Whose Right on Bearing Arms? [Pro and Con on Second Amendment's Reference to an Individual Right]

The Attorney General of the United States is asked during a congressional hearing: “What in your opinion would be the constitutionality of a provision added to this bill which would require registration of firearms?”

This year is not 2001, but 1934, and the attorney General is not John Ashcroft, but Homer Cummings. Cummings was hardly the first to think that there were constitu9ional barriers to gun control. Throughout the nineteenth century, leading scholars such as Thomas Cooley, Joseph Story and St. George Tucker had found that the Second Amendment protected an individual right to bear arms against federal interference.

Congress agreed: the 1966 Freedman’s Bureau Act – designed to ensure that freed slaves enjoyed full constitutional rights – provided that “the constitutional right to bear arms shall be secured to and enjoyed by all of the citizens.”

Leading modern scholars of constitutional law agreed. Harvard law professor Lawrence Tribe has written that the Second Amendment protects an individual right. So have Williams van Alstyne of Duke, Eugene Volokh of UCLA, Randy Barnett of Boston University and many o4thers. They also agree with Ashcroft’s statement that this right does not bar reasonable regulations aimed at preventing crime rather than disarming honest citizens.

The twentieth century Congress agreed with its nineteen century counterpart: the Firearms Owners Protection Act passed in 1986, found that "the rights of citizens to keep and bear arms under the Second Amendment to the Constitution “ required additional legislation for their protection. An accompanying Senate Judiciary Committee report on the Second Amendment stated that "what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

And in several cases – some quite recent – the Supreme Court has lumped the right to bear arms together with clearly personal right like free speech.

Despite this, Ashcroft’s statement last summer that the Second Amendment protects an individual right was treated by some as a lurching departure from settled law. Actually, Ashcroft’s interpretation sits rather comfortably with the mass of pinion from other branches.

The chief opposition to the view that bearing arms is an individual right comes from gun control advocacy groups. I’ve never quite understood why gun control groups have felt it necessary to adopt an absolutist “no- right-to-bear-arms” position when it is clear that the Second Amendment leaves sufficient room for reasonable regulation – that is if regulation is really about preventing criminals from getting guns, not disarming ordinary citizens.

By such absolutism is one of the dynamics of our ongoing culture war – on the left as much as on the right.

Some critics of Ashcroft’s view have claimed that it conflicts with the United States v. Miller, the 1939 Supreme Court case that is its only opinion directly addressing a Second Amendment argument in the past hundred years. Miller, we are told, makes clear that the Second Amendment protects only the National Guard.

There are two major problems with this argument. One is that Miller never mentions the National Guard. The other is that the only action actually taken in Miller was to remand the case back to the district court (which had previously held the National Firearms Act unconstitutional on Second Amendment grounds) for fact-finding on the issue of whether a sawed-off shotgun was the kind of weapon the Second Amendment protects.

The lower federal courts are a different story. The lower courts’ resistance to the view that bearing arms is a Second Amendment right has been widespread, and those criticizing Ashcroft’s position have been quick to point to these decision as evidence that Ashcroft is somehow off the reservation. Yet on closer examination, the lower courts’ opinions are less persuasive.

In a recent article, Professor Brandon Denning of Southern Illinois University Law School analyzed all the lower court decisions on the Second Amendment and concluded that “lower courts have strayed … from the courts’ original holding to the point of being intellectually dishonest."

Many lower courts in fact have endorsed the National Guard theory. Of course, many of them also claim that Miller did the same which it clearly did not, and to read these opinions is to see lower courts progressively and unashamedly moving the goalpost in order to ensure that – regardless of the arguments offered by counsel – no one could possibly succeed in a Second Amendment challenge. This line of cases is no great testament to the rule of law

The US Court of Appeals for the Fifth Circuit agreed this last month when it essentially adopted Dennings’ criticism of other lower court decision and held that the Second Amendment does in fact protect an individual right.

On analysis, however, it appears to be the lower federal courts (except, now, for the Fifth Circuit) who are out of the mainstream on this issue. So are the gun control groups who so vigorously invoke the lower courts’ opinions to deny any possibility that the Second Amendment – which is after all, one-tenth of the Bill of Rights – does anything so uncouth as to create an enforceable Constitutional right.

Glenn Harlan Reynolds is Professor of Law at the University of Tennessee and writes for the instapundit.com website.

The Founders meant ‘the Militia’

Attorney general John Ashcroft opened his public letter to the National Rifle Association last May with this comment: “let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the rights of individuals to keep and bear firearms.”

Just last month, Ashcroft’s opinion was seconded by two judges on the Court of Appeals for the Fifth Circuit in New Orleans. Their majority decision in the case of United States v. Emerson asserted that the Second Amendment does indeed protect the bearing of arms as an individual right. Although this part of their decision was legally irrelevant to that case (as the third judge archly noted in his concurrence) it was read as a small triumph by opponents of gun regulation.

Historically, the Second Amendment has been viewed as a right limited to those who served in an organized lm9litia governed by federal or state law. This was the position taken by the Justice Department in the Emerson case and it has been supported by the Supreme Court precedent dating to 1939 when the court ruled in United Sates v. Miller, that there is no constitutional right to own a sawed-off shotgun because it has no “reasonable relationship” to the preservation of a well regulated militia.

Most of those who now argue otherwise, including our attorney General, would encourage the Supreme Court to review its 1939 decision in the hope that it will then erect constitutional barrier against legal regulation of firearms.

But in fact, the historical evidence provides far less support for the idea that the Second Amendment establishes an individual right than the opponents of firearms regulation claim. Their position is vulnerable to criticism on several fronts.

First, at no time during the constitutional debates of 1787 through 1791 was the individual right to own and use firearms the direct subject of discussion. What was always at issue was the future status of the militia under a constitution that empowered congress to raise an army and enact laws for “organizing arming, and disciplining the militia” of the states.

Second, the adopters of the Constitution and the Bill of Rights believed that state and local governments had substantial police powers that they could use vigorously in behalf of public safety. Had they imagined firearms becoming as devastating as they are today, they would have agreed that local governments could regulate their use and ownership in the interests of public health.

But most of the recent debate is concerned with deciphering the text of the amendment. Here, what is striking is the inconsistent and problematic ways in which defenders of a right to bear arms read two key words.

The first point in contention is the word “people.” Advocates of a right to bear arms insist that whenever the constitution speaks of the rights of the “people” it is speaking of all individuals. But the constitution is not that consistent. The first right is protects – the fundamental right of representation – appears in article I of the original constitution. There we learn that the House of Representatives will be “chosen … by the people of several states” by the actual right of suffrage belongs to a subset of “electors” top be determined by state law.

But opponents of gun control adopt a different method in reading the other key word – “militia.” If they define that term as it appears elsewhere in the constitution, they would have to recognize that the militia is an institution under the regulation of Congress and the states, and their legal authority would include deciding the extent of its membership.

Instead, they propose an extra constitutional definition. In ordinary usage, they argue, the militia was regarded as the whole free adult male population capable of bearing arms.

That was the definition the amendment’s framers must have had in mind, they say, even though the militia clause of Article I of the constitution suggest otherwise.

First, it is much closer to the ideas of the anti-federalist opponents of the constitution than to the views of the federalists who wrote and ratified it and who also firmly controlled the Congress that drafted the Second Amendment.

Second, the Amendment, as first approved by the House, did place the qualifying phrase “composed of the body of the people” immediately after "militia.”

But the Senate deleted that phrase. Opponents of gun control say that the Senate eliminated the phrase because it was redundant. But federalists dominated the Senate, even more than the House and their ranks included a number of man w ho did not want to limit the national government’s ability to redesign the militia as it saw fit.

The best reading of the second amendment, I believe, would recognize that it was designed to oblige the national government to maintain and support the state-based militia as part of the overall defense establishment. It would therebyprevent the national government from relying solely on the dreaded “standing army,” which many Americans believed would be inimical to liberty.

At no point in these debates did discussion ever focus on the individual right to bear arms. To maintain otherwise is to accept the distortions that the opponents of gun control have been trumpeting for the past two decades.

Jack N. Rakove is Coe Professor of History and American Studies at Stanford University. He won the 1997 Pulitzer Prize for “History for Original Meanings: Politics and Ideas in the Making of the Constitution.”

This is a silly argument. Article I section 8 already does this. The Second Amendment is an amendment, so it supersedes the rest of the Constitution. If the Senate had left in the phrase "the whole of the people" the anti-rights crowd would now be claiming that that proved that they did *not* mean "individual" rights.

Up until modern leftists, the idea that a person would not have a right to bear arms wasn't even considered. To the founding fathers, an individual right to bear arms was unquestioned. They saw no reason to define the equivalent of the water is wet. But they could foresee states trying to restrict rights in the future, and for this reason they did write out the Bill of Rights.

Second, where do leftists get the idea that a government needs written "rights" to do whatever the hell it wants to? The Bill of Rights was not written to give rights to the state, it was written to ensure rights held by people were retained by the people and not taken by the state.

Personally, I do not believe the state can have rights. The state can only have responsibilities, or powers. Sometimes it is given the responsibility or power (Provide for the common defense...) but more often than not, it simply assumes responsibilities whether it should or not. With perhaps one exception (10) the original Bill of Rights deals with explicitly spelling out what rights people have, not the state. Even the 10th amendment recognizes that powers not delegated to the states are retained by the people, in other words, the people retain the right to delegate powers to the state.

Rights are something that only people may possess! They are God-given, and intrinsic to the nature of humanity and being.

Leftists do not believe people should have rights. Leftists believe that we are a society of ants, and each member must be subjugated to the greater good of the state. Even as they bleat support for their favorite "right", the First Amendment, leftists give the state responsibility and power over it under the guise of maintaining fairness, or politically correctness, or by calling it hate speech...and then forbidding it.

Leftists know what rights are, and hate them, because they don't figure into their little conception of the world being run as they see fit.

To be fair, many conservatives misread the Bill of Rights as badly as Leftists when it comes to the 9th amendment, which says that just because the founding fathers didn't enumerate a human right doesn't mean it doesn't exist. I do believe there is a right to privacy, and a right to be left alone.

I believe there is a right to abortion, not because a woman has the right of choice, but because the fetal human has a right to life(another non-enumerated right which falls under the 9th amendment) that trumps that non-enumerated right of choice. So how do I believe in abortion? There are some cases where your right to life trumps another...if someone places you in harm's way, you have a right to self defense, enumerated in the Second Amendment. There are rare, very rare, times when a pregnancy will cause physical harm to a woman, and she has a right to defend herself. I would call a therapeutic abortion justifiable homicide. But I digress.

More interesting question to me than what rights we humans are God-given is whether the order of these rights can be set by man.

Historically, the Second Amendment has been viewed as a right limited to those who served in an organized
[militia] governed by federal or state law. This was the position taken by the Justice Department in the Emerson case and it has been supported by the Supreme Court precedent dating to 1939 when the court ruled in United Sates v. Miller, that there is no constitutional right to own a sawed-off shotgun because it has no “reasonable relationship” to the preservation of a well regulated militia.

I see two problems here:

1. The Justice Department referred to was the Klinton/Reno Justice Department. 'Nuff said?

2. If I'm not mistaken -- I could be -- the Supreme Court didn't "rule" about shotguns and militias in the Miller case but, instead, remanded it to the lower court for a decision about whether a sawed-off shotgun could be used as a weapon for the militia. Miller didn't show and the government got a default judgment. Hence, the matter was never truly settled. (Obviously, a sawed-off shotgun would be a perfect weapon for close quarters fighting or even guard duty by a militiman.)

PS: thanks for the all the work in typing this up for us.

America's Fifth Column ... watch PBS documentary JIHAD! In America
Download 8 Mb zip file here (50 minute video)

"Any mistakes are mine. Comments?"

I must disagree--the article contains LOTS of mistakes, all on the part of the authors, and all concerning historical facts.

To pick just one "First, it is much closer to the ideas of the anti-federalist opponents of the constitution than to the views of the federalists who wrote and ratified it and who also firmly controlled the Congress that drafted the Second Amendment."

Obviously the writer(s) failed to understand that the passage of the Bill of Rights was done EXPRESSLY to address the concerns of the anti-federalist portion of the population, and without it, the Constitution itself would never have been accepted. Thus it is perfectly acceptable to look to anti-federalist thought and writings to correctly understand the BILL OF RIGHTS--which is where the right to keep and bear arms is protected--NOT to the base text of the Constitution and to the promoters thereof.

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