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and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed.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.
While his court is imposing these mandates upon the American people, it's hypocritical of him to be admonishing Congress for doing the exact same thing.
"Limited powers", indeed.
"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"
It's there, yes, stating that a militia is necessary to the security of a free state. So what is a militia then? Certainly not what you seem to think. A militia is ALWAYS outside the existing army. A militia is comprised of common citizens who take up arms to defend themselves from tyranny, be they foreign or domestic.
A militia is not a standing or professional army. It's not a draft. How does it relate to the second part? Far from negating it, the right of the citizens to bear arms is absolutely necessary for a militia to form. During the American Revolution, or the Civil War, militias couldn't form without the ability of the common man to take up his own arms.
And why is it worded, "being necessary to the security of a free state"? Because, if the standing army were to come under conrol of a tyrant, as has happened throughout history the ONLY defense for the citizens would be to defend themselves, which is what a militia is.
Take away the right for the common man to arm himself, take away the right of someone to bear arms and a militia can not exist, and the second Amendment would be torn apart.
Actually, it was during the War of 1812 that the militias were found inferior to a federal army. When the war was over, the militias essentially went away as a separate fighting force.
Yes, the citizen was to be armed -- at least, those who fit the definition (males between a certain age). They were to be armed, they had a right to be armed, because they may be needed to secure a free state. It was that right that was protected from infringement by the federal government.
The case was in 1990, before Thomas was on the Court. However, here's some of what Thomas had to say in the followup case:
Not only did the court subscribe to a theory of injury that was predicated on black inferiority, it also married this concept of liability to our expansive approach to remedial powers. We have given the federal courts the freedom to use any measure necessary to reverse problems--such as racial isolation or low educational achievement-- that have proven stubbornly resistant to government policies. We have not permitted constitutional principles such as federalism or the separation of powers to stand in the way of our drive to reform the schools. Thus, the District Court here ordered massive expenditures by local and state authorities, without congressional or executive authorization and without any indication that such measures would attract whites back to KCMSD or raise KCMSD test scores. The time has come for us to put the genie back in the bottle.Missouri v. Jenkins (1995)The Constitution extends "[t]he judicial Power of the United States" to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority." Art. III, §§1, 2. I assume for purposes of this case that the remedial authority of the federal courts is inherent in the "judicial Power," as there is no general equitable remedial power expressly granted by the Constitution or by statute. As with any inherent judicial power, however, we ought to be reluctant to approve its aggressive or extravagant use, and instead we should exercise it in a manner consistent with our history and traditions.
Motivated by our worthy desire to eradicate segregation, however, we have disregarded this principle and given the courts unprecedented authority to shape a remedy in equity....
Our prior decision in this litigation suggested that we would approve the continued use of these expansive powers even when the need for their exercise had disappeared. In Missouri v. Jenkins, 495 U.S. 33 (1990) (Jenkins I), the District Court in this case had ordered an increase in local property taxes in order to fund its capital improvements plan. KCMSD, which had been ordered by the Court to finance 25% of the plan, could not pay its share due to state constitutional and statutory provisions placing a cap on property taxes. Although we held that principles of comity barred the District Court from imposing the tax increase itself (except as a last resort), we also concluded that the Court could order KCMSD to raise taxes, and could enjoin the state laws preventing KCMSD from doing so. With little analysis, we held that "a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court."
Our willingness to unleash the federal equitable power has reached areas beyond school desegregation. Federal courts have used "structural injunctions," as they are known, not only to supervise our Nation's schools, but also to manage prisons, mental hospitals, and public housing. Judges have directed or managed the reconstruction of entire institutions and bureaucracies, with little regard for the inherent limitations on their authority.
Such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers' design. The available historical records suggest that the Framers did not intend federal equitable remedies to reach as broadly as we have permitted.
--snip--
Two clear restraints on the use of the equity power--federalism and the separation of powers--derive from the very form of our Government. Federal courts should pause before using their inherent equitable powers to intrude into the proper sphere of the States. We have long recognized that education is primarily a concern of local authorities. A structural reform decree eviscerates a State's discretionary authority over its own program and budgets and forces state officials to reallocate state resources and funds to the desegregation plan at the expense of other citizens, other government programs, and other institutions not represented in court. When District Courts seize complete control over the schools, they strip state and local governments of one of their most important governmental responsibilities, and thus deny their existence as independent governmental entities.
Federal courts do not possess the capabilities of state and local governments in addressing difficult educational problems. State and local school officials not only bear the responsibility for educational decisions, they also are better equipped than a single federal judge to make the day to day policy, curricular, and funding choices necessary to bring a school district into compliance with the Constitution. Federal courts simply cannot gather sufficient information to render an effective decree, have limited resources to induce compliance, and cannot seek political and public support for their remedies. When we presume to have the institutional ability to set effective educational, budgetary, or administrative policy, we transform the least dangerous branch into the most dangerous one.
Yes, that right is protected. Those rights still stand under the Constitution. According to the Constitution, it's vital for the citizens to be able rise and defend themselves, outside of the Army, if necessary. And unless citizens can keep their own arms, there's no way that can happen.
Outside of the Army? Outside of the militia? Of course I agree -- just don't look for protection under the second amendment.
Your individual RKBA is secured by your state constitution. Unfortunately, your state constitution does not offer much:
"The Massachusetts Supreme Judicial Court has held that this right does not guarantee individual ownership or possession of weapons. Commonwealth v. Davis, 343 N.E. 2d 847, 849 (1976). In Davis, the supreme court rejected defendant’s Pt. 1, Art. XVII challenge to a state law prohibiting the possession of a shotgun with a barrel less than 18 inches long. Davis, 343 N.E. 2d at 850. The (Massachusetts) supreme court reasoned that the right to “bear arms” contained in Pt. 1, Art. XVII concerned the custom of keeping arms for use in militia service and was “not directed to guaranteeing individual ownership or possession of weapons.”. Davis, 343 N.E. 2d at 848-849.
Essentially, the Massachusetts Supreme Judicial Court ruling is similar to federal court rulings about the second amendment.
Get to work. Change the state constitution.
Let me guess; you ran around the "Reading is Fun" van to get to the ice cream van.
The right of the people to keep and bear arms shall not be infringed.
I know that terrifies you because you might not be able to install your Talibornagain whack job government; but that is precisely the purpose of the second ammendemnt.
You communist gun grabbers are a hoot.
A militia can not exist without the right of the common man to bear arms, and that right IS protected under the U.S. Constitution, with the words "the right of the people to keep and bear arms shall not be infringed." Without that, a militia couldn't exist, and the first part of the Amendment couldn't exist. The Founding Fathers obviously knew that if people couldn't arm themselves, they couldn't rise if necessary to protect themselves from tyranny.
Of course, I'm sure he [Justice Clarence Thomas-kh] sees no problem with the USSC and other courts forcing states to fund judicial activism.
See post #244 regarding Missouri vs Jenkins, which Sandy was kind enough to bring to this thread.
The last sentence is a real haymaker:
When we presume to have the institutional ability to set effective educational, budgetary, or administrative policy, we transform the least dangerous branch into the most dangerous one.
It seems Justice Thomas does indeed have a problem with the USSC and other courts forcing states to fund judicial activism.
Well, there you go. Both the Congress and the USSC are guilty of forcing the states to accept unfunded mandates.
Is this Clarence Thomas Appreciation Week, or does your post have a point?
No, the question was rhetorical.
The other side to the 2ndA is that you don't HAVE to have arms! Unlike Switzerland e.g., you are NOT FORCED to have any armament!
I cannot understand how any1 can miss the whole point of the American Revolution and what it taught the generation who fought it.
The Founders were all about *recognizing* (as opposed to GRANTING, which too many here seem to think not to mention all the Joe Schmoes out there) NATURAL RIGHTS.
If they were concerned that there are NATURAL rights such as the right to self-defense (in whatever form!) which cannot be infringed and that they recognized in the BOR, how on earth would the Founders think it was OK for states' gov's (as part of the nation) to infringe these *natural rights* (Jefferson's "inalienable") any more than the national gov?
Unbelievable!
Well, there you go. Both the Congress and the USSC are guilty of forcing the states to accept unfunded mandates.
Nobody said otherwise.
Is this Clarence Thomas Appreciation Week, or does your post have a point?
Yeah. You said:"Of course, I'm sure he sees no problem with the USSC and other courts forcing states to fund judicial activism. That's OK."
I replied: "Do you have an example of Justice Thomas' approval of forcing States to fund judicial activism? If you do, fine. If not, then you have just set up and knocked down a strawman."
Justice Thomas, commenting on one of the cases you cited, wrote disapprovingly of forcing states to fund judicial activism.
The point being, you were wrong about Justice Thomas.
But it's there, and because it's there, it ties the RKBA to a well regulated militia and to the function of keeping the state free. Since we now have a standing army and we no longer have the type of well regulated militia we once had, I really don't know the standing of the second amendment.
Actually, literary analysis of the 2nd Amendment indicates no condition forced by the "militia" commentary. J. Neil Schulman's The Unabridged Second Amendment contains a more persuasive argument than "but it's there, and because it's there".
Thanks to me, we see that the USSC is equally culpable. And he's against that also.
Well, that's good. I still don't see your point in all this. He's against unfunded mandates. Aren't we all?
Did you read my post #246?
That robertpaulsen was in error regarding Justice Thomas when he wrote in post #216:
Of course, I'm sure he sees no problem with the USSC and other courts forcing states to fund judicial activism. That's OK.
As I recall from Schulman's article, he did not come up with that interpreation, he merely passed along the findings of some academic who did the analysis (I can't recall the fellow's name at the moment).
Regardless, the "one-sided view" of that political activist pretty much agrees with the general interpretation of the Second Amendment common until the middle of the 20th century. The notion that the language limits the RKBA to only *one* of the categories of "militia" as defined in the federal statutes is a recent invention, and a shaky argument at best. As far as that interpretation not mattering when it comes to the law, I disagree. Currently, there are Federal Appellate Court rulings which are in direct opposition due precisely to this matter. Hey, if you absolutely want to stand alongside the 9th Circus Court on this issue, knock yourself out.
Did you read my post #246?
Yep. There are differences in how "militia" is defined at the state and federal levels. More later.
Very well said!
Seems a bit disingenuous on your part to quote Justice Thomas admonishing Congress but leaving out his criticism of the same actions by his own USSC. Given that he's criticized both, I'm simply asking the point of your post #190.
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