What about the Second Amendment’s drafting history, confusion over which lies at the root of Asner and Weinberger’s essay? Does what we know about that process show that we — along with every major commentator from the period — have made a dreadful historical mistake, and that the Second Amendment is in fact there to protect the individual right to join a state body over which the federal government had control? That, certainly, is the authors’ contention: that the first draft of the amendment — which was rejected — indicates that the final version doesn’t mean what it says.
This approach is a weak one in general. In what other context would we treat what a legislature started with as being more indicative of its will than what it finished with? But it also falls apart when one gets to the substance. As the debates over the Bill of Rights make clear, the question before the framers was not “Should we or shouldn’t we have gun control?” but “How can we ensure that the federal government does not become a tyranny?” Along with a number of other drafters, Madison believed that the enumerated-powers doctrine would suffice to prevent any backsliding, and thus that no Bill of Rights was necessary – the theory being that if the federal government had only limited legal authority, it would have no real chance to exceed it. Madison had a point — indeed, intellectually, his approach was consistent. But, given the speed with which the British Empire’s “salutary neglect” had been replaced by the Declaratory Act, and given the fear among many that the same thing could happen domestically, his argument did not satisfy everyone. And so a compromise was struck: The Constitution would be passed as it was, but it would be swiftly followed by a Bill of Rights, within which would lie a set of mechanisms to which the people might appeal should their national government cross the line.