Posted on 06/18/2002 6:46:34 AM PDT by SJackson
Bush policy switch finally reconciles the government to the right to bear arms
The overwhelming consensus among historians and law professors is that the Second Amendment guarantees that every responsible, law-abiding adult may have guns. It is no coincidence that the few scholars who disagree all are gun-control advocates. In contrast, endorsers of the individual-right view include not only gun-control opponents, but also numerous scholars who support gun control yet honestly acknowledge the overwhelming historical evidence.
That evidence starts with the words "right of the people" to keep and bear arms. The Bill of Rights passed as one document in 1789: Every provision having that wording guarantees a right to individuals.
To deny the Second Amendment is such a right requires assuming that when the First Amendment says "right of the people," it means a genuine right, but 16 words later, it means a "states' right" or a meaningless "collective right" -- but 26 words later in the Fourth Amendment, it refers to a genuine right again, as it also does in the Ninth and 10th amendments.
The Second Amendment also mentions "militia," a concept that, under colonial and state laws, meant every home's having a gun and every military-age male's mustering with it for militia duty.
Thus the Second Amendment's guarantee of individuals' rights to arms simultaneously guaranteed the arms of the militia, which were the arms of its individual members.
Moreover, the rule today (and in the 18th century) is that statement-of-purpose clauses do not limit the broad language of a rights guarantee. Eighteenth-century state constitutional right guarantees often had purpose clauses, but none is interpreted to limit the right involved.
James Madison, who wrote the Bill of Rights, envisioned them not as appended to the Constitution (as Congress actually did), but rather as inserted into the pertinent part of the Constitution. The Second Amendment he intended to insert not into the militia clauses (article 1, section 8, clauses 15 and 16) but into the personal-rights clauses (section 9), along with freedom of speech, press, assembly, etc.
The Founding Fathers' ideas would group them today with the National Rifle Association's most militant members. "One loves to possess arms," Thomas Jefferson wrote George Washington on June 19, 1796. James Madison assured his fellow countrymen they need not fear their government "because [you have] the advantage of being armed, which the Americans possess over the people of almost every other nation."
All other founders who discussed guns agreed. If any disagreed, writes professor William Van Alstyne, former member of the national board of the American Civil Liberties Union and one of the great figures in modern American constitutional law, "it remains one of the most closely guarded secrets of the eighteenth century, for no known writing from the period" says so.
Before the modern gun-control debate, no one denied that the amendment guarantees an individual right. In a 183-page review of all 19th-century references, criminologist David Kopel found not one denial. A typical explanation was that which a great Supreme Court justice offered in an 1834 book on the Constitution: "One of the ordinary modes by which tyrants accomplish their purpose without resistance is by disarming the people and making it an offense to keep arms."
Our founders were steeped in the belief of classical political philosophy that only an armed people could maintain their liberty.
From Locke and Montesquieu back to the ancient Greeks and Romans, liberal philosophers had repeated Aristotle's dicta that basic to tyrants is "mistrust of the people; hence they deprive them of arms" and that confiscation of the Athenians' arms led to the tyrannies of the Pisistratids and the Thirty.
Two fallacious arguments against the Second Amendment deserve mention.
First, during the Revolution, Tories were sometimes in some places denied the right to arms.
But if that is deemed to invalidate the constitutional right to arms, it proves entirely too much. For some Tories were also imprisoned, exiled and even executed for their beliefs (without trial).
No one would suggest that such examples prove that the First, Fourth and Fifth amendments do not guarantee freedom of speech, the rights to due process of law and jury trial, etc. If wartime denials of civil liberties are deemed the measure of our Bill of Rights, we have no civil liberties.
Second, it is argued that the right should not apply to modern small arms, which are supposedly so much deadlier than 18th-century guns. But the fact is that 18th-century firearms were far more deadly, given the difference in medical care.
Imagine that in 1789 someone fired a double-barreled shotgun into a crowded area. Fifty to 60 people would have been struck and at least 90 percent would have died. Now imagine that a modern crowd just stands there while someone fires four magazines from a 15-shot semiautomatic pistol into them. Assuming the same number of people are hit, fewer than 10 would die while the rest would recover.
Finally, if the Second Amendment is outmoded, it should be repealed, not evaded. Harvard law professors Alan Dershowitz and Laurence Tribe, who loathe guns, urge repeal, but emphasize that until that occurs, the amendment must be observed.
Incidentally, I have been denounced by the NRA for asserting the amendment allows many gun controls so long as the right of law-abiding, responsible adults to have guns is observed.
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Don B. Kates of Battle Ground is a retired constitutional law professor. He wrote the leading law review article on the Second Amendment and the treatise on it in the Encyclopedia of the American Constitution.
In my opinion, the only compelling interest that could be shown by the federal government to overcome the right to keep and bear arms would lie in preventing violent felons from owning guns. Anything greater, such as taxes on ownership, registration, and bans of particular types of firearms can't survive the strict scrutiny that would be applied if the 2d A were interpreted like the rest of the Bill of Rights.
Because it's not really about the guns. I'm convinced that anti-gun-bigots, PETA people, and environmental zealots all come from the same mould - they're busybodies. It's not really about the merits or demerits of their cause, but rather about getting off on making other people conform to their world view. Pathologically, the majority of them feel small and irrelevant unless they are having an impact on the world. Working to ban the daily activities of living helps them ignore their irrelevance in two ways. First, they get to be around similar like-minded busybodies, standing around and clucking their tongues about how the world would really be so much better if anyone / everyone listened to them and obeyed their will. Second, unfortuantely, they sometimes succeed. Even if they don't, they get persecuted and laughed at, which at least is better than being ignored as small and insignificant lumps of protoplasm.
It's all about self-esteem.
Our founders were steeped in the belief of classical political philosophy that only an armed people could maintain their liberty.
Yet they relied on integrating facts of history with physical reality, natural law and honest actions, not intellectualizing ideas or theories of politics, metaphysics, epistemology or religion.
In crafting the constitution the founders knew to put their words as objective statements of fact as a means to minimizing ambiguity. They worked to suppress politics, philosophy and religion in government. While they gained much knowledge and insight from the study of philosophy the learned by integrating facts of history and physical reality that philosophy and politics were often used by those in power against "peasants" or commoners.
But if that is deemed to invalidate the constitutional right to arms, it proves entirely too much. For some Tories were also imprisoned, exiled and even executed for their beliefs (without trial).
Above is where present day politicians and those of prior decades, big media and academia use philosophy (as unconventional as it is) and politics to gain power over the "commoners" or citizens. Unconventional by standards that the founding fathers used in their thinking.
Other identifications of intellectualizing, philosophizing and politicking are found below:
No one would suggest that such examples prove that the First, Fourth and Fifth amendments do not guarantee freedom of speech, the rights to due process of law and jury trial, etc. If wartime denials of civil liberties are deemed the measure of our Bill of Rights, we have no civil liberties.
That is unconventional philosophy in its omission to acknowledge the comparative. Below is example of intellectualizing and politicking.
Second, it is argued that the right should not apply to modern small arms, which are supposedly so much deadlier than 18th-century guns. But the fact is that 18th-century firearms were far more deadly, given the difference in medical care.
Imagine that in 1789 someone fired a double-barreled shotgun into a crowded area. Fifty to 60 people would have been struck and at least 90 percent would have died. Now imagine that a modern crowd just stands there while someone fires four magazines from a 15-shot semiautomatic pistol into them. Assuming the same number of people are hit, fewer than 10 would die while the rest would recover.
Why can't gunhaters see the logic with this?!?!
They don't want information that will thwart their agenda thus they only study the opposing view looking for ways to refute it. Go to most any open forum on the internet and you'll find one or two people doing similar. Gosh, I wonder where they learned it from? Could it be from politicians, bureaucrats public-school indoctrination big media journalists, college professors and people advocating special interest agendas--parasitical elites? I think so.
Pathologically, the majority of them feel small and irrelevant unless they are having an impact on the world. Working to ban the daily activities of living helps them ignore their irrelevance in two ways. First, they get to be around similar like-minded busybodies, standing around and clucking their tongues about how the world would really be so much better if anyone / everyone listened to them and obeyed their will. Second, unfortuantely, they sometimes succeed. Even if they don't, they get persecuted and laughed at, which at least is better than being ignored as small and insignificant lumps of protoplasm.
It's all about self-esteem.
That's basically the same conclusion I have come to. That's their motive, whereas my above comments explain a form of willful cognitive dissonance.
Sure. New compelling government interests are discovered by the courts all the time. Keeping citizens safe from bodily injury or death has long been recognized as a compelling government interest. Preventing violent felons from owning firearms would be interpreted as a narrowly tailored response to this problem. Add to that the fact that it's long been settled that after conviction a felon essentially gives up all constitutional rights except for the Eighth Amendment protections, and possibly some religious practices rights, and there's really no constitutional basis for felons to claim they have a right to own a gun. Note that that's a different question, though, than whether they have a God-given or natural right to own firearms. The latter issue is a much closer question, especially if there has been true rehabilitation.
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