Analyzing The 2nd Amendment

The first in a series of articles on the importance of the upcoming general election

Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.

The Verdict of Scholarship Yet, intellectual honesty compels many far more important scholars to accept the standard model of the Amendment as an individual's right despite personal anti-gun feelings. Famed constitutional lawyer and Harvard law professor Alan Dershowitz, who defended O.J. Simpson and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed. Yet, says Dershowitz: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."

Another former ACLU national board member, Duke Law School's William Van Alstyne, who is among the premier constitutional scholars of modern times, contemptuously dismisses the states'-right view. "If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century for no known writing surviving from the period between 1787 and 1791 states such a thesis." He emphasizes that to take civil liberties seriously requires respecting the Second Amendment no less than freedom of speech and religion and the other rights in the First Amendment. [Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994).]

Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].

RIGHT OF THE PEOPLE Anti-gun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard-model treatment. Yet, remarkably, these anti-gun writers give only that one initial mention. If they have answers to the 50 pages of evidence I offer for the standard model, they neglect to offer them. So I shall limit myself to just two examples of my unrefuted evidence.

Written by James Madison, the Bill of Rights was enacted as a single document. Whenever it says "right of the people," it does so to describe individual rights. To ignore this point you must think that in the First Amendment Madison used "right of the people" to describe an individual right. But then, 16 words later, he used it in the Second Amendment meaning a state's right. But then, 46 words later, the Fourth Amendment says "right of the people" meaning an individual right again. And then "right of the people" was used in the Ninth Amendment to mean--guess what--a right of the people.

In fact, throughout the Bill of Rights and the Constitution the word "right" is always used to refer to something individuals have and never used to refer to powers possessed by government. Such powers are always called "power" or "authority."

THE PURPOSE OF THE MILITIA Anti-gun advocates imply from the Amendment's reference to a "well-regulated militia" that government can regulate gun ownership. But that is totally outside the 18th century usage of "well regulated," which means "well trained" and "operating properly." Likewise, anti-gun advocates think the mention of militia show the right to arms applies only to states arming their militias. But in the 18th century "militia" did not mean "army" or "soldiers." The militia was a system of laws under which every man and every household was to have guns (unorganized militia), while most men of military age were required to appear with their guns when called out for drill or war (organized militia). The arms of the militia were the personally owned arms of its members.

It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyranny or foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense. But the Founders did not misconstrue that, as we so often do, as just a right to defense against nonpolitical criminals. The Founders believed individuals needed to be armed for political self-defense (e.g., Jews resisting the Gestapo) and that, in the ultimate extreme, people must join together to overthrow tyranny. (Note that the literal meaning of the term "revolution" was an uprising seeking to bring government back to its original free form, not to produce some new form.) [Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).]

WHAT LAWS DOES THE AMENDMENT PRECLUDE? The NRA's experts like Prof. Steve Halbrook believe the Amendment does more than I feel it does. And another expert, Prof. Nelson Lund, thinks neither Halbrook nor I interpret the Amendment broadly enough. We all agree, however, that the Amendment guarantees every responsible law-abiding adult freedom of choice regarding guns.

So assault-weapon bans are unconstitutional. "Assault weapons" are just semiautomatic rifles differing only in that they are down-powered from those of the WWII era. Banning them infringes on the freedom of law-abiding, responsible adults to choose which firearms they wish to have. Magazine limitations are invalid for the same reason.

So-called Saturday Night Special bans are valid only insofar as a particular model of firearm is provably unreliable or dangerous to use in the manner it is reasonably foreseeable to be used. The reasons for most SNS bans--that the guns are small, light and/or inexpensive--are invalid under the Second Amendment. Nor can states push gun prices to astronomical levels by requiring that guns incorporate dubious or unnecessary safety features.

LIMITS ON THE AMENDMENT The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.

Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)

Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.

The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.

VINDICATING THE RIGHT TODAY The Supreme Court has briefly referred to the Amendment in almost 40 different opinions, all showing that it guarantees an individual right to arms. But the court has never provided a full and lengthy exposition of the Amendment. In fact, several lengthy and considered opinions would be required to illuminate the Amendment's various aspects.

To any judge willing to follow the law, it must be clear that the Amendment guarantees the freedom of all responsible, law-abiding adults to choose to possess firearms for personal and family defense. We must depend on the president to appoint such judges and the Senate to confirm them.

Several vacancies on the U.S. Supreme court are likely during the next presidential term. Many appointments are also expected on lower federal and appellate courts. The president and members of the senate who are elected in November will play a major role in the rights of gun owners for many years.

"It will be up to the SCOTUS to resolve the conflict."

"The cases rejected by the Supreme Court are Emerson v. United States, and Haney v. United States."
--usgovinfo.about.com/library/weekly/aa061002a.htm

(On December 1, 2003, the USSC also rejected Silveira v. Lockyer)

"Ah, but the Founding fathers were adamantly opposed to a federal standing army. They never envisioned what we have today. . . "

Well, posse comitatus was enacted to prevent the use of the military against the Civilian population not on federal properties. But I see they got around that by claiming they only act in an advisory capacity when they're off the reservation. But what's the difference between them training and arming LEO's as assault troops or doing it themselves? None that I can see. Where there's a will, there's a way.

" ... Also, there is no more "well regulated state militia".

Federalized long ago. So for all practical purposes, no longer under control of the governors even though a national emergency or war has not been declared. The states have long ago contracted with the feds in return for funding. Federal guidelines are not guidelines, they are are compulsary standards. You gotta dance with the guy that brung ya.

". . . Now what do we do about the second amendment?"

I suppose we must do what logic dictates. I personally doubt that the feds will ever attempt to dis-arm the population, even with NATO or the UN's help. I have every faith that our officials do not want to live in constant fear of the people. Not the American way. If it ever comes down to it, the people will not allow gummint to destroy the foundation of freedom and liberty. They know that and we know they know it.

The only immediate problem I see is the AWB. If it's renewed, I'll have to re-think my position.

What is really discouraging, though, is to see so many states bully away a Citizen's right to self-defense. I can only say that if the people in those states want to walk around defenseless because their officials force them to, that's their right. If they don't think their life is worth protecting, that's their business.

It's my business to protect mine. How about you?

Quote

I would be willing to have a national discussion on an amendment that would add a clause limiting the Second to directable fire weaponry and related mechanical systems. Doing so would remove any irrational fears about private NBC weapons, while still allowing the full range of conventional armaments for civilian usage, militia efficacy, and personal enjoyment.

I was heavily involved in a message board on Yahoo! a long while back with the header being Gun Control Debate. In there, a proposal was made to do virtually the same thing. It went on for months but failed to attract any viable attention in the media or even among the legislatures of the States being represented by the board members.

The limitation that we are seeing on the Constitution, is that only when someone challenges a law, do we see it potentially rise to the level of the SCOTUS. This is problematic when the Congress has amended various and sundry bills with overlapping amendments. So by the time the SCOTUS gets around to striking down one law, they have a dozen or so others to have to contend with.

A board-friend of mine with the moniker LegalEagle introduced that nefarious bit to me.

Well said. I agree with you up excepting only one point... there is a point at which the government has the responsibility of "weapon" control--that is where this responsibility is exercised for the general welfare.

No "arm" should be withheld from the citizenry except for those that, by their nature, pose a danger to the community. In this category I put NBC weapons (nuclear, biological and chemical for the folks in Rio Linda). Even governments have a hard time keeping this stuff under control. You'll see siren towers erected across communities that have such storage at local armories to warn of containment failure. Certainly the Smiths don't want the Joneses to have NBC storage next door...

Other than that standard, no limits.

Hmmmm. All along I thought he was awakening the Minutemen, members of the Concord militia.

What he was doing was trying to get to Rev. Jonas Clarke's house in Concord to deliver Dr. Joseph Warren's message that a British patrol had left Boston proper and was heading their way to arrest them. But Revere---and others---had been through this drill before, with the Powerderhouse Alarm, the Portsmouth Alarm, the Salem Alarm . . . Lex & Conc. was just the latest and greatest British gun grab. Along the way, of course, he awakened the captain of militia in every town through which he passed.

William Dawes was doing the same thing as Revere, only he left through Boston's South Gate, sneaking right past the guards, pretending to be drunk. All of eastern Massachusetts was ripe with post riders on the night of 18 April 1775.

This point can't be emphasized enough: the revolutionary spirit would not have flowed from the city to the countryside, where the Revolution that launched a nation ignited, if it were not for a series of British gun grabs and power-plays that convinced the yeoman there that the British actually were out to get them. Had the British not tried to seize arms in Essex County, Middlesex County, etc., the revolutionary spirit might have died right in Boston---it was mainly Boston's problem up until then.

Dateline: 06/10/02
"Justices today declined without comment or dissent to consider two cases involving the Justice Department's recently stated policy that the Constitution's Second Amendment right to keep and bear arms applies to individuals, not just the state militias."
"The cases rejected by the Supreme Court are Emerson v. United States, and Haney v. United States." --usgovinfo.about.com/library/weekly/aa061002a.htm
(On December 1, 2003, the USSC also rejected Silveira v. Lockyer)

Thanks for the update. Bad, bad Zoot! Naughty, evil Zoot! I will have to dig up the opinion on FindLaw and see why they rejected them.

"1) The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity."

While I largely agree w/your writings, I can't let this go!

"organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe"

Well, wouldn't George Washington be surprised! Minutemen were nothing more than militia who were to be ready in a minute to go. Militia were indeed NOT highly trained ! They were exactly as Zavian (I believe) described - and this man does RevWar history. Good Lord, the RevWar was rife w/"citizen soldiers" w/nary a well-trained lot amongst the Continentals, much less local alarms and militia, which were meant to be quick response to local threats! Even tho those militia were "long-standing", they were NOT at ALL "highly trained"!

As for the National Guard - it is NOT the militia. The militia is defined separately, and you, as a proper-age male, could be called on in a deadly serious happening in your locality! The militia are all able-bodied males of certain age. Period. The National Guard - you specifically volunteer and join. Bit of a difference.

The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity. The moment they are federalized, they become part of the armed forces. In fact, the U.S. Code currently defines the National Guard as the "organized militia," and a 1990 Supreme Court case specifically ruled that the NG of a state, at the moment of and duration of its federalization is part of the regular armed forces for Constitutional purposes.

Not really. The organized militia, in a colonial sense, was the average Joe. In Massachusetts, at least, there were no organized police forces, let alone standing armies, and therefore community defense was everyone's business. Every able-bodied man who could train and drill with his friends and neighbors did, and they were indeed the organized militia.

The "minutemen" concept was a direct response to British aggression in 1774/75. The Provincial Congress of Massachusetts ordered each community to create special companies of men who'd be ready to mobilize immediately. These men, naturally, were the youngest, strongest, most motivated men in each community's militia.

Both minuteman companies and regular militia companies fought side-by-side at Lexington & Concord and Breed's/Bunker Hill. There simply wasn't the equivalent to an organized army of any kind prior to the formation of the Provincial Army, which was eventually folded into the Continental Army.

Check out Cornell's U.S. Code:

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > Sec. 311. Next

Sec. 311. - Militia: composition and classes

(a)

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b)

The classes of the militia are -

(1)

the organized militia, which consists of the National Guard and the Naval Militia; and

(2)

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia
_______________
Thus, per Section 1, the "Organized Militia" includes the NG. It is part of the Militia, just not part of the "Unorganized" Militia.

Regarding the Minutemen, my understanding is that they were both better trained and ready to get to battle a lot faster than the average member of the militia. I would agree that the vast majority of the militia was badly disciplined and badly (if at all) trained, but I don't think that this applied to the Minutemen. What, after all, would be the point of getting a bunch of undisciplined, badly trained people to a battle quickly - so that they can be killed first?

robertpaulsen said: What is your opinion of why the Founding Fathers even put in the first clause? Certainly if the FF intent was that the right of individuals to keep and bear arms was not to be infringed, it wasn't necessary, was it, to say why it was not to be infringed?

Not true. We have discussed the Gitlow case before. Without the Militia clause, the courts would simply rule that our Founders would not have included in the Constitution the very means for people to overthrow it. The courts in Gitlow so ruled that there was a limit to freedom of speech.

Silveria was rejected with no comment. They just plain old refused to hear it. Even though doing so put the 9th and 5th cicuits at odds on a Constitutional question.

Also note, that while the USSC refused to hear the Emmerson case, it was not because of the Circuit judges inclusion of language that upheld the "individual Right" standard for the Second.

There are several judges, at all levels, that require impeachment for violating their oath.

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