Ashcroft and the Second Amendment

The Attorney General was asked a question at a Congressional hearing: "What in your opinion would be the constitutionality of a provision added to this bill which would require registration [of firearms]?" His answer: "I am afraid it would be unconstitutional."

The year is not 2001, but 1934, and the Attorney General is not John Ashcroft, but Homer Cummings. Cummings was hardly the first to think there were constitutional barriers to gun control. Throughout the nineteenth century, leading scholars like Thomas Cooley, Joseph Story, and St. George Tucker had found the Second Amendment protected an individual right to arms against federal interference. Congress agreed: the 1866 Freedmen's Bureau Act provided that "the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens."

Leading modern scholars of constitutional law agree. Laurence Tribe of Harvard has written that the Second Amendment protects an individual right. So have William Van Alstyne of Duke, Eugene Volokh of UCLA, Randy Barnett of Boston University, and many others. 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 nineteenth century counterpart: the 1986 Firearms Owners' Protection Act found that "the rights of citizens to keep and bear arms under the second amendment to the United States 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, though admittedly in dictum, lumped the right to arms together with clearly personal rights like free speech.

Despite this, Attorney General John Ashcroft's recent statement that the Second Amendment protects an individual right was treated as a lurching departure from settled law by some. Yet Ashcroft's interpretation sits rather comfortably with the mass of opinion from other branches.

The chief opposition to the individual-rights view 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 individual right view leaves room for reasonable regulation, so long as that regulation is really about preventing criminals from getting guns, not disarming ordinary citizens. (I myself have written that gun registration wouldn't violate the Second Amendment). But 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 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 only protects 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 factfinding on the issue of whether a sawed-off shotgun was the kind of weapon the Second Amendment protects. Whatever Miller did, it did not endorse the "National Guard" theory.

The lower federal courts are a different story. The lower courts' resistance to the individual-rights view has, at least until recently, been widespread, and those criticizing Ashcroft's position have been quick to point to these decisions 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 Brannon 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 Court's 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 in series is to see lower courts progressively and unashamedly moving the goalposts 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 U.S. Court of Appeals for the Fifth Circuit agreed with this last month when it essentially adopted Professor Denning's criticism of other lower court decisions and held that the Second Amendment does in fact protect an individual right. In response to this decision, Michael Barone noted that "It will now be very hard–I would say impossible–for any intellectually honest judge to rule that the Second Amendment means nothing."

On analysis, therefore, 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 interpretation of the Second Amendment isn't nearly as important as gun-control advocates believe.

The Bill of Rights is NOT an inclusive list of The People's Rights. In fact, the original idea of the Constitution was to only have a list of the specific Powers of the Federal Government. It was understood that every other Power would be reserved by the States and The People.

The anti-Federalists didn't like this arrangement of an "implied" understanding. Consequently, they demanded that an explicit list of Rights (modeled after Great Britain's "Rights of Man") be included in the Constitution. It was not ... but a promise was made to address such a list of Rights (as amendments) only if the anti-Federalists would ratify the Constitution as-is.

The anti-Federalists kept their promise and ratified the Constitution. However, during the First Congress, the Federalists threatened to go back on their promise by simply ignoring the pleas of the anti-Federlists (who were in the minority by a long shot).

If it weren't for James Madison (a Federalist), we may never have had a Bill of Rights. Madison was wise enough to know that the symbolic gesture towards the anti-Federalists (of keeping a promise to address their concerns) was more important than the end product. Madison, like most Federalists, continued to believe that a Bill of Rights was unnecessary. But he entertained the consideration of an enumeration of Rights in order to help keep the infant republic together.

The Federalists despised Madison for doing this, but in retrospect it was the right thing to do -- i.e. the right thing to do in order to help keep the early nation together. However, the Federalist concerns over a Bill of Rights were quite valid and have been borne out over time.

Specifically, the Federalists had two problems with a list of Rights:

It was redundant/unnecessary because the enumerated Powers of the Federal Government was inclusive. Therefore, it was not necessary to specifically say people had a "right to free speech" since the Federal Government was not given the Power to restrict speech, etc.;
An enumeration of Rights gives the illusion of the Federal Government "giving" The People something; and by having a (necessarily) finite list of Rights, it might be interpreted as inclusive/complete (much like the enumerated powers of the federal government).

And indeed, the Federalists would be right. The original understanding of our Form of Government was as follows:

Federal Government Powers -- Unless Specifically Permissible (listed/enumerated), It is Prohibited.
The People's Rights -- Unless Specifically Prohibited, It is Permissible.

...contrast that with today's practical understanding of the scheme of things (inverted):

Federal Government Powers -- Unless Specifically Prohibited, It is Permissible.
The People's Rights -- Unless Specifically Permissible (listed/enumerated), It is Prohibited.

And the Bill of Rights plays right into the modern lie of the Federal Government "giving" the people a list of what is "specifically permissible."

So, how does this relate to the Second Amendment?

Even if the Second Amendment implied a collective (State) right (which it doesn't), it wouldn't matter.

Why? Because the Bill of Rights is NOT an inclusive list of The People's Rights.

Individual gun ownership would be a Right retained by The People even if the Second Amendment did not exist by virtue of the fact that the enumerated Powers of the Federal Government does not give the Federal Government the Power to restrict/prohibit that Right. In other words, we come full circle to the original Federalist argument against a list of Rights. As they warned would happen, such a list of Rights has been turned against us -- i.e. such a list is now interpreted as being inclusive and complete (i.e. comprehensive).

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