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and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed.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.
I'm simply saying that "arms" is more a military term. "Guns" is more a civilian term. Do you agree?
Well said. This is another issue that gets bogged down by those who would seek to destroy the 2A. The two separate clauses contained within. The first to prevent the Federal government from destroying the militia. The second to prevent the Federal government from removing arms from the citizenry.
Hmmmm. All along I thought he was awakening the Minutemen, members of the Concord militia.
Learn something every day.
No "Letter of Marque" needed.
Cool. Makes me want to go out and get a more modern equivalent, the M20 75mm (3") recoilless rifle. After all, it's a "rifle" which makes it "arms" and not ordnance. IIRC, there's a 106mm rifle too.
We were only sidetracked cuz the original article (as well as apparently a few here) believed cannon, et al, are not included in the 2ndA.
So now we have to explain to every1 that ANYTHING is included in "arms"!
May be unimaginable esp. w/today's giant weaponry, but it has to be true! Otherwise we'd never be able to overthrow a big gov like this if we have to face their airborne bombing attacks w/a bunch of "small-arms fire"! I'm quite positive the Founders, fresh from experiences precipitating and during the RevWar, intended we should as a people be able to separate and that that would mean whatever means possible. FGS, it was a REVOLUTION against a GOVERNMENT! Why can't people understand that?
The militia comprised of what? Regulars? no, Common citizens. Men 16 through 50 yrs of age that were required to muster 2 times a year for a couple of weeks to drill, but mostly ended up partying.
Still common citizens...not paid military soldiers.
So is "poop deck". The Navy is strange.
Then one must logically assume that the Citizenry must possess arms superior to those which would be used by the Federal government to dis-arm the Citizenry.
To be under-armed with less firepower would render the Second Amendment useless and pave the way for a tyrannical government which would have an easy win over the Citizens.
If the Amendment was written for the purpose you suggest, then it is for the People to establish the rules of engagement and the weapons to be used therein -- NOT the government.
After reading that, it appears that the broader interpretation was right. These ships, one with 26 guns, legally existed in private hands. The letters simply let them legitimately conduct the pirate activities they were capable of.
It's too bad that localities have neglected that practice. I, for one, would love a chance to muster with the "local militia". Not only would it be another excuse to spend some time outdoors, but it would strengthen that sense of community that seems to be fading in the US.
I think so too. Check my # 90.
My take is that the Bill of Rights says to keep hands off.
I'm not trying to parse you death, but that could be interpreted as saying the Tenth Amendment means hands off the State's prerogative in the area of the RKBA.
It could also mean that the States are required keep their hands off of people's guns.
Let me ask one more time. Are States bound by the Second Amendment in your opinion?
Bring your own firelock...I have a .50 cal kentucky/virginian you can borrow :)
Any idea what the bore diameter of 10 and 12 guage shotguns are?
It's all about definitions. Let's use a term that practically everyone in the world can agree upon: What is an "arms dealer" and what does he deal in? Small arms only, or does he also sell rockets, grenades, airplanes and bombs?
Effective in a limited scope. No real replacement for a professional Army, but bounty hunters operating under Letters of M&R could be extremely useful in hunting terrorists today.
I would say that "arms" is a better term, and it certainly leaves no question as to what is being discussed. "Guns", on the other hand, has a slang-like feel to it. Radar gun. Squirt gun. Nail gun. This is my rifle and *this* is my gun. It makes sense that the military would retain the proper terminology.
Nowadays, "arms" sounds more "military", but when the Bill of Rights was written, that was not the case. The American vocabulary has suffered much in the past, oh, 150 years.
(sarcasm)That oughta be fun.(/sarcasm);-)
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