Posted on 07/16/2004 8:59:00 AM PDT by neverdem
The first in a series of articles on the importance of the upcoming general election
Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.
The Verdict of Scholarship Yet, intellectual honesty compels many far more important scholars to accept the standard model of the Amendment as an individual's right despite personal anti-gun feelings. Famed constitutional lawyer and Harvard law professor Alan Dershowitz, who defended O.J. Simpson and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed. Yet, says Dershowitz: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Another former ACLU national board member, Duke Law School's William Van Alstyne, who is among the premier constitutional scholars of modern times, contemptuously dismisses the states'-right view. "If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century for no known writing surviving from the period between 1787 and 1791 states such a thesis." He emphasizes that to take civil liberties seriously requires respecting the Second Amendment no less than freedom of speech and religion and the other rights in the First Amendment. [Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994).]
Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].
RIGHT OF THE PEOPLE Anti-gun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard-model treatment. Yet, remarkably, these anti-gun writers give only that one initial mention. If they have answers to the 50 pages of evidence I offer for the standard model, they neglect to offer them. So I shall limit myself to just two examples of my unrefuted evidence.
Written by James Madison, the Bill of Rights was enacted as a single document. Whenever it says "right of the people," it does so to describe individual rights. To ignore this point you must think that in the First Amendment Madison used "right of the people" to describe an individual right. But then, 16 words later, he used it in the Second Amendment meaning a state's right. But then, 46 words later, the Fourth Amendment says "right of the people" meaning an individual right again. And then "right of the people" was used in the Ninth Amendment to mean--guess what--a right of the people.
In fact, throughout the Bill of Rights and the Constitution the word "right" is always used to refer to something individuals have and never used to refer to powers possessed by government. Such powers are always called "power" or "authority."
THE PURPOSE OF THE MILITIA Anti-gun advocates imply from the Amendment's reference to a "well-regulated militia" that government can regulate gun ownership. But that is totally outside the 18th century usage of "well regulated," which means "well trained" and "operating properly." Likewise, anti-gun advocates think the mention of militia show the right to arms applies only to states arming their militias. But in the 18th century "militia" did not mean "army" or "soldiers." The militia was a system of laws under which every man and every household was to have guns (unorganized militia), while most men of military age were required to appear with their guns when called out for drill or war (organized militia). The arms of the militia were the personally owned arms of its members.
It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyranny or foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense. But the Founders did not misconstrue that, as we so often do, as just a right to defense against nonpolitical criminals. The Founders believed individuals needed to be armed for political self-defense (e.g., Jews resisting the Gestapo) and that, in the ultimate extreme, people must join together to overthrow tyranny. (Note that the literal meaning of the term "revolution" was an uprising seeking to bring government back to its original free form, not to produce some new form.) [Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).]
WHAT LAWS DOES THE AMENDMENT PRECLUDE? The NRA's experts like Prof. Steve Halbrook believe the Amendment does more than I feel it does. And another expert, Prof. Nelson Lund, thinks neither Halbrook nor I interpret the Amendment broadly enough. We all agree, however, that the Amendment guarantees every responsible law-abiding adult freedom of choice regarding guns.
So assault-weapon bans are unconstitutional. "Assault weapons" are just semiautomatic rifles differing only in that they are down-powered from those of the WWII era. Banning them infringes on the freedom of law-abiding, responsible adults to choose which firearms they wish to have. Magazine limitations are invalid for the same reason.
So-called Saturday Night Special bans are valid only insofar as a particular model of firearm is provably unreliable or dangerous to use in the manner it is reasonably foreseeable to be used. The reasons for most SNS bans--that the guns are small, light and/or inexpensive--are invalid under the Second Amendment. Nor can states push gun prices to astronomical levels by requiring that guns incorporate dubious or unnecessary safety features.
LIMITS ON THE AMENDMENT The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.
Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)
Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.
The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.
VINDICATING THE RIGHT TODAY The Supreme Court has briefly referred to the Amendment in almost 40 different opinions, all showing that it guarantees an individual right to arms. But the court has never provided a full and lengthy exposition of the Amendment. In fact, several lengthy and considered opinions would be required to illuminate the Amendment's various aspects.
To any judge willing to follow the law, it must be clear that the Amendment guarantees the freedom of all responsible, law-abiding adults to choose to possess firearms for personal and family defense. We must depend on the president to appoint such judges and the Senate to confirm them.
Several vacancies on the U.S. Supreme court are likely during the next presidential term. Many appointments are also expected on lower federal and appellate courts. The president and members of the senate who are elected in November will play a major role in the rights of gun owners for many years.
Continue this: ...using the weapons they already legally owned according to their rights guaranteed under the 2nd Amendment.
"The second to prevent the Federal government from removing arms from the citizenry ... in order for them to form the militia mentioned in the first part.
At least, that's the way the courts (other than in Emerson) have read it.
What is your opinion of why the Founding Fathers even put in the first clause? Certainly if the FF intent was that the right of individuals to keep and bear arms was not to be infringed, it wasn't necessary, was it, to say why it was not to be infringed?
Agreed. In fact, coming very close to requiring them to show up armed. It was kind of the whole point.
After the passage of the 14th Amendment it is clear that the BOR does apply to the states. I used to think that it did beforehand until I got in a debate here at FR and learned otherwise. My logic was the 9th and 10th Amendments and the Supremacy Clause. I still think you can read that interpretation into the words of the Constitution without any effort whatsoever. After reading the founders on the subject (does BOR applies to the states) it is pretty clear that it did not apply to states as originally intended. 14th Amendment is the law of the land now, and the Senatorial debates from the time of its passage are very clear that its intent was to apply ALL of the BOR to the states.
He was calling the militia to arms.
The amendment expressly protects both.
Most of the discussion at the time centered around the state rights, but individual rights were also mentioned. Many militias were self armed.
States supplied cannon and ships for their milita- perhaps individuals did, that would seem likely especially on the frontier. That was to be protected too, expressly to prevent the forming of a standing army. A militia that would be able to do the job of a standing army could not be limited to small arms.
Also, there is no more "well regulated state militia".
Now what do we do about the second amendment?
You said that so much better than my #85 did. :)
I loved the movie Swordfish.
Beware court rulings. The last hundred years has seen some real stinkers as far as contorted logic in judicial opinion is concerned. They have pretty much tossed the Founders warnings about revisiting the ideology at the Construction of our Nation, for interpretation, right out the window.
That is how we ended up with things like California's gun ban and abortion "rights".
Yes. I was that traumatized by Saturday Night Fever...
There is too officially state militia. And as w/all military-related things, it's supposed to be under the ultimate control of the (civilian/citizen-based) gov, not a military leader.
George Washington believed in standing armies; he knew not much could be accomplished w/o them. Including the ultimate protection of the whole nation. I'm sure there were other Founders, too, who went along w/that. Just not the most famous, *non-military* 1s, by and large. Just a guess there, tho. I know many were scared silly by a standing army - and it WAS silly. Overly influenced by abuses of the British.
Doing so would remove any irrational fears about private NBC weapons, while still allowing the full range of conventional armaments for civilian usage, militia efficacy, and personal enjoyment.
Any and all writings we have on the subject left for us by the Founders indicate that the 2nd was meant to protect us from the government they had just formed. These men realized that any government has the propensity to become tyrannical if left unchecked.
One Founding Father was even quoted as saying that the 2nd Amendment was the guarantor of the other rights that God had granted us.
And you are quite correct in saying it was frigates that took out the Barbary pirates. Specifically, it was the US Marine Corps and the US Navy, not privateers. A little swivel gun was mainly for sweeping the decks of an attacking ship, not for any actual damage to the opposing vessel itself.
While a generally good article, I disagree with Kates on a few points:
1) The "organized" militia is not, IMHO, the average Joe and his friends and neighbors involved in training and drills. The organized militia was the Minutemen, highly trained soldiers (vs. the ordinary Joe), yet not part of the actual armed forces. Today's equivalent would be the National Guard of the various states, in their unfederalized capacity. The moment they are federalized, they become part of the armed forces. In fact, the U.S. Code currently defines the National Guard as the "organized militia," and a 1990 Supreme Court case specifically ruled that the NG of a state, at the moment of and duration of its federalization is part of the regular armed forces for Constitutional purposes.
2) "The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered."
Wrong, esp. with regard to cannon and warships. The Constitution specifically grants Congress the authority to grant Letters of Marque and Reprisal (Article I, Section 8). This basically means that Congress can grant some private citizen (or any number of them) the right to be privateers (i.e. pirates). This was done in order to be able to destroy or hijack foreign warships or merchant ships, as an aid to the US Navy. How, exactly, does Mr. Kates think that a private citizen could hijack a foreign vessel loaded with valuable cargo without cannon? How, in today's world, could one do so without an armored ship of some type? IMHO, the rights protected by the 2nd Amendment include the right to own armed warships. However, Congressional authority to grant Letters of Marque and Reprisal indicates that the ability of a citizen to USE those weapons (i.e. non-small arms) in a hostile fashion is subject to limitation. Thus, Bill Gates can buy himself a carrier task force if he is so motivated and can write the check for it. Using if for anything other than steaming around from place to place is another matter, but the right of ownership and possession is, IMHO, beyond question. Similarly, if someone who can afford it wishes to buy an RPG or grenades, I don't have a problem with that.
Let's think about this a bit: The Federal Government has an unchallenged right/power to own nuclear weapons, bombers, MOABs, rapid-fire naval cannon, submarines, etc. From where, exactly does that authority originate? The answer is in the first 3 words in the Constitution: "WE THE PEOPLE." I fail to understand how it is legally able to own something that we are prohibited from owning.
3) "Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)"
On the surface, this makes sense. However, what would happen if the government made very minor infractions (like speeding on an Interstate Highway, or owning a gun when subject to a restraining order during a divorce - not using it, just possessing it) into felonies? What if states said that similarly minor offenses (like fighting in a bar where no one uses a deadly weapon and no one is hurt badly) were felonies? In that situation, large segments of the population would be (and, to date, HAVE BEEN) disarmed. No sir, I think that only someone convicted of a VIOLENT felony (i.e. rape, murder, arson, etc.) who is either in prison or on parole should be denied the right to self defense. Once the person's debt to society is paid, their rights should be restored (and if some people can never be reformed and will always be a threat to the public safety, then why the Hell are they being released from prison in the first place)?
4) I disagree regarding registration and licensing, at least as long as the concepts of government being able to ban guns or gun ownership exist (i.e. always). There have been innumerable incidents in which registration lists of guns or gun owners have been used to confiscate guns and jail/murder their owners (even in the US, except for the murder part). Nope, as long as people who attend a place of worship and their bibles and various religious articles cannot be registered because the 1st Amendment prohibits such a thing, then neither can gun owners or guns be registered.
The only recording that I would permit would be letting the government record exactly which militia members actually possess the government-issued service rifle or handgun at home at any given moment in time. The Swiss, whose militia system our was modeled on, do this, so I guess that I'd permit it here. Such a thing would enable a more rapid callup of the troops in the event of a national emergency. Of course, I'm not holding my breath waiting for the Feds to hand out full auto M-16s free of charge to the general public, but such is the ONLY circumstance where I'd Constitutionally permit any kind of registration of firearms or their owners.
That's all I was asking, and I agree.
If you are going to chase a rabbit and ask why States ban certain weapons, then I suggest you pay particular attention to the rulings of the SCOTUS on the Emerson case. The 5th Circuit Court agreed that the 2A protects an individual's RKBA. The 12th Circuit Court ruled exactly the opposite. It will be up to the SCOTUS to resolve the conflict.
USSC ducked and let a bad ruling stand.
Cleveland Plain Dealer ^ | 1/24/03 | AP
Posted on 01/26/2003 10:07:46 AM CST by FSPress
LUBBOCK, Texas (AP) -- A man was sentenced Friday to 2½ years in prison for owning guns while under a protective order -- a limitation on gun rights that an appeals court held was constitutionally acceptable.
The U.S. Supreme Court last June declined to hear arguments that Timothy Emerson should have been allowed to keep his guns under the Second Amendment right to "keep and bear arms."
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