Framers' intent still hotly debated

While the topic is clear, the amendment is fraught with ambiguity and has been subject to conflicting interpretations and often acrimonious debate.

The sharp conflicts are everyday discussion topics, as gun-control advocates claim that firearms have a pivotal role in societal violence, and firearm enthusiasts clamor that restricting guns tramps on the intent and spirit of the Second Amendment.

One of the strengths of the Constitution is its inherent flexibility. The framers understood that the document would be modified over time if it was to remain relevant. A Constitution that embraced precise concepts of the 18th century could not necessarily be applicable to a society dependent on cell phones and Blackberrys. This does not make life easy for citizens or jurists, and brings to mind Winston Churchill's famous observation that democracy is a terrible system of government, but all the others are worse.

The murky language of the Second Amendment has created a battle line between both sides of the packing-heat or pack-them-away debate.

"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.

The amendment is one sentence comprising two clauses, which are the main cause of conflict.

The opening clause states: "A well regulated militia, being necessary to the security of a free State." No other amendment has a similar clause, which seems to ascribe its purpose, according to Levinson.

Gun control groups consider the clause precise and view the amendment as a collective right of the states to form militias.

The rest of the amendment's sentence, "the right of the people to keep and bear arms, shall not be infringed," loads the interpretation of pro-gun groups' belief that the Second Amendment grants citizens an absolute right to own firearms.

The word "militia" is a stumbling point. Written in a time when the tyranny of King George III was still a raw memory, it could be viewed as a right to arm military forces. However, in the 18th century, most adult males were part of a militia, so perhaps the framers used the word to imply everyman.

The Supreme Court has not fully interpreted the Second Amendment, but courts have agreed that it allows reasonable firearm restrictions.

The furious debate around the Second Amendment has prompted groups like U.S. Constitution Online (www. usconstitution.net) to propose replacing the Second Amendment with "a truer representation of how our society views our freedom to bear arms," by removing "militia" and focusing the amendment to ensure the "right of the people to keep arms reasonable for hunting, sport, collecting and personal defense."

As our nation grapples with the issue, we posed questions surrounding the Second Amendment to two recognized Tucson attorneys for whom the Second Amendment is integral to their practice:

Elliot A. Glicksman, who frequently pursues civil remedies for victims of crimes and represents crime victims, told us that "in a perfect world, guns would be treated like cars; people who own guns would have to take a proficiency test."

David T. Hardy, a federal firearms law authority, has written law review articles and a book, "Origins and Development of the Second Amendment: A Sourcebook," and co-authored "Michael Moore Is A Big Fat Stupid White Man" and "This Is Not an Assault" about the siege on the Branch Davidian compound outside Waco, Texas.

Star: Does the Second Amendment protect the individual's unlimited right to own a gun or other weapons? Or is it a collective right of the states and government to maintain militias?

Hardy: Modern scholarship accepts that the Second Amendment was meant to protect an individual right. Perhaps the best historical evidence is a 1789 newspaper explanation of the Bill of Rights, a comprehensive contemporary explanation, that refers to protecting citizens' "private arms." James Madison, drafter of the Bill of Rights, wrote a thank you letter to the author. Further, when the first Senate considered the Bill of Rights, there was a motion to make it a right to bear arms "for the common defense." The Senate voted down the idea.

Madison was trying to allay the fears of two groups. One feared that Congress would neglect the militia; the other feared that Congress might try to disarm individuals. Madison had to resolve both fears. This is why the amendment has two clauses.

Glicksman: The only U.S. Supreme Court case I'm aware of is "U.S. v. Miller," which held that it was a collective, not an individual, right.

Star: According to the Brady Center to Prevent Gun Violence, in U.S. v. Miller (1939), "the High Court wrote that the 'obvious purpose' of the Second Amendment was 'to assure the continuation and render possible the effectiveness' of the state militia. The Court added that the Amendment 'must be interpreted and applied with that end in view.' "

Since Miller, the Supreme Court has addressed the Second Amendment in two cases: In Burton v. Sills, (1969), the Court upheld New Jersey's strict gun-control law, finding the appeal failed to present a "substantial federal question." And in Lewis v. United States (1980), the Court upheld the federal law banning felons from possessing guns, finding no "constitutionally protected liberties" infringed by the federal law, according to the Brady Center."

Star: Bazookas and missiles are "arms." Does the Second Amendment protect an individual's right to own them? Glicksman: Good question. Let's go one further. How about nuclear weapons? Why should I, a legitimate nuclear weapons collector, be punished because terrorists misuse them. Punish the evildoer. Remember, nuclear weapons don't kill people. Terrorists misusing nuclear weapons kill people.

Hardy: All rights have rational limits. We can recognize "freedom of speech" without having to protect blackmail and threatening phone calls.

There are various theories as to how to establish limits. Akhil Amar, a professor at Yale Law School, suggested that, since the original purpose was to allow the people to deter tyranny, a weapon that allows one person to become a tyrant through terror would not be protected.

I like to compare it to regulation of the press, which was known to the Bill of Rights framers, versus regulation of electronic broadcasting, which they could not foresee, would require licensing of frequencies to work. The framers could foresee rifles and pistols but not special problems posed by antiaircraft missiles or nuclear bombs.

Star: Is the regulation of gun ownership, such as licensing and registration, a violation of the Second Amendment? Why or why not?

Hardy: It depends upon the regulation. What the framers clearly meant to take off the table is confiscation or prohibition. I see registration and licensing as facilitating that. It's hard to see how registration itself prevents crime. Even if a criminal did register his gun, he is unlikely to leave it with the victim. Glicksman: The First Amendment is not absolute. Some speech — yelling fire in a crowded theater — is not protected.

Should the Second Amendment be absolute? It can't be. Or else we couldn't prohibit felons from possessing weapons and I could take a gun with me on a plane.

Star: With the right to own a firearm, is a there an implicit responsibility to safely handle the firearm? Hardy: Everyone who has a gun and was not trained how to safely use it should obtain such training now. Every firearm accident that I have ever seen involved violation of not one, but several, simple safety rules. Gun safety is far simpler than automobile safety, but both require knowledge.

Star: A woman who carries a gun in her purse is required to have a concealed weapon permit. A person wearing a sidearm may be asked not to enter a place of business because of the sidearm. Are those restrictions on Second Amendment rights?

Hardy: The permit requirement is a restriction — courts have upheld those because it's a very moderate restriction; it doesn't restrict keeping, and only one form of bearing. A private business on the other hand isn't bound by the Bill of Rights.

Glicksman: Limiting people from having weapons in certain places like a bar or on a plane have always been upheld.

The Tucson City Council banned guns from city parks a number of years ago. The ordinance was challenged ("City of Tucson v. Rineer," 1998), but it was not challenged on Second Amendment grounds. Instead, it was challenged on the claim that the city couldn't regulate guns and on the amendment in the Arizona Constitution, not the U.S. Constitution. The City of Tucson won. The court held that it could ban guns from parks. Subsequently, the state Legislature enacted a statute that said only the state, and not individual cities, could regulate guns. If the Second Amendment grants an individual unfettered right to bear arms, why wasn't this ordinance challenged on Second Amendment grounds?

Star: Is there anything else you feel that our readers should know about the Second Amendment?

Hardy: One fascinating aspect of the American right to arms is not the Second but the 14th Amendment (1868). The original Bill of Rights only restricted the federal government (some states, for example, had established churches into the 1830s).

After the Civil War, Congress proposed, and the people ratified, the 14th Amendment, which forbade States to infringe the "privileges and immunities" of U.S. citizenship.

The congressional debates make it clear that a motivating factor was that the former Confederate states had passed the "Black Codes," which forbade blacks to own guns, and were disarming black Union veterans to make them vulnerable to Ku Klux Klan terror.

Yale professor Amar said that the Second Amendment vision was that "when guns are outlawed, only the government will have guns," and the 14th Amendment vision was "when guns are outlawed, only the Klan will have guns."

He sees the Second Amendment as protecting an individual but political right to resist governmental tyranny and the 14th Amendment as making this the "quintessential individual right," the right to defend one's home against criminal attack.

It's sometimes argued that we have a changing constitution. I find this difficult to accept: Why else would amending it require a super majority (two-thirds of Congress and three-fourth of the states)?

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.

Editor's note: The United States Constitution lays down the structure of the government and separates the powers among three distinct branches— the Legislative, Executive and Judicial. The landmark document was signed Sept. 17, 1787. Subsequently, the Bill of Rights, the first 10 amendments to the Constitution, went into effect Dec. 15, 1791.

The Constitution imposes a series of checks and balances among the branches of government. The Bill of Rights guarantees that government cannot take away rights from its citizens and protects citizens from excessive government power.

On May 21, we presented a discussion on the First Amendment. Based on positive reader reaction to that story and suggestions that we continue civics discussions, we'll be exploring the entire Bill of Rights in the next few weeks. Read the May 21 article at www.azstarnet.com/opinion.

Editorial Writer Sam Negri contributed to this commentary. Contact Editorial Page Editor Ann Brown at 574-4235 or annbrown@azstarnet.com.

English v. Texas was also wrong. The weapons of a "militiamen" are any weapon, right down to his bare fists, that said militiamen could use in his defense, that of another, or of the Nation in an official capacity. Placing a limit on the definition of "arms" is a slippery slope whereby even todays State CCW laws, and lack of open carry provison, restrict a particularlly useful "militia weapon" re: handguns.

E v. TX is wrong as it restricts a common mans most humble arms and the NFA of '34 is wrong as it unConstitutionally does a similar "infringement" at the Federal level.

tpaine, to state it as simply as I can for you; the reality that the National Firearms Act is enforced makes it a fact that this is the current interpretation of the 2nd Amendment that holds up in the courts. If it's not, then the law would not be enforced. And Guncite.com was also commenting upon the fact of how this law is enforced today. Niether Guncite.com nor I were defending "unconstitutional infringements" and I resent that you have misstated my views on this.

I have stated in several posts, most recently my #238 above, that there is a logical constitutional argument to be made that the National Firearms Act violates the 2nd Amendment's prohibition against the regulation of individual gun ownership and I have given two pieces of evidence to support this; the ruling in English v Texas (see my #s 236 & 238 above), which set an important precedent that was evidently ignored in the passage of the National Firearms Act, and the distinct meaning of the use of the word "regulated" by the framers of the constitution (see my #233 above) which only referred to the right of Congress to "discipline" or "direct" the militia as a "collective unit," not to the right of Congress to regulate individual gun ownership, which I also make clear is a power denied them by the 2nd Amendment in my post #233.

And I remain comfortable knowing that my neighbor cannot possess a 105 mm cannon in his front yard. That follows from the ad absurdum and ad horribilis application of jurisprudential reasoning, not from some ignorance of the 2nd Amendment's real meaning.

"Do you contend that the state of Texas can "control the use" of arms such as "dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives," by enacting prohibitions on possession?"

It doesn't matter what I contend the State of Texas can or cannot do. What matters is what the laws on the books actually say the State of Texas can or cannot do.

According to English v Texas the State of Texas can control the concealed use of these weapons. That is what the law is. I made no normative comment about the wisdom of the ruling. I introduced the decision, which IS a part of case law, for its strict declaration of militia arms as establishing a precedent that the National Firearms Act overturned by legislation, which is an approach not legal in the American system of jurisprudence, which thus calls into question the constitutionality of the National Firearms Act.

So the proper question to ask me if you wish to contest my posting of the information in English v Texas is whether you think I got it wrong in stating, as I pointedly did, that the National Firearms Act may be considered unconstitutional for ignoring the precedent in this case. Do you think I got that wrong? If "yes," then say so.

The Court did not find that *they* had no such evidence, but rather that the original court in Arkansas did not, and thus should not have ruled that the keeping and bearing of such a weapon was protected by the second amendment.

The lower court should not have made such a ruling unless or until such evidence was presented. Had Layton gone to trial, he would have been allowed to present such evidence. How many other cases has the government "won" and then decided to plea-bargain for? Miller seems unique in that regard.

If the government is forbidden from taxing Second-Amendment "Arms" (since taxation could be used as a means of curtailing ownership), interpreting the term "Arms" too expansively would forbid the government from taxing much of anything. After all, there are very few artifacts that could not be used as weapons if absolutely necessary. I would suggest that the term be limited to items that might be reasonably intended for use as weapons for personal or collective defense.

You continue to contend that fully automatic firearms, artillery pieces, tanks, grenades, rocket launchers, flame throwers, etc -- can be outright prohibited.

-- Are you aware that many people owned these objects perfectly legally prior to 1934 and still do? Are you aware that while reasonable regulations can be written to control use, there is no constitutional justification for total prohibitions on possession?

Hell, even nuclear, chemical & biological materials are possessed by individuals & companies.

I am very comfortable that my neighbor cannot go out and purchase a 105 mm cannon and set it up in his front yard.

Why does this 'comfort' you? Your re-enactor neighbor could [in many rural areas] set up a functional &'legal' muzzle loading cannon or mortar capable of doing massive damage far beyond his own property, and few rational people would blink an eye.

As Warthog said:
"--- whether the modern legislature has managed to pass unConstitutional abominations in a Court system that ignores the plain language and intent of the Constitution --" is not the question.

Why are you more 'comfortable' disarming your neighbor, [and why do you think you have the power to do so] -- that is the question.

I remain comfortable knowing that my neighbor cannot possess a 105 mm cannon in his front yard.

You cannot, or will not, answer the question. -- Why do you think you have the power to disarm your neighbor?

". . . You cannot, or will not, answer the question. -- Why do you think you have the power to disarm your neighbor?"

Okay, I'll answer this one pointedly for you.

Under the rules of jurisprudential reasoning known as ad absurdum or ad horribilis it is legal to curtail the possession of such weapons by an individual as can be deemed by sensible thinking that it is "absurd" or "horrible" to contemplate that they have a legitimate use by the individual and therefore their right to keep and bear these arms is not covered by the 2nd Amendment.

Can you imagine the Los Angeles Police going into action against the Bloods and the Crips when the latter have 105 mm cannon, rocket-propelled grenades, flamethrowers, and 80 mm howitzers? Under the logic that no one has the right to disarm them of these weapons, the Bloods and Crips could legally possess them. That is both absurd and horrible to contemplate and therefore the legal enforcement of laws preventing them from possessing such weapons is constitutional.

To argue otherwise would be suicide for a civilized society. And I agree with Justice Oliver Wendell Holmes assertion that "the Constitution is not a suicide pact."

StJacques claimed:

In English v Texas the Texas Supreme Court held that weapons such as "dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives, belong to no military vocabulary" and affirmed the right of the State of Texas to control their use, --

Do you contend that the state of Texas can "control the use" of arms such as "dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives," by enacting prohibitions on possession?

It doesn't matter what I contend the State of Texas can or cannot do.

Of course it does. We are all bound to uphold the US Constitution as our supreme law. Do you deny that?

What matters is what the laws on the books actually say the State of Texas can or cannot do.

And Article VI, the 2nd, 10th & 14th all say that the State of Texas cannot ignore the US Constitution.. Correct?

According to English v Texas the State of Texas can control the concealed use of these weapons. That is what the law is. I made no normative comment about the wisdom of the ruling.

You refuse to make a clear statement on whether prohibitions of such arms are Constitutional, in your opinion.

Thank you.

"You refuse to make a clear statement on whether prohibitions of such arms are Constitutional, in your opinion."

My direct answer to this question has to be "no."

I probably have problems with some of these items listed, especially since I have a couple of Gurkha knives from India that make a Bowie knife look like a toothpick. I had one such knife I attempted to bring back from India in my "checked" luggage confiscated by U.S. Customs on my last return from that country and they ended up bringing me into a room to undergo significant quesitoning -- and since they took down all matters about my identity such as my Passport Number, Louisiana Driver's License Number, etc. -- I assume they ran a check on me while I waited.

So the answer is "no," I am not comfortable with the list developed in the English v Texas ruling.

You seem to insist that I cannot distinguish in my posts between what the law is or how the law actually is interpreted and what the law should be or how it should be interpreted, demanding repeatedly that I only stick to the latter tact. That is ridiculous.

. . . You cannot, or will not, answer the question. -- Why do you think you have the power to disarm your neighbor?

Okay, I'll answer this one pointedly for you.

Gee, what a concession.

Under the rules of jurisprudential reasoning known as ad absurdum or ad horribilis it is legal to curtail the possession of such weapons by an individual

I been asking for constititional reasoning. There is nothing in the Constitution delegating the power to use such "rules of jurisprudential reasoning" to "curtail the possession of such weapons". -- You're making this up.

as can be deemed by sensible thinking that it is "absurd" or "horrible" to contemplate that they have a legitimate use by the individual and therefore their right to keep and bear these arms is not covered by the 2nd Amendment.

Amazing circular argument. -- The individual's right to keep and bear these arms [full autos] is not covered by the 2nd Amendment because it is deemed by sensible thinking that it is "absurd" or "horrible" to contemplate that automatic weapons have a legitimate use by the individual.

Can you imagine the Los Angeles Police going into action against the Bloods and the Crips when the latter have 105 mm cannon, rocket-propelled grenades, flamethrowers, and 80 mm howitzers?

Weird comment. - Do you really think those gangs couldn't get such weapons if they wanted them?

Under the logic that no one has the right to disarm them of these weapons, the Bloods and Crips could legally possess them. That is both absurd and horrible to contemplate and therefore the legal enforcement of laws preventing them from possessing such weapons is constitutional.

Bold & mind boggling 'logic'. Automatic firearms are "horrible" thus prohibitions are Constitutional.

To argue otherwise would be suicide for a civilized society.

Yep, Ms Brady & Clinton agree with you on 'society'.

And I agree with Justice Oliver Wendell Holmes assertion that "the Constitution is not a suicide pact."

Thanks for your candor jacques..

Can you imagine the Los Angeles Police going into action against the Bloods and the Crips when the latter have 105 mm cannon, rocket-propelled grenades, flamethrowers, and 80 mm howitzers? Under the logic that no one has the right to disarm them of these weapons, the Bloods and Crips could legally possess them. That is both absurd and horrible to contemplate and therefore the legal enforcement of laws preventing them from possessing such weapons is constitutional.

How long would those gangs survive if their victims could shoot back?

"I been asking for constititional reasoning. There is nothing in the Constitution delegating the power to use such "rules of jurisprudential reasoning" to "curtail the possession of such weapons". -- You're making this up. . . ."

No I'm not. This refers to arguments of jurisprudence known as argumentum ad absurdum and argumentum ad horribilis which are used to decide constitutional questions. See the following link on the 2nd Amendment and Handgun Prohibition:

I quote from the paragraph discussing the weakness of the Supreme Court's "dual test" in Miller arguing for a third test to be added:

". . . This triple test resolves the ad absurdum and ad horribilus results (to which Miller's sketchy and flawed militia-centric discussion greatly contributed) sometimes viewed as flowing from an individual right interpretation of the amendment. . . ."

And later in that article on Chief Justice Taney's conclusion on arming freed blacks in the Dred Scott decision:

". . . Adopting that conclusion in Dred Scott, Mr. Chief Justice Taney offered an argumentum ad horribilis that exemplified the individual right interpretation expounded by all the courts and commentators relatively close in time to the amendment. . . ."

Rules of jurisprudence are used in interpreting the law tpaine. I don't make them up.

". . . Amazing circular argument. -- The individual's right to keep and bear these arms [full autos] is not covered by the 2nd Amendment because it is deemed by sensible thinking that it is "absurd" or "horrible" to contemplate that automatic weapons have a legitimate use by the individual. . . ."

I never mentioned automatic weapons tpaine. I referred to 105 mm cannon, RPGs, flamethrowers, and 80 mm howitzers. You are acting deceitfully to try to give the impression to this board that I specified automatic weapons.

And for the record, since someone will probably ask, I oppose the assault weapons ban.

". . . Weird comment. - Do you really think those gangs couldn't get such weapons if they wanted them? . . ."

Do you really think they don't want them now? I do.

". . . Bold & mind boggling 'logic'. Automatic firearms are "horrible" thus prohibitions are Constitutional. . . ."

This is the 2nd time you've associated my comments with automatic weapons. It was a lie the first time and it's still a lie the 2nd time.

". . . Yep, Ms Brady & Clinton agree with you on 'society'. . . ."

I oppose the Brady Bill as blatantly unconstitutional and I view anything and everything Clinton as banal and disgusting. You have no right to associate me with either.

[You're making an] Amazing circular argument. -- The individual's right to keep and bear these arms [full autos] is not covered by the 2nd Amendment because it is deemed by sensible thinking that it is "absurd" or "horrible" to contemplate that automatic weapons have a legitimate use by the individual. . .

I never mentioned automatic weapons tpaine. I referred to 105 mm cannon, RPGs, flamethrowers, and 80 mm howitzers. You are acting deceitfully to try to give the impression to this board that I specified automatic weapons.

This is the 2nd time you've associated my comments with automatic weapons. It was a lie the first time and it's still a lie the 2nd time.

At post #215 you commented:

"-- it is the National Firearms Act that limits what arms private individuals can own, and it is enforced every day of the year. --
---Let me quote from an article at Guncite.com, ---

". . . Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. . . ."

-- Therefore the only limitations upon which arms a private individual can own are those defined under the National Firearms Act --"

Do you deny that you wrote that it is the National Firearms Act that limits what arms private individuals can own? --- And did you not post that the NFA does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on?

Keep digging.

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