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 just noticed this mendacity. Neither of those was a second amendment ruling. The first was the "not incorporated" dodge, the second was merely saying that taking away rights of convicted felons does not violate their rights. They can have many of their right restricte, infringed and violated in their entirety, according to the Court.

Now I don't fully agree with either ruling. The history of the 14th amendment clearly indicates it was intended to apply the Bill of Rights, most especially the Second Amendment, so it should invalid New Jersey's draconian gun laws.

Secondly, WRT Lewis, while felons most certainly can be deprived of rights, it must be done via individual due process, not as an ex post facto law covering all felons, regardless of their crime, when they had been convicted, whether they had completed their full sentence, etc, etc.

". . . Do you deny that you wrote that it is the National Firearms Act that limits what arms private individuals can own? --- And did you not post that the NFA does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on? . . ."

First; let me quote you what I wrote in my post #253 above (scroll up and read it, I really did write this):

". . . You seem to insist that I cannot distinguish in my posts between what the law is or how the law actually is interpreted and what the law should be or how it should be interpreted, demanding repeatedly that I only stick to the latter tact. That is ridiculous."

So please pay attention and let me spell out the difference for you.

No. 1: WHAT THE LAW IS OR HOW THE LAW IS ACTUALLY INTERPRETED--

When I refer to the above, I mean how the law is actually enforced in practice. To put this another way, I refer to how you would see the law applied if you were to go into a court of law.

No. 2: WHAT THE LAW SHOULD BE OR HOW THE LAW SHOULD BE INTERPRETED--

When I refer to this second distinction I mean how the law should be enforced in practice. To put this another way I refer to a "normative" expression of the law, how the law would be enforced if it were interpreted correctly.

Now you posted that I wrote in my post:

". . . it is the National Firearms Act that limits what arms private individuals can own, and it is enforced every day of the year. . . ."

And that in that same post I also wrote:

". . . Therefore the only limitations upon which arms a private individual can own are those defined under the National Firearms Act"

Yes; I posted both statements and I also quoted Guncite.com dealing with the same thing I was addressing; namely, what the law is or how the law is actually interpreted by the courts. And it is a fact that the ATF maintains its National Firearms Act Branch 365 days a year and that in every federal court in the United States of America the National Firearms Act is recognized as the law of the land. If you want to contest this as a fact, then tell me that the National Firearms Act is NOT recognized as the law of the land in the courts and we'll go from there. Because I don't think anyone can deny that it IS recognized and that the courts DO enforce it.

That is a separate question entirely from dealing with what the law should be or how the law should be interpreted. In numerous posts on this thread I have dealt with problems of the constitutionality of the National Firearms Act. To put that another way, I have dealt with what I believe to be -- pay attention now, this is important -- a violation of constitutional principles in the way the National Firearms Act was written AND in the way it is enforced. In my posts #s 236, 238, and 246 I presented an argument to Dead Corpse that the Texas case English v Texas established a precedent that was ignored in the National Firearms Act, the significance of which I summed up in my statement to Dead Corpse in #246 that "You claimed that the NFA was unconstitutional because it denies an individual the right to possess the weapons of a militiaman. I cited English v Texas as an example of case law that says you're right." I pointedly said that legal precedent that should have prevented the federal government from passing and enforcing the National Firearms Act was ignored. This is part of my discussion of what the law should be or how the law should be interpreted, in my opinion of course.

I also did more than that to present my own arguments on what I view as the unconstitutionality of the National Firearms Act. In my post #233 I made several points about how the law should be interpreted, including the following two comments:

". . . 2. The "right of regulation" given to the federal government is NOT a right to regulate individual gun ownership . . ."

". . . 4 . . . And I will add here that I have already stated in an earlier post that even though the National Firearms Act establishes the fact of federal government regulation of individual arms ownership, that those who argue that this goes beyond the intent of the framers have a logical case to put forth for the reason I give in this point. . . ."

And finally, before beginning my presentation of the argument on the unconstitutionality of the National Firearms Act, in fact the comment which led to my making it, in my post #213 to El Gato I said "You do have a good argument to make that a challenge to the NFA can be made on constitutional grounds . . ."

What I have done is to distinguish the fact of the passage and enforcement of the National Firearms Act (the way the law is interpreted) from its constitutionality/unconstitutionality (the way it should be interpreted). And I directly asked you to recognize the distinction, but you seem incapable of doing so.

With that in mind, I would like to propose the following solution for you. It's a simple exercise that might help.

Close your eyes and repeat after me:

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There! That should help.

It doesn't matter what I contend the State of Texas can or cannot do. What matters is what the laws on the books actually say the State of Texas can or cannot do.

Practically speaking, and in the short term perhaps. But if we are to remain a nation of laws, the government, local, state and federal must obey the law as well. That includes the highest law.

The Texas Constitution does allow the Legislature "to to regulate the wearing of arms", but Article VI of the federal Constitution makes that Constitution supreme. So, if the 14th amendment applied the protections of the Bill of Rights against the states, and that was clearly the intent as understood both by its proponents and opponents, then the Second Amendment over-rides that power granted to the the Texas Legislature by the state's Constitutution.

The Suprem Court itself has stated that law which are in violation of the Constitution are no laws at all and no one is obligued to obey them, no court may enforce them.

"All laws which are repugnant to the Constitution, are null and void." Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176

5. If the word "regulated" in the 2nd Amendment referred ONLY to efficiency, then the adjective well placed immediately before it becomes redundant. But as I stated above "regulation" in the intent of the framers referred to "disciplining" (Art. 1, Sec. 8) or "direction" (Federalist #29), which means much more than "efficiency." It is the insertion of the adjective to modify the term as "well regulated" that changes its meaning from simply "disciplined" or "directed" to "efficiently disciplined" or "efficiently directed."

Nice try, but try looking up other common uses of "well regulated" more or less contemporaneous with the passage of the second amendment. It was a "term of art", used in may contexts to mean "properly functioning" or "fit for its intended purpose". The two words together meant more than the sum of their parts. Even today the phrase doesn't mean Controlled by government Check out this Abstract of a Scientific paper which says in part:

Interpretive Summary: It has been known for years that lipid stores are well regulated. Recently a new hormone termed leptin, which is secreted by liver and fat tissue has been identified in birds. It is known that leptin is involved in appetite regulation as well as energy metabolism in mammals. When administered into the brain of mammals, food intake is inhibited. Whether similar functions can be attributed to leptin in poultry is unknown. The study reported herein investigated the effect of centrally administered leptin on food and water intake in meat-type and egg-laying chickens. It was observed that leptin injected in a dose-dependent manner inhibited feed intake in both types of chickens. This effect was specific for food as water intake was unaffected. The results of this study strongly support the hypothesis that leptin is an important integrator of appetite in birds. The results are of interest to other scientists.

Somehow I don't think that any government rules or laws are affecting the lipid stores of chickens.

Or This one Which states in part

Some of us are blessed with a well regulated appetite and the ability to balance our energy intake and expenditure

Substitute your definition of well regulated, that is restricted by rules, and the "properly functioning" definition, for "well regulated" and see which sort of militia you'd want to trust your security to, one hemmed in by rules designed to lesson it's capability as a miltary force, or "properly functioning" one. I think the answer is obvious.

Art. 1 section 8 does not speak of regulating the militia, but rather "To provide for organizing, arming, and disciplining, the Militia" Organizing meant setting the size of units, how many of each type, and so forth. Disciplining did not mean punishing, but rather providing common drills and procedures, what we would call standards today. Arming of course is obvious. But note the Congress wasn't given a mandate to arm the millita, but only to provide for that arming. In the event they did so by passing laws stating what sorts of arms the militia should/must have, not what the members could have.

The other part of section 8 makes the part about disciplining somewhat more clear "reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;?

So by inference, it can be logically argued that the passage of the National Firearms Act of 1934 overturns a legally-established right, given substance in the English v Texas decision, for a person to possess the weapons of a militiaman as you had stated.

Now you are beginning to "get it". Now look up the US First Circuit court's "Cases" decision, from 1941.

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

But they recoiled in apparent horror from their own logical conconclusion, and went on to state:

However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. ... at any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

But that is exactly what the founders intended. Rights are not subject to governmental determination of a"legitimate reason" for exercising them.

So the proper question to ask me if you wish to contest my posting of the information in English v Texas is whether you think I got it wrong in stating, as I pointedly did, that the National Firearms Act may be considered unconstitutional for ignoring the precedent in this case. Do you think I got that wrong? If "yes," then say so.

"English" was decided by the Supreme Court of Texas, based on the provisions of the Texas Constitution, as it was generally considered that the bill of rights did not apply to the States, "incorporation" via the due process clause of the 14th amendment had not yet been invented (to reverse the various decisions ruling that the 14th applied none of the BoR to the states). Miller should have been decided on the basis of the federal 2nd amendment alone, but if you read it, it relies on state court decisions, which were decided based on state constitutional provisions, (Aymette v. State, 2 Humphreys (Tenn.) 154, 158.) Tennessee's Constitution protected the RKBA "for the common defense", a term which was proposed and rejected for inclusion in the Federal 2nd amendment. Thus on the basis of a provision of a provision of a state constitution, not included in the federal constitution, the court ruled that a "short barreled shotgun" was not useful for the common defense, and thus keeping and bearing it was not protected by the second amendment. But as i stated above this provision was explicitly rejected for inclusion in to what became the second amendment, so any interpretation of the 2nd which reasons as if the provision had been included rather than rejected, is incorrect.

First of all; "Disciplining" also carries with it a sense of authority and oversight, which is practically the definition of "regulation" as we use it today, although we tend to see it as an executive branch function and the founders saw it as a legislative responsibility. And the real thrust of "disciplining" the militia as provided for in Article 1, Section 8 was intended to provide "uniformity" among the various militia units as Federalist #29 makes clear.

Hamilton, generally considered to be the sole author of Federalist #29, is the only one of the founders we have -- unless you have another to offer -- who gives us his take on "regulation" and the militia and he makes very clear that "regulation" does refer to both "direction" and "discipline" as quoted here in Federalist #29, paragraph 2:

". . . This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia . . ."

Hitting the highlights, uniformity is accomplished by regulation under the national authority, therefore the plan for discipling the militia . . ., etc. Regulation is a concept of the delineation of authority, something which suggests the "properly functioning" concept you propose falls short in my opinion.

There is more in Federalist #29 that makes clear that the intention of the founders was that Congress was undertaking a duty to exercise its authority as the "guardian of national security" in regulating the militia.

From paragraph 3:

". . . If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security . . . ."

The phrase "under the regulation" is directly at odds with any argument that the founders intended "regulation" to mean solely an "efficient" or "properly functioning" type of relationship. Use of the word "under" alone refers to a relationship of authority.

The notion of "regulation" as implying authority is strengthened even further, later in Federalist #29 when Hamilton associates "regulation" with the word "command" and is further extended to envision the federal government "prescribing regulations" -- which can only mean "regulate" in the sense of authoritative management -- as stated in paragraph 9:

". . . What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, . . ."

Against all of this clearly-stated intent cited from the Federalist Papers I would have to ask for an accompanying counter from another authoritative source of the period speaking to the meaning of the militia clauses of the constitution to hold it up against and which suggests that there is no intent to regulate the militia other than to suggest maintaining its proper functioning. The stated goal in Federalist #29 was clearly a relationship of authority.

And El Gato, I do hope you caught the rest of my post #233 in which I made clear that the 2nd Amendment use of the term "well regulated" only recognizes that Congress has the power to regulate the militia as a collective body and that this does not extend to any power to regulate individual gun ownership.

First of all; I believe that neighbor must present some justification for having a 105 mm cannon. Am I right? Or are you presenting the application and acquisition process as a mere formality of filling out forms and purchasing a stamp before you take one home?

Some jurisdictions apply the law that way, but if you read it, what the local LEO sign off is supposed to do is pretty much the same as the current "instant check" does. That is to certify that you are not a criminal. There are proposals to either remove the discretion of the local LEOs, many of whom won't sign the form for anyone for any reason, except sometimes for friends who contribute to their reelection funds, or alternatively to replace it with a call to the "Instant Check" folks.

At the federal level, you do not need to justify why you want that cannon, or machine gun. At the federal level you submit the signature card, pay the tax, and after a ridiculous delay, get your stamp and can have the cannon or machine gun transferred to you.

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