in my essay Conjuring the Constitution: Bureaucratic Metastasis and the Ministerial Code, published by Policy Exchange in March 2025 as part of their collection, Strengthening the Political Constitution. You can read it here.

3. All of this is also true, with more problems besides, when it comes to treaties, in light of the modern tendency for treaties to govern not merely relations between states but their internal conduct. But that is a matter for another post.