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Posted on 01/13/2003 1:14:14 AM PST by SteveH
From the Joyce Foundation newsletter, Work In Progress
Issue date: January 2003
Right Balance
"Gun rights groups have made it seem that the Second Amendment belongs to them. But it belongs to all Americans — we all need to understand what it means."
Getting a clearheaded understanding of the Second Amendment is a tall order these days. But scholars at The Ohio State University — with Joyce funding and the backing of an all-American hero — are taking up the challenge. The John Glenn Institute at OSU is creating a research center to help courts, scholars, journalists, and the public understand a little known area of our constitutional past that has huge implications for future public health and security.
"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": for two centuries that language was interpreted by the courts as "pretty much a nonentity, with little if any effect on public policy," says Glenn Institute director Deborah Merritt. Judges consistently held that the amendment protected state militias, to balance the powers of the new central government created by the Constitution. Laws regulating individual ownership and use of firearms were routinely upheld.
But understanding of the past is always shaped by the politics of the present. In the last thirty years, new research has been reinterpreting the Second Amendment as asserting an individual right to bear arms, similar to the rights of speech and religion protected by the first amendment. Some of the new studies are by legal scholars and historians, but much of it rests on scholarship by gun rights advocates with a clear political agenda. Relatively few studies have explored the alternative, "collective rights" approach; it was so widely accepted that scholars had little interest in examining it.
Although scholars are divided over how to interpret the Second Amendment, the new gun rights scholarship is having an impact. In a dramatic shift of federal policy and jurisprudence, a Federal Appeals Court in Texas and U.S. Attorney General John Ashcroft both recently cited the research in supporting an individual right to own firearms. On the other hand, a recent decision by the 9th Circuit Court embraced the dominant collective rights view. The conflict between these two courts makes it likely that the Supreme Court will take up the question in the next few years.
The individual rights position, if upheld, could have a profound impact on public policy, says Merritt, a former Supreme Court clerk. "It would depend on how the courts interpret the guarantee. At the extreme, it could eliminate all gun regulation. More likely, it would restrict what legislatures can do." Meanwhile, criminal cases all over the country are potentially affected. "Think of all the defendants who have weapons charges against them," says Merritt. "Any one of them could raise a Second Amendment issue now."
Helping the courts, lawyers, and journalists make sense of all this is a job for scholars. That's where the Glenn Institute comes in. Through conferences, a website, and educational outreach, its new Second Amendment Research Center will make available the best scholarship underlying both the individual and collective rights interpretations, says center director Saul Cornell, whose specialty is early constitutional history. It will also assemble historical resources, such as state and local firearms laws from the period when the amendment was drafted. "Boston in 1786, for example, had a law on its books making it illegal to have a loaded firearm inside the home," notes Cornell. "Clearly lawmakers in Massachusetts thought that an urban area could require safe storage — a law that, today, some argue, would violate the Second Amendment."
One extremely important question is whether firearms would be treated like speech, which triggers strict scrutiny by the courts, a judicial standard that might imperil many of the nation's gun laws. The center plans a conference in 2004 at which scholars on both sides would examine what standard of scrutiny follows from their interpretation.
With so much at stake, Merritt and Cornell understand that they're venturing into contentious territory. But they're cheerfully confident — and determined — about playing the role of honest broker for both sides. Otherwise there's no point in the exercise, says Merritt: "Judges are decision makers. You can't gain their confidence by being an advocate — they know all about advocates, they have them in their courtrooms all the time. They won't pay attention to a zealous website."
And there's a broader public purpose to be served, adds Cornell. "Gun rights groups have made it seem that the Second Amendment belongs to them. But it belongs to all Americans. We all need to understand what it means, what it precludes and does not preclude in terms of gun regulation." As Senator Glenn himself put it, the Center will "use scholarship to promote public understanding of an essential policy issue."
Deborah Merritt, Saul Cornell Glenn Institute, 614.292.4545 www.glenninstitute.org
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Joyce Foundation sponsored the closed, selective, invitation-only 2000 Chicago-Kent Law Review Symposium on the Second Amendment which featured several articles referencing Bellesiles' now-discredited _Arming America_. In turn, those articles were prominently cited in the 5th Circuit Court's US v. Emerson (2001) and (from the gun control activists' point of view, more successfully) in the 9th Circuit's collective-rights affirming interpretation in Silveira v. Lockyer (2002).
See also
http://www.joycefdn.org/programs/gunviolence/gunviolencemain-fs.html
for a higher level perspective of the Joyce Foundation's gun control activities.
Gun control articles can be found here
http://www.joycefdn.org/programs/gunviolence/gunviolencearticles-fs.html
Also see the following, from
http://www.joycefdn.org/articles/gunarticles/0105whoseright.html
From the Joyce Foundation newsletter, Work In Progress
Issue date: May 2001
Whose Right
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. — U.S. Constitution THE CHICAGO-KENT COLLEGE of Law hosted a symposium last fall in which leading scholars (including Pulitzer Prize winner Jack Rakove and Bancroft Prize winner Michael Bellesiles) examined the history and meaning of those words. The papers have just been published in a special issue of the Chicago-Kent Law Review.
Included are examination of the intentions of the Founding Fathers, a history of legal interpretations of the Second Amendment, and accounts of the historical and philosophical context in which the Amendment was drafted.
The courts and legal scholars have consistently interpreted the Amendment through the lens of its first clause — i.e., as guaranteeing the right of Americans to bear arms as part of a militia. It wasn't until the 1960s that a handful of scholars and gun advocates began claiming that the Amendment also guarantees an individual right to own firearms.
In this volume, several scholars examine that contention in the light of the contemporary debates during the drafting of the Constitution, including the Founders' concern to protect the rights of states to organize militias. Meanwhile, Bellesiles reports that the states freely passed laws controlling guns, both before and after the Second Amendment was adopted, with little controversy.
Two other Joyce grantees, meanwhile, have collaborated on a report documenting the environmental hazards of lead in shooting ranges. Poisonous Pastime, released in May by the Violence Policy Center and Environmental Working Group, reports that outdoor firing ranges put more lead into the environment than most other major industrial sectors, yet they remain largely unregulated.
Chicago-Kent College of Law, 312.906.5190
www.vpc.org
www.ewg.org
Seems clear enough to me and anyone else who wants to read it without putting their own interpretation into words. But that is when the lawyers come in ...
You might like this little story too:
Publisher Stops History Book Publication
I rather like the fact that Bellisiles is still wandering the landscape in total denial of his crimes against history and the Republic.
I was doing alright until I got to the last words. Now I'm mopping up the coffee on my desk.
But seriously, isn't it amazing how clear the meaning for the phrase "the People..." becomes when trombones are substituted for the loaded word, "Arms?" This demonstrates that those who ignore People in favor of Militia are reading their agenda into the Amendment. (Of course, we all knew that.)
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