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.

I accept that as sounding about right. I have read commentaries and heard discussions of Miller, but I have never read the text of the decision itself and on important matters I generally like to see for myself what is stated.

Well then Have at it and then get back to us with your findings. If you are honest, you'll see that Miller doesn't have anything to do with "discriminatory" or "nondiscriminatory" weapons. Claymore mines would fit the Miller Courts definition of weapons whose keeping and bearing is protected by the Second Amendment. Now reckless use or misuse of any weapon is not protected, only their keeping and bearing, just as neither libel nor slander is protected by the first amendment. (Something the folks at CNNTimeWarner should keep in mind)

All things considered, I figure the Second Amendment applies to any weapon an infantryman might carry.

Why restrict yourself to those. Larger weapons cannot be literally borne, but they can be kept. Private ownership of ships mounted with cannon was hardly uncommon. The Constitution itself, even prior to passage of the Bill of Rights, recognizes this when it grants Congress the power to Grant Letters of Marque and Reprisal. (The former authorize private citizens to attack shipping and warships of the nation's enemies. The latter is similar, but on land. We need a letter of reprisal with Osama's name on it. The private sector would have his head on a pike in short order, provided the reward was good enough).

Mentioning reward reminds me of the other role of the armed citizenry, other than individual self defense, that being as part of the Posse Commitatus.(usually shortened to just Posse). When called by the Sheriff, citizens were (and are) expected to turn to in order to enforce the law, catch criminals and so forth. This is distinct from the military defense role of the militia, even when not federalized, but is similar.

"Well then Have at it . . ."

I was reading it just a little while ago. As you will see in my earlier post, it's the National Firearms Act that is clarified in the Miller decision.

If you need basic info on the act, check out Gunrunner.com's brief overview. If you want more detail then see ATF National Firearms Act Branch Page.

I don't think anyone can argue that the ownership of some types of weapons is discriminatory under current law given what is on the ATF NFAB page.

oops! correction of language needed for previous post!

I wrote:

"I don't think anyone can argue that the ownership of some types of weapons is discriminatory under current law . . ."

That should read:

"I don't think anyone can argue that the ownership of some types of weapons is not discriminatory under current law . . ."

Sorry about that.

For example, muskets were the pinnacle of firearms technology, and were used by both soldiers and hunters,

Actually rifles were not unknown, and were used by some units on both sides of the Revolution. They were not though suitable for the common solider, because until the invention of the Minie ball, they were very slow to reload. The ball, which fit tightly against the lands of the rifling, and down into the grooves a bit as well, had to literally be pounded down into the barrel.

the National Guard does not qualify as a state militia. The National Guard is under the command of government officials. In the legal tradition of the Framers, this makes it a standing army.

Actually, they would have considered it a select militia, although it doesn't fit their model of such exactly. They are militia because they are not full time soldiers, as the members of the standing army are. The Framers, for the most part, did not think too highly of a select militia either, but for reasons that probably mostly don't apply to the National Guard of today.

Something few think about is supposing the Second Amendment wasn't referring to arms in the hands of Citizens

It says "right of the people". "The people" includes at minimum the citizens. Of late the courts have stretched the definition to include some non citizens (legal resident aliens) and even illegal aliens in some circumstances. (Not the second amendment of course, Courts, especially the Supreme Court, avoid it like the plague).

When the Constitution was written there was no standing army or National Guard such as there is today.

Not true, there was a very small standing army, even under the Articles of Confederation. The Constitution, which predates the Bill of Rights by a few years, granted Congress the power to Raise and Support Armies (plural, thus our "Air Army" that we call the Air Force is Constitutional. A Navy (singular) is also provided for, and without the restrictions on biannual funding that apply to the Armies. In actuality, Congress funds all the services on an annual basis. (More control for them, more hearings where they can blow smoke, etc. They even have a double process where the money must be appropriated, and then authorization to spend it must be given. That means two sets of committees (more power and perks again) in each House. Generally an appropriations subcommittee and then a full committee on the Armed Services which handles the authorization. And of course more Bills Which Must be Passed, that they can use to hang pet projects and hold over the head of the President.

As we type, the Congress is playing games with the supplemental appropriation needed to fund the current War. The Army has announce Draconian cutbacks in "non essential" spending (including travel, spare parts for non deploying systems, and so forth) in order to continue getting beans, bombs, and bullets to the troops at the sharp end.

Mark Twain had it right, Congress is the only native Criminal class the US has.

<< The FRamers understood that the document would be modified over time if it was to remain relevant.

Typical lib BS. >>

Yep.

Absolutely.

And as demonstrative as its author's intellectual and moral bankruptcy and of the content of her character as is her inability to understand the crystal clarity of "the
right of the people to keep and bear Arms, shall not be infringed."

What's the bet she can, viewing it as she obviously does through the Liberal Psychosis' distorting lens, also find the "right" to willy-nilly slaughter infants among our Constitution's other crystal clarity ?

<< ... the 2nd Amendment clearly supports an individual right, not a collective one. >>

Not to argue with you nor to diagree with the thrust of your contention, the entire document rather absolutely forbids congress from taking certain actions than provides "rights," individually of course, to the rest of us.

Every American's Individual Rights derive not from the actions of congress -- nor yet even from our Constitution and/or other Founding Law -- but from a higher and more noble authority.

I'm not in favor of any gun control except that which keeps military hardware (not guns) out of the hands of individuals.

With all due respect. That is a very good reason to be for passing an amendment granting the federal government the power to infringe upon the right of the people to own those weapons that you do not favor. It is not a reason to interpret the 2nd Amendment in that way.

I sat down and counted out on my fingers to make sure I got it right and discovered I was one "Great" short. He was my "Great-Great-Great-Great Grandfather."

There's been a lot of work done on Cajun and French ancestry here in Louisiana over the past twenty years or so and I was able to pick up his story one day by simply walking over to a table at a big public event that reunited numerous Cajun families here in Lafayette, Louisiana about five or six years ago. I knew he was my ancestor already, because he was a big name as a founder of several towns in Lafourche and Terrebonne Parishes and he was the kind of person a family would want to claim. I saw the name, and when I read the "tree" underneath him I noticed that his grandaughter, my Great-Great Grandmother, had nothing branching out from underneath her on their published "tree." They had her marriage listed correctly, so I simply pulled out the big family tree I was carrying on poster paper for my Grandmother's family and let them fill in the rest, making sure that they got the documentation notes to verify what I gave them.

That was when I found out that he had been with Jean Lafitte at the Barataria Bay site. That was about 50 to 60 miles from where my Grandmother grew up. I collected the information, xeroxing some key papers, and brought it all back to everyone in the family. They loved finding it out.

Citizens need guns for self protection and to keep their government afraid of them.

I've just read through this thread and am completely amazed that you four folks are the only FReepers that have touched on the real reason for the 2nd Amendment.

Like all of the other nine the 2nd is to enable us to protect ourselves from OUR OWN GOVERNMENT. Many folks believe that it was included to insure we always had fresh meat on the table at mealtime....or that we could call up the militia in case of a national emergency or invasion.

The framers knew.....and the States verified....that the people needed some assurance that their newly formed Republic would not blossom into some kind of a tyrannical, uncontrollable, monster.....like a democracy. Thus, the Bill of Rights. In the first ten amendments the people were assured protection from their own government....and the States ratified it.

We so seldom hear this reason given and unfortunately most folks just look at you with glazed eyes when you mention it. Such a shame. Thank you for reminding us of the reason for it all!

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