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and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed.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.
States are also part of the Union. As such, they are subject to the Federal Constitution they ratified. Don't make me go back through all those threads digging up all those qoutes from the Founders. Again.
You aren't any more correct on that issue than you have been from the beginning.
The California Ban is unConstitutional. Period.
Who Were the Minutemen?
Although the terms militia and minutemen are sometimes used interchangeably today, in the 18th century there was a decided difference between the two. Militia were men in arms formed to protect their towns from foreign invasion and ravages of war. Minutemen were a small hand-picked elite force which were required to be highly mobile and able to assemble quickly. Minutemen were selected from militia muster rolls by their commanding officers. Typically 25 years of age or younger, they were chosen for their enthusiasm, reliability, and physical strength. Usually about one quarter of the militia served as Minutemen, performing additional duties as such. The Minutemen were the first armed militia to arrive or await a battle.
Although today Minutemen are thought of as connected to the Revolutionary War in America, their existence was conceived in Massachusetts during the mid-seventeenth century. As early as 1645, men were selected from the militia ranks to be dressed with matchlocks or pikes and accoutrements within half an hour of being warned. In 1689 another type of Minuteman company came into existence. Called Snowshoemen, each was to "provide himself with a good pair of snowshoes, one pair of moggisons, and one hatchet" and to be ready to march on a moment's warning. Minutemen also played a role in the French and Indian War in the 1750's. A journal entry from Samuel Thompson, a Massachusetts militia officer, states, "...but when our men were gone, they sent eleven more at one minute's warning, with 3 days provision..." By the time of the Revolution, Minutemen had been a well-trained force for six generations in the Massachusetts Bay Colony. Every town had maintained its 'training band'. The adversity that this region faced-Native-American uprisings, war with France, and potential for local insurrections, social unrest, and rioting-provided ample reason to adhere to a sound militia organization. In his recent book, perhaps David Hackett Fischer puts it best, "The muster of the Minutemen in 1775 was the product of many years of institutional development...it was also the result of careful planning and collective effort." (p. 151). By the time of the Revolution, Massachusetts had been training, drilling, and improving their militia for well over a hundred years. [Emphasis added by Ancesthntr]
Unfortunately, one thing the Minutemen lacked was central leadership. This disadvantage would lead to their dissolution. In February of 1775 Concord was one of the first towns to comply with the order to create Minutemen companies out of the militia. Of approximately 400 militia from Concord's muster rolls, one hundred would also serve as Minutemen. When a battle took place Minutemen companies from several towns combined their units. An officer from the 43rd Regiment of Foot was sent to the North Bridge in Concord with a number of light infantry. Minutemen from Concord, Acton, Littleton, and other towns combined forces. After a few volleys were fired, the British light infantry retreated back to the Concord Common area. Lacking central command, with each company of Minutemen loyal to their own town, they did not pursue the redcoats. In the running battle that ensued fifteen miles back to Boston the Massachusetts militia would see their last action as Minutemen in history. The militia would go on to form an army, surrounding Boston and inflicting heavy casualties on the British army at Bunker and Breed's Hill.
Thus, although lacking central command, the Minutemen were still better organized and battle-tested than any other part-time military. They were a vital and necessary force, playing a crucial role in not only the Revolutionary War, but in earlier conflicts. Without these "ready in a minute" men, our history may have been written in a very different way.
Like it or not, if the Militia ever has to face our military, then we will need to resort to some of the weapons and tactics used against our military in Iraq. Why would you outlaw the use of weapons made using gasoline, propane, or fertilizer?
Missing my point?
From the Shotguns board over at The Firing Line:
"28 gage - .550, 20 - .615, 16 - .662, 12 -.729, 10 - .775. 410 is of course .410"
TITLE 10 > Subtitle A > PART I > CHAPTER 13 > Sec. 311. describes the federal militia, not the well regulated state militia to which the second amendment refers.
Ah, you are correct about "unorganized" vs "organized" - the NG is PART of the latter. However, look at your organized again for the main point. The NG is not THE militia all in itself, in any class.
ALL males of the correct age belong to the militia! Whether you are aware or not, YOU belong to a militia! ;-)
Back to the minutemen (not capitalized, BTW) - no, there was nothing particularly special about them. Only that they were to be "ready in a minute" - to leave!
These men did not have anything special beyond what a "regular" militiaman had. They simply were expected to show up rite away on a moment's notice. There were no regimentals, no special muskets, nothing. Indistinguishable from other militia as far as field discipline.
And your last comment belies the point of minutemen - they were not expected to go to real battles, per se. They were essentially "alarm" contingents for emergencies. They wouldn't follow main armies around to fight for them. They were meant to "stem the tide" until perhaps more men - or better (ha ha, that's another story) - could get to the scene. The Concord action, e.g., was hardly a "major battle" in terms of the enemy. It was only like a regiment or so. But the main point is, these were guys who were "on call" and aware of it, just for emergency situations.
My point still remains however. If there are valid concerns about civilians ownership of such things, then the only correct legal means for limiting them are through amendment of the Constitution. Not through backdoor legislation, unConstitutional State laws, nor judicial activism.
Is it? Then why did it include the clause, "nor shall any State deprive any person of life, liberty, or property, without due process of law"? Since that was already part of the BOR, what would have been the point of repeating it?
I'm very familiar with D. H. Fischer. The author of this piece elaborated on the notion that "minutemen," in concept, had been around for generations, missing that "Minutemen", as in actual units, did not exist until Massachusetts' "government in exile" ordered communities to form them. The Militia were your average Joes. The Minutemen were militiamen who took on the added responsibilities of minutemen.
I don't understand what you're saying at all.
"Minutemen were a small hand-picked elite force which were required to be highly mobile and able to assemble quickly."
I think we're being enamored of the term "elite" here.
"By the time of the Revolution, Minutemen had been a well-trained force for six generations in the Massachusetts Bay Colony."
Nevermind that militia generally had been around for generations in Europe. Long existence doesn't make good military.
Regardless of the history here, it must all be taken as RELATIVE terminology. Minutemen were PART of the militia, and their main purpose was to be ready as quickly as possible, to meet up the enemy in the local area as fast as possible. Notice for all the description, you aren't told what "well-trained" means. Neither is it clear if all are provided w/uniform weaponry, or whatever. And I think you'll find there was nothing beyond local "control" of minutemen - like the militia of which they were part. It's not as if we had military experts roaming the entire countryside who knew just how to train and maneuvers, etc. Washington was all too aware of that - and that's w/the "standing" army! He himself had to look mainly to Euro's in the army for help in getting military knowledge and discipline and disseminating it. The rest was guesswork, FAI!
They may have been better than plain militia, but that's not saying much! Trust me, these guys were NOT the equivalent of British regulars!
hmmm. How does a rifled slug gun pass muster?
I have read that he shouted, "The Regulars are coming", meaning the Regular Army.
It is important to realize that the citizens of the Boston area were opposing their own army which was directed by the lawful government of the day.
That government was a tyrannical monarchy which was fully supported by about a third of the population and tolerated by an additional third. The militia which surrounded Boston and eventually forced the retreat of the government fleet there was acting entirely outside government sanction. Even the Declaration of Independence was still over a year away.
They elected their own officers & non-coms . . . not that it mattered much, for they didn't even follow their officers' orders if they didn't want to. At Lexington and Concord, most engagements didn't even take place in company strength---they were "run and gun" battles along the road from Concord to Boston.
About the only good thing you could say for the militia as a fighting force is that a large number of them were veterans of the French and Indian War.
. . . nor had men like John Adams even broached the subject of independence from England, if I remember correctly. The colonials were pretty much merely attempting to reinforce their rights as Englishmen.
Private ownership of complete warships is protected by the Constitution. A letter of marque from Congress and your good to go.
I am saying that you are correct, to a point. The Militia clause was inserted to ensure that the people have the means to overthrow the government. It performs this function by being explicit as to one reason why the right to keep and bear arms shall not be infringed.
The clear implication of such thinking is that LACK of such a clause would result in LACK of such ensurance. The courts would then make the same leap that they did in Gitlow. They would presume that the LACK of explicit ensurance indicates that no such meaning should be ascribed.
For example, if the First Amendment said "Discussions of changing or abolishing government being necessary to the continuance of a free state, the right of the people to speak freely shall not be infringed", then the decision in Gitlow would have been specifically prohibited. Freedom of speech alone was not sufficient to accomplish freedom of speech in Gitlow. The right to keep and bear arms would not be sufficient if some activist judge decided that our Founders could not have meant to enable the people to overthrow the government.
My state constitution explicitly states that the right to keep and bear arms shall in no way be infringed.
Does that mean that the federal AWB does not apply to my state? Or the 1934 Gun Control Act? Can I go out a buy a Thompson sub-machine gun without a federal license? I don't think so.
The U.S. Constitution and laws congress makes in pursuance thereof, (including laws based on treaties) trump state's laws and any Thing in state constitutions which are contrary. (Article VI, para 2) So I read that exactly the way it is written. If the feds want to impose anything on the states, all they have to do is pass a law and it becomes the supreme law of the land.
The problem with federal gun laws is that they violate the Second Amendment for they are not in pursuance to the Constitution and the BOR which is a continuous document. It is not for government to dictate to the people what the rules of engagement are when life itself and unalienable rights are at stake. Doesn't anybody get that?
Even if there were no federal gun laws or Second Amendment, the people are nuts to allow even the state to dictate the terms of engagement where life and liberties are at stake. Are we nation of Sovereigns and free men/women, or are we a nation of subjects and involuntary servants?
I mean, without the militia clause, I suppose the courts could rule that these arms could be used to overthrow the federal government. But why no concern about using the arms to invade Mexico or Canada? Or have 49 states gang up and invade California?
Without the militia clause, the courts could rule that "arms" meant those weapons suitable for hunting, self defense, sport, collecting, etc. and omit the really big stuff (suitable for overthrowing governments). Kinda like they're doing now.
The real problem is that we have the Militia clause, and that has been interpreted by the courts (excl. Emerson) as the sole reason for individuals to keep and bear arms.
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