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and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed.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.

"...,the right of the PEOPLE to keep and bear Arms, shall not be infringed"

It does not say state...it says PEOPLE.

Like ya said....their Argument does not hold water.

It also reads "...keep and bear Arms,<"

Does not say that we are limited to certain Arms.

I guess it depends on what you believe can be used to overthrow! ;-)

My gut reaction - no, you are not wrong.

But I'm afraid you think we could use just our firearms to actually overthrow a gov!

BTW, no disrespect meant here. Partly I'm getting confused as to who said what! Always good to find another RevWar "fan"!

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Do you think the Second Amendment also applies to State and local governments?

Excellent question. One that the Bill of Rights mentions in the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Each State's own Constitution (or I should say, the majority of the States) contains a clause similiar to the Federal Bill of Rights. Some are even more permissive.

I don't think with our civilian arms we could "overthrow" or government if it did go that route.

With our arms pulling the vote lever and voices, we could. But I am afraid America has become to "dumbed down for that". People do not know what liberty or Freedom are. Both different, but go hand in hand. People now want the government to take care of them, not to fend for themselves.

On the "arms" issue.

I believe we haven't been attacked by terrorist like the rest of the world, is because we are an "armed" populace. We have more civilins with guns than any other country, besides Switzerland and Isreal(the exception).

Privateers were utilized as sea-going malitia. The Letters of M&R were nothing more than authorizing them to use "piracy" against pirates, the British Fleet, or any other enemies we faced before putting together a formidable Navy.

This would be pretty much the same thing as the FedGov hiring bounty hunters to go after Osama.

Pretty much, although different in mission, to temporarily deputizing civilians to help with a county law enforcement effort.

Do you think the Second Amendment also applies to State and local governments?

Excellent question. One that the Bill of Rights mentions in the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Each State's own Constitution (or I should say, the majority of the States) contains a clause similiar to the Federal Bill of Rights. Some are even more permissive.

Are you saying that State and local governments are bound by the Second Amendment or not bound by it?

"but still mean the same to those in the know"

Doesn't "arms" have a military connotation?

For example, a military person would say that he heard "small-arms fire". A civilian would say he heard "gunfire".

Very specific language, indeed.

QuoteDoesn't "arms" have a military connotation? For example, a military person would say that he heard "small-arms fire". A civilian would say he heard "gunfire". Very specific language, indeed.

Arms has come to mean weapons of any and every sort. Read:Arms Race. In the military, Arms is specifically man-portable, anti-personnel. Ordnance is artillery and delivered weaponry, such as Dragon, AT-4, Stinger, TOW, Mk type bombs, etc.

Doesn't "arms" have a military connotation?

I guess it could by todays standards.

In the 18th century, "Arms" were any weapon for defense.

Pole-Arms, Side Arms...etc.

In the words of Paul Revere on his famous ride, "to arms, to arms, the British are coming!"...He was speaking, nay, yelling to the common citizen.

"The right to bear arms includes a right to carry them but not concealed."

Right. It says right there: ' . . . the right to bear arms, but not concealed, shall not be infringed.'

That clears that up.

Actually, it says ' . . . the right to bear arms, but not concealed or ugly-looking, shall not be infringed.'

Which was amended again to read, '. . . the right to bear arms, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'

Again, amemded to read, ' . . . the right to bear arms, except on Monday, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'

Later amended to read: ' . . . the right to bear arms, except during the month of December, but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.'

Amended again to read: ' . . . the right to bear arms, except during years ending with an even number and all months which are spelled with an a,e,i,o, or u; but not concealed or ugly-looking, or exceeding 49 caliber, shall not be infringed.

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Are you saying that State and local governments are bound by the Second Amendment or not bound by it?

That issue is being addressed constantly with the SCOTUS and the District Courts throughout these United States.
My take is that the Bill of Rights says to keep hands off.

I think we are getting side-tracked. The intent of the 2nd Amendment (as I read it) was to 1) provide a necessary institution (the militia) for national security and 2) to prevent the government from disarming the people (who make up the militia). What does a militia do from a constitutional perspective? 1) It defends us from foreign invasion 2) it ensures the enforcement of our laws and 3) provides an offsetting power to the government's army in the event that the government should endanger our liberties. Whatever weapons needed to perform those missions are what is protected (simple analysis, I know, but logical and I believe faithful to the historical meaning of the BOR).

From etymonline.com

arm (2) - "weapon," 1300, from O.Fr. armes (pl.), from L. arma "weapons," lit. "tools, implements (of war)," from PIE base *ar- "fit, join." The notion seems to be "that which is fitted together." Meaning "heraldic insignia" (in coat of arms, etc.) is 1330; originally they were borne on shields of fully armed knights or barons. The verb meaning "to furnish with weapons" is from 1205. Arms race first attested 1936.

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Privateers were utilized as sea-going malitia. The Letters of M&R were nothing more than authorizing them to use "piracy" against pirates, the British Fleet, or any other enemies we faced before putting together a formidable Navy. This would be pretty much the same thing as the FedGov hiring bounty hunters to go after Osama. Pretty much, although different in mission, to temporarily deputizing civilians to help with a county law enforcement effort.

True, but they considered what they were getting. In deputizing the vessel and crew (which is the defacto setting for the letters), they knew that they would be bringing along the deck guns. Kind of like granting letters of marque to a group that owned armour. You get the main gun along with the crew, even though you didn't specifically ask for it.

Instead of Privateers, which after all could be considered as naval auxiliaries, look at the fur trade in the 1800's to 1840's. Many of the fur companies armed keel boats with swivel guns and used field guns at their trading forts. Admittedly these were relatively small bore, but they clearly are not SMALL arms. These weapons were purchased privately by individuals or companies, and were not in any way associated with local or state militias or the federal government.

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