Someone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from earlier this year, 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right-to-bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll earlier this year found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

I think the Founders were perfectly clear about this subject when they wrote:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

And how does one throw off such Despotism? A series of scathingly sarcastic letters to the editor? No. Tyranny is defeated by the only thing it recognizes: force. Force that involves (gasp!) guns. Now the Founders were very sober in this declaration. They advised that no government should be overthrown for "light and transient causes". But, they reasoned, if all peaceful attempts to redress wrongs and establish justice and freedom fail, then the people must have the means to secure them for themselves. Hence, the Second Amendement.

I didn't quite get all the HTML code in that original post. Here are a few of the first paragraphs correctly marked up.

------------

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

You might also like some of the points in this article: So, You Want To See Me Naked, Part II?

by Linda A. Prussen-Razzano, Dallas Bureau Chief

November 19, 2002

American Partisan Magazine

In January of 2000, almost three years ago, I wrote a long, blistering article entitled, "So, You Want To See Me Naked?" Originally appearing in Enter Stage Right, it would later be reprinted (with or without permission and usually without compensation) on numerous pro-gun websites. According to Steve Martinovich, Editor of Enter Stage Right, it was, at the time, the single most popular column in the history of the magazine, beating out even the distinguished Colonel David Hackworth.

Imagine my surprise when, a few short weeks ago, I received a call from a production assistant at Fox News asking inquiring about my article. A lot had happened in my life since I wrote that piece, the most obvious being the births of my beloved son and daughter. Where before I had a regular column and wrote frequent guest articles, I since moved into a state of semi-retirement. I am now devoting as much time as possible to two miraculous children – successful pregnancies after years of encroaching sterility and heart-wrenching failures.

The sentiment I expressed then remains the same; however, the depth of devotion to that sentiment has increased tenfold. And just so people understand explicitly why I hold this position, allow me to point out several key facts:

1. Every single person on this planet has several inalienable rights. These rights are ours by virtue of our humanity, stemming from a universal authority higher than any government fashioned by man. The Constitution does not grant us our rights, it merely lists the ones we automatically possess. Our rights are not subject to the whim of elected officials or tyrannical despots – they are an unquestionable part of us. We can judge the virtue of a society by how vehemently it recognizes and defends a person’s exercise of their rights, or how actively it seeks to thwart them.

Hence, any attempt to deny, infringe, or remove these rights violates the very essence of our humanity, defiles the universal truth of human rights, and undermines the moral absolute that allows us to bring freedom to those people denied their rights by oppressive regimes.

Those who claim they want a "reasonable compromise" on our rights are, in fact, asking us to relinquish them, just so they can feel an added sense of false security. In light of the magnitude of their request, there is nothing reasonable about it. Moreover, these requests typically come from people who have little understanding about the inherent nature of rights, thinking them subject to the will of the populace instead of a necessary and intrinsic part of our existence as human beings. It should come as no surprise, therefore, that they are so ready to relinquish them, or to demand that others relinquish them. Since they have no concept of their permanence, they view them as transient and disposable, instead of a critical part of a free society.

2. We not only have the right to live, we have the right to protect our lives. We have the right to protect our lives against any power that seeks to unjustly take it from us. Just as you do, I have the right to defend my life against some murderous creep crawling through my back window, against an enemy invading my country, and against a tyrannical government that seeks to oppress me.

3. God gives us children to love, cherish, nurture, and protect. Like many of you, I take this responsibility seriously. I will not struggle with innumerable locks, politely asking an intruder to please stop torturing my babies while I prepare myself, just so others can feel all warm and comfy inside. I am an unapologetic gun owner. I own them for a reason. I will have them at the ready, to use when absolutely necessary, because my childrens’ lives are more important to me than some misguided sense of self-satisfaction.

4. Just as I teach my children not to run with a lollipop in their mouth, not to play with scissors or utensils, and not to drink bath water, I will teach my children about guns. When they are ready, I will enroll them in the "Eddie the Eagle" program, take them to the range, and let them go hunting. They will learn to respect the power of a weapon, understand it is not a toy, and be trained to defend themselves. Those who can’t grasp the concept that appreciation for life is taught in the home should not procreate.

5. Let’s be blunt, shall we? Murder is against the law. Rape is against the law. Robbery is against the law. There are thousands of other variations to these crimes, all of them against the law, yet crimes still occur. Law-abiding citizens follow the law; criminals - by their very nature, do not. As this is an extremely easy concept to understand, only the most ignorant among us would presume that passing additional gun-control laws will actually have an impact on crime.

Perhaps you’ve noticed this is a sore spot for me. Can you guess why?

I know what it’s like to have a gun pressed to the back of my head, to have some freak tell me he’s going to blow my brains out if I don’t comply, to wet myself in horror and have my life snapshot before my eyes, to be the very victim the anti-gun crowd holds up as just cause for banning guns.

That’s right…it’s personal.

In truth, I have several friends who choose not to exercise their right to keep and bare arms. I respect their decision; they understand their family dynamic better than anyone. If they aren’t comfortable handling a gun, if they can’t overcome their propaganda-driven fear, if they have religious or personal objections, by all means, they shouldn’t own one.

But don’t tell me I shouldn’t, or can’t, exercise my right to own a weapon. I have just four words for folks like that: Over My Dead Body. I will not play the victim for you. I will not trust the future of my security to things like "luck". I will not be a statistic, just so you can feel as if you have "done something." I will not relinquish my inherent, inalienable right to defend myself and my family, leaving us naked and exposed like manufactured future victims, so that you can pretend you made my world a safer place.

As I have said before, my days of being a helpless female are over. ***

.

My Goodness! This is a Law Professor who is studying the Second Amendment and he doesn't even refer to the "Preamble to the Bill of Rights"! The Preamble to each and every document describes WHY that document was written. And, is that just the subject matter that he is attempting to solve here?

OK, Boys and Girls... Why were the "Bill of Rights" Written? What caused the founders of this nation to add ten additional late minute changes to the Constitution? Hum?

Well, let's see what THEY said...in their own words...

The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York,
on Wednesday the fourth of March,
one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

.

A Few More Criticisms of the Ninth Circus Court of Appeals Ruling About the Second Amendment

I pointed out here that Judge Reinhardt pretended that there was little in the way of precedent concerning the Second Amendment. One must conclude that Reinhardt hasn't bothered to read much of the literature in support of the individual rights view, or he would be aware of it. ("If I close my eyes long enough, maybe it will all disappear.")

Professor Volokh has done a nice job of giving a short list of reasons not to take Reinhardt's decision very seriously, largely because of the important pieces of historical evidence that Reinhardt leaves out. (Of course, if the goal isn't truth, but politics, what Reinhardt leaves out isn't surprising.)

A few people have pointed out that Reinhardt's decision cites Michael Bellesiles, a less than trustworthy source, in several places. At least one of those citations is, shall we say, quite arguable. Footnote 37 of Reinhardt's decision says:

During the period that the Articles were in effect, both George Washington and Henry Knox, who was to become the nation’s first Secretary of War in the Washington Administration, urged the creation of a standing national military force, to no avail. H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 411-13 (2000). Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).

So what did Washington actually write to Madison? Fortunately, Washington's letters are available online, and you can look this up pretty quickly:

The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Mount Vernon, November 5, 1786.

My dear Sir: I thank you for the communications in your letter of the first instt. The decision of the House on the question respecting a paper emission, is portentous I hope, of an auspicious Session. It may certainly be classed among the important questions of the present day; and merited the serious consideration of the Assembly. Fain would I hope, that the great, and most important of all objects, the foederal governmt., may be considered with that calm and deliberate attention which the magnitude of it so loudly calls for at this critical moment. Let prejudices, unreasonable jealousies, and local interest yield to reason and liberality. Let us look to our National character, and to things beyond the present period. No morn ever dawned more favourably than ours did; and no day was ever more clouded than the present! Wisdom, and good examples are necessary at this time to rescue the political machine from the impending storm. Virginia has now an opportunity to set the latter, and has enough of the former, I hope, to take the lead in promoting this great and arduous work. Without some alteration in our political creed, the superstructure we have been seven years raising at the expence of so much blood and treasure, must fall. We are fast verging to anarchy and confusion!

A letter which I have just received from Genl Knox, who had just returned from Massachusetts (whither he had been sent by Congress consequent of the commotion in that State) is replete with melancholy information of the temper, and designs of a considerable part of that people. Among other things he says,

there creed is, that the property of the United States, has been protected from confiscation of Britain by the joint exertions ofall, and therefore ought to be thecommon property of all. And he that attempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the Earth.

again They are determined to anihillate all debts public and private, and have Agrarian Laws, which are easily effected by the means of unfunded paper money which shall be a tender in all cases whatever.

He adds

The numbers of these people amount in Massachusetts to about one fifth part of several populous

Counties, and to them may be collected, people of similar sentiments from the States of Rhode Island, Connecticut, and New Hampshire, so as to constitute a body of twelve or fifteen thousand desperate, and unprincipled men. They are chiefly of the young and active part of the Community.

How melancholy is the reflection, that in so short a space, we should have made such large strides towards fulfilling the prediction of our transatlantic foe! "leave them to themselves, and their government will soon dissolve." Will not the wise and good strive hard to avert this evil? Or will their supineness suffer ignorance, and the arts of self-interested designing disaffected and desperate characters, to involve this rising empire in wretchedness and contempt? What stronger evidence can be given of the want of energy in our governments than these disorders? If there exists not a power to check them, what security has a man for life, liberty, or property? To you, I am sure I need not add aught on this subject, the consequences of a lax, or inefficient government, are too obvious to be dwelt on. Thirteen Sovereignties pulling against each other, and all tugging at the foederal head will soon bring ruin on the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent incroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining. With sentiments of the sincerest esteem etc.46

[Note 46: From a facsimile in theWashington-Madison Papers sales catalogue (The McGuire Collection), 1892.]

Did Reinhardt misquote or misrepresent what Bellesiles said? No. Here's what Bellesiles's paper actually said:

Though the rebels had not exactly distinguished themselves in the martial arts, their uprising had far-reaching consequences. George Washington wrote to James Madison that "we are fast verging to anarchy and confusion!"

Now, Washington certainly mentions the Shays's Rebellion in this letter--after discussing "anarchy and confusion!" But there isn't any discussion of "because of the lack of a unified national military force." One might at least as fairly assume that Washington was referring to the problems of finances and the previous inability of Congress to vote for a "paper emission." Washington was definitely a supporter of a standing army, having found militias to be a "week reed" upon which to rely. But this letter is quite a bit more ambiguous than either Bellesiles's representation of it, or Reinhardt's representation of Bellesiles. posted by Clayton at 9:26 AM

---Additional comments by Eugene Volokh.

The Preamble to the Bill of Rights

ken

Effective December 15, 1791
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

End the deception.

Know Your Rights
http://www.harbornet.com/rights/lindat.html

SILVEIRA v. LOCKYER, in which a suit against California's assault weapons law asserted that the Second Amendment protected an individual right. Judge Reinhardt's opinion is one that only a gun control advocate could have written.

Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning.

Except, of course, that this is incorrect. There is an extensive set of decisions which examine the meaning of the Second Amendment, some in considerable detail, but these decisions have been overwhelmingly in state supreme courts.

The following is a list of state supreme court decisions that have, when an individual appealed to the Second Amendment's protections, the court, rather than deny an individual right was protected, did one of the following:

1. Struck down a gun control law;

2. Claimed that the Second Amendment was only was a limitation on the federal government with respect to individual rights, but did not restrict state laws;

3. Claimed the Second Amendment only restricted the federal government, but struck down a law based on a state RKBA provision;

4. Found some other basis for upholding a law, without denying the claim that the Second Amendment protected an individual right;

5. Found that the Second Amendment protected an individual right, but found some method to harmonize a gun control law based on the idea that this was "reasonable regulation," or that the weapons regulated were not protected.

In short, these decisions refused to make this silly claim that the Second Amendment doesn't protect an individual right.

NOTE BENE: I do NOT claim that every decision on the list below found an absolute right to keep and bear arms, or an unlimited right. In some of the decisions, the court has clearly found a way to avoid directly striking down a law by one of the items listed 2-5 above.

I have also excluded a number of appellate court decisions -- but about as many from all three lists below. I also haven't included any of the federal decisions, most of which acknowledge explicitly or implicitly that the Second Amendment protects an individual right.

Aymette v. State, 2 Hump. (21 Tenn.) 154 (1840)
State v. Newsom, 5 Iredell 181, 27 N.C. 250 (1844)
Nunn v. State, 1 Ga. 243 (1846)
State v. Chandler, 5 La. An. 489 (1850)
Smith v. State, 11 La. An. 633 (1856)
State v. Jumel, 13 La. An. 399 (1858)
Cockrum v. State, 24 Tex. 394 (1859)
Andrews v. State, 3 Heisk. (50 Tenn.) 165 (1871)
Fife v. State, 31 Ark. 455, 25 Am. Rep. 556 (1876)
English v. State, 35 Tex. 473 (1872)
State v. Duke, 42 Tex. 455 (1875)
State v. Hill, 53 Ga. 472 (1874)
State v. Wilforth, 74 Mo. 528 (1881)
State v. Workman, 35 W.Va. 367 (1891)
In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902)
Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911)
People v. Persce, 204 N.Y. 397 (1912)
State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916)
State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)
State v. Nieto, 101 Ohio St. 409, 130 N.E. 663 (1920)
State v. Woodward, 58 Ida. 385, 74 P.2d 92 (1937)
State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945)
Watson V. Stone, 4 So.2d 700 (Fla. 1941)
People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950)
State v. Nickerson, 126 Mont. 157 (1952)
In re Rameriz, 193 Cal. 633, 226 P. 914 (1924)
Application of Grauling, 17 Misc.2d 215, 183 N.Y.S.2d 654 (1959)
Burton v. Sills, 99 N.J.Super. 459 (1968)
Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 (1968)
Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)
Rinzler v. Carson, 262 So.2d 661 (Fla. 1972)
Mosher v. City of Dayton, 48 Ohio St.2d 243, 358 N.E.2d 540 (1976)
Kellogg v. City of Gary, 462 N.E.2d 685 (Ind. 1990)
State v. Kessler, 289 Or. 359 (1980)
City Of Princeton v. Buckner, 377 S.E.2d 139, 142, 143 (W.Va. 1988)

The following decisions strongly implied that an individual right was

protected by the Second Amendment:

State v. Angelo, 3 N.J.Misc. 1014, 130 A. 458 (1925)
State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976)
Rabbitt v. Leonard, 36 Conn. Sup. 108 (1979)

The following state supreme court decisons have denied the Second

Amendment protects an individual right:

State v. Buzzard, 4 Ark. 18 (1842)
Harris v. State, 432 P.2d 929 (Nev. 1967)
State v. Vlacil, 645 P.2d 677 (Utah 1982) (but see Justice Oaks' concurring opinion)
Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)
Application of Atkinson, 291 N.W.2d 396 (Minn. 1980)

Unsurprisingly, Reinhardt quotes at length from the one-sided Chicago-Kent Law Review symposium issue published two years ago in which only those opposed to the individual rights view were invited--and paid for their articles. (This is almost unheard in scholarly publications.) Of course, Reinhardt cites the well-known soon-to-be former Professor Michael Bellesiles for support for the collective rights view, apparently unaware or unconcerned about Bellesiles's scholarly integrity problem.

This is the sort of decision I expect from the Ninth Circus Court of Appeals: long on verbal sleight of hand, short on examination of original sources, very trusting of gun control advocate opinions.

posted by Clayton at 1:10 PM

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The Preamble to the Bill of Rights

The Journalist's Guide to Gun Policy Scholars and Second Amendment Scholars