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.

Try "five," at least.

You know....I believe when I started, yours had not been posted yet. I was interrupted for a few minutes and when I got back to the computer I did not notice your post. My apologies, and thank you for pointing it out.

I am completely mystified by the lack of Constitutional comprehension by the average citizen......but then, I am also mystified why people begin left turns before entering the intersection!!!! Go figure!

Yes, I realize that the people are specifically mentioned, El Gato. I was saying if they decided to be blind to that word when reading the Amendment and decided instead that the militia only could keep and bear arms, they couldn't be blind to the fact that the militia are the people, the Citizens.

It is certain the Amendment was written several ways before it was finally ratified, and at the time, the states included a version of it in their constitutions, so there was no mis-understanding at the time that the federal gummint did not have the power to get into gun control or dis-arm the population for any reason, but in fact, were given two reasons to stay away from the issue and not even think about it.

1 -- The right of the people to keep and bear arms shall not be infringed, and

2 -- The states needed to be sure the citizens were armed anyway to form a militia for the security of the state when needed. It was no big issue then, but apparently our wise founders looked down the road a bit and decided that the federal government could be corrupted by corrupt men during future years and took steps for the people to step in with a remedy if necessary. The Second Amendment, in a way, was a warning to the government to mind its 'p's and 'q's and stay within the bounds of its delegated powers.

After all, it was We the people who wrote the charter. Government did not write it's own ticket.

<< I am completely mystified by the lack of Constitutional comprehension by the average citizen......but then, I am also mystified why people begin left turns before entering the intersection!!!! Go figure! >>

OK!

Figgered:

Our nation's intersections are increasingly negatively influenced by the changing demographic consequential to 1965's and subsequent immigration policies that have seen to the bulk of all American immigrants [Now more than 96% of them] and migrants [Close enough to 100% to call it that] coming from non-Judeo-Christian/Roman/English/American Law governed third world states -- and whose cynical and totally ego-driven peoples' modi operendi is, on any given occasion and usually by engaging the services of one or another of their s**t-hole states' every bit as corrupt officials, [In America called, "lawyers," multi-culturalists, moral relitivists and the ACLU etceteras] to first break and to then get away with breaking the law.

On the other hand, the "lack of Constitutional comprehension by the average" American -- or as likely, these days, by the "average citizen" of any one of a couple hundred foreign lands, territories and/or said s**t-hole states, who, in the absence of any other worthy-of-the-name department, agency or institution, [Nature abhors a vacuum] appointed himself the master of his own United States Immigration Authority and policies, -- is the consequence of an even more sinister and insidious machination.

It is because said "people" are "taught" all about gummint in "schools" owned and operated by the gummint and staffed by card-carrying members of the vast Soros/Rich/Moscow/Socialist Internationale-supporting cynical criminal enterprizes that masquerade as the "Democrats."

Are taught, that is, that everything American is evil, that everything American is perverse, that everything American is to be hated, loathed, despised and feared.

Only beginning with our nation's Founding Fathers. And with its Founding Law.

" Liberals want to skip over that messy stuff and just arbitrarily change the meanings of the words."

Especially the liberal judges, re: the Mass. Supreme Court who arbitrarily changed the meaning and definition of a legally-defined word a year or two ago, setting the precedent for the court to continue doing just that because no one objected at the time except myself and a handful of other people around the nation who knew what the eventual consequences of that little trick were going to be.

As I said in a previous thread, even today, it's time we fired congress for farming out their job to another branch of government. Get rid of the middle-man, right? Was being sarcastic, of course.

Thanks. I'm amazed too.

I'm also amazed, absolutely stunned, that so many people do not realize that Western civilization is at peril. The Islamofascists and leftist are trying to destroy all of Western civilization and especially America.

Europe is dying, (and I'm a Europhile and Francophile, I love many things European and French (I lived there for years) right in front of our eyes, and I don't just love Europe for the cheese and wine, etc., but for the many things that are part of our civilized culture and society of law, science, arts, rational thought, good manners, etc. We were given and learned much from a great civilization, England (despite it's current faults as did much, if not all of the world).

What will happen to us if a Hillary, Gore, Kerry, Dean or other America, freedom, gun hating leftist "liberal" "Democrat" is elected POTUS? I think we'll die. Hillary is the end of the world, Gore, Dean, Teddy, not to mention scores of so called actors and "celebrities" (to name just a few) are raving mad/nuts.

Personally, I think the entire civilized world is in danger of dying right now under the onslaut of the Islamofascists. I think we're in real peril.

I hope I'm paranoid, but I think we're in the real deep doo doo.

I think there's going to be armed conflict in the US soon. I think Push is going to come to a very hard shove. I think a lot of people are going to die.

The left, the "Democrats" are all traitors or cowards who will appease us into the grave. The Muslims are all totally nuts.

Freedom is the most radical and revolutionary political idea in the history of the world. Many, if not most people are deathly afraid of it. They want their mommies and daddys to care for them. They want the nanny state. Taking care of themselves is too hard.

Yes, though I was speaking of the federal government specifically. The people, through their offical state designees of course, are the federal government.

The state is another matter, though I contend that if the federal government recognized the right of the people of the states to keep and bear arms and that right should not be infringed by the federal government, why do the people allow the state to turn right around and infringe those rights? Don't state gummints have a republican form of government that is controlled by the people of the state?

Since when did the people of any state give the state power to disarm the population or to get into gun control? They didn't. The state assumed that power over a period of time and the people didn't object too loudly -- or 'effectively.'

Seems kind of stupid for the people to tell the federal government not to mess with the people's right to keep and bear arms, and then the people turn right around and allow the state to do what it didn't allow the federal government to do.

There are actually quotes from the Founders speaking on exactly this subject. It was considered silly to even worry about it as the State had no power to legilsate away and enumerated Right. Still, the BoR was to be a basic list. More protections, not limits, were to be enacted as each State saw fit.

They have turned that 180 over the last 100 or so years.

"They have turned that 180 over the last 100 or so years."

That's the sad truth. And sadder yet is the probability that there are not enough people aware enough or who even care enough to reverse the damage. And if that be true, we have surrendered the right to life, liberty and the pursuit of happiness, and can only read about what once was on the remains of a barely legible ancient refrain scribbled an old parchment stained with patriot's blood. :(

This editorial turns into an interrogatory with an interesting conclusion about one of the intents of the 14th Amendment. The link in comment# 50 has Madison's, "Notes of Debates in the Federal Convention of 1787." The link in comment# 174 is "THE UNABRIDGED SECOND AMENDMENT." Both are excellent, IMHO.

Uncovering Iraq's Horrors in Desert Graves NY Times front page story on Monday!

An Upbeat Rumsfeld and Vietnam Agree to Broaden Ties

Appeasement By Any Other Name

From time to time, I’ll ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.

Though indeed it was in WW1, some shenanigans about who was allowed to testify happened in Miller

"Testimony" per se doesn't occur at the Supreme Court, which is not a trial court. Briefs are filed, the various lawyers present oral arguments, (but this can include "friends of the court", I think, in any event they can file briefs) and the Justices decide on the basis of those arguments, and the record of the case to that point. In the Miller case, the defense lawyer had moved to throw out the case because the law in question violated the Second Amendment, and thus was no law at all, and the trial judge agreed. Bang, Case dismissed. The government appealed *directly* to the Supreme Court, not through the Court of Appeals. No one appeared to argue against the government, including the NRA. Still the court, wanting to find for the government, ruled that the lower court erred in determining that keeping and bearing a short barreled shotgun was protected by the second amendment, *without* taking testimony or seeing evidence that such a weapon was suitable for use by a member of a Well Regulated militia, not that that the person protected needed to be such a member at the time of keeping and bearing. But since Miller was dead and his co defendant Layton choose to plead guilty in exchange for probation, there were no "further proceedings" at which such testimony could be heard, or evidence examined.

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