Who Is Right about the Right to Bear Arms?

Stanford (Alumni Magazine) ^ | March/April 2006 | Stanford Magazine

[Atlas Sneezed]

The Second Amendment of the U.S. Constitution reads: 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. What does that mean exactly? Some 220 years later, legal scholars are still trying to figure it out.

The National Rifle Association supports the view that the Framers were speaking about individual rights when they wrote “the right of the People.” Gun control advocates have argued for the states’ rights model, which deems the key phrase “a well regulated militia,” and speaks only to a collective right that could be exercised by citizens rallying against federal tyranny or outside aggression.

Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law at Stanford, says there is little consensus among academics about what right the amendment protects. “Some significant percentage of legitimate scholars would say there is substantial support for individual rights, though none of them would say it’s an absolute right. And there are plenty of legitimate scholars who say that constitutional history points the other way. Then there are some in the middle who just think it can’t be resolved: it’s unanswerable,” says Weisberg, who organized a two-day conference on gun control issues last fall.

Much of early American law was cribbed from British legal principles, including the notion that “rights” were synonymous with duties of citizenship. In the context of gun ownership, the language that speaks to persons bearing arms could be referring to citizen conscription in a time of need. A militia member was “an important civic figure, sort of a model citizen” whose willingness to take up arms against an occupying army was seen as essential to the security of the state, Weisberg says. Viewed through this historical portal, the idea that an armed militia extends gun rights to individuals is “an artifact of a model of citizenship that no longer exists.”

But Weisberg says one also could argue persuasively that owning guns for protecting the village or protecting one’s home are virtually indistinguishable. “Gun owners don’t lose their identities as individuals because they are members of a militia. There is a very close relationship between owning guns as part of the militia and owning guns period,” he notes.

In an influential 1989 article in the Yale Law Journal titled “The Embarrassing Second Amendment,” Sandy Levinson, JD ’73, a professor of law at the University of Texas, frames the issue by acknowledging the problem. “No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions,” he wrote.

Levinson, though loath to give comfort to gun advocates, concludes there is ample evidence that the authors of the Bill of Rights were protecting citizens’ right to resist tyranny by use of force. Despite societal changes that would seem to render the notion of a militia irrelevant, he writes, “ ...it is hard for me to see how one can argue that circumstances have so changed as to make mass disarmament constitutionally unproblematic.”

The Supreme Court has done little to settle the matter. The case most often cited in the debate is United States v. Miller, et al, (1939) in which the Supreme Court reversed a lower-court ruling that had thrown out an indictment against two men accused of illegally transporting a sawed-off shotgun across state lines. The court said the law against the modified weapon was constitutional because a sawed-off shotgun has no “reasonable relation to the preservation or efficiency of a well regulated militia.” As is often the case when debating the Second Amendment, both sides claim Miller supports their argument.

One view maintains Miller aids the states’ rights model because the ruling implies that gun rights are only protected in the context of common defense. The other side counters: what if the weapons in question had been bazookas instead of sawed-off shotguns? The court might have ruled differently, they say, because it would be hard to argue that sort of weapon wouldn’t be useful to a state militia.

[rahbert]

That is an important point. This forum is the equivalent
of an "assault weapon" compared to the public square of
yore.

I used to believe similarly to the author of the piece until I realized this exact same inconsistency.

[Dead Corpse]

I loe it when that happens. It's about then that they show their true colors and start referring to you as an "extremist gun nut".

Seems like a good place for a Goldwater qoute doesn't it? Or maybe Spooner? Menken? Jefferson? So many to chose from...

[King Prout]

*grins*

see #171

[King Prout]

let's start with Old Ben:
"He who would trade essential liberty for an illusion of security deserves neither liberty nor security"

[Dead Corpse]

Read Lysander Spooner's "The Science of Justice". Brilliant man there...

[tpaine]

LilDarlin wrote:

Be kind of fun for a group of US citizens to draft an original amendment today on - oh say...religious freedoms - that would make sense to or have any relevance for folks in the 23rd century; a measly 200+ years away.

Are you confused by the one we have now, darlin? -- Why would you think our present 1st will be irrelevant in the 23rd?

[Eaker]

Does anyone suppose that the folks writing the 2nd Amendment in the late 18th century envisioned the type of "arms" we have available today in the 21st century? And...if they could have, do you suppose the 2nd Amendment would have read exactly the same way?

Yes, because the 2nd is about fighting tyranny and to do so your weapons must be up to the task.

[Dead Corpse]

Ok... wrong title... close enough though. Natural Law by Lysander Spooner. "Do unto others" writ in a lot more words...

[King Prout]

I'll look for it. thanks

[pop-gun]

Its really simple ....unless sophistry is at play...

With respect to the subject at hand, and not body part or other,.....Webster: Arms........Weapons.

[pop-gun]

As posted in #150, your definition of "militia" is not congruent with United States Code, both current and long-standing.

I am so sorry...but I take my definitions from Daniel Webster.....and no one else..... unless, of course, you could provide the text that you refer to as controlling so all of us can learn from what you already have in hand.

[robertpaulsen]

"Could a state declare that the entire population is a militia?"

Yes.

"Do you have a constitutional definition of militia to offer?"

Because of your first question, the Militia Act of 1792, Passed May 8, 1792, provided federal standards for the organization of the Militia.

"I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act ..."

[Brucifer]

The other side counters: what if the weapons in question had been bazookas instead of sawed-off shotguns?

I believe that this is a straw man argument. A bazooka is a crew served weapon. So are belt fed machineguns, F-16s and atomic bombs. The 2nd Amendment was meant to protect and defend the rights and duties of individuals. If it takes more than one person to carry or operate a weapon it is a crew served weapon and not an individual rifleman's weapon. If the 2nd amendment protects individual rights, then the logic is pretty clear.
I have also read that there were discussions when the Articles of Confederation were adopted over whether an individual could own a cannon as a personal firearm. Nope, crew served. I wish I had a dollar for every time I've heard libs and anti-gun bugs play this as what they think is a trump card.

[headsonpikes]

because the 2nd is about fighting tyranny and to do so your weapons must be up to the task.

Exactly. Why does this have to be repeated over and over and over?

I call the resistance to obvious reason in this matter a case of malicious ignorance - being deliberately ignorant so as to be able to plead intellectual innocence when confronted, much like the similar lefty ignorance of market economics.... ;^)

[Dead Corpse]

Back then, individuals owned crew served ships loaded down with cannons. Your argument doesn't quite work.

[robertpaulsen]

"I can't believe RP actually stated that mere local statutes can over turn State Constitutions"

Can't read?

"But if the state constitution allows it, and if the state has home rule, then of course a city may ban handguns.

And you really should watch your language, a$$hole.

[Joe Brower]

Regarding the whole perverse invention of a "living Constitution", a few thoughts from those much wiser than we (or at least me!):

"Arguing that the words of the Constitution have no fixed meaning is tantamount to arguing that we have no Constitution; a Constitution serves no purpose if the branches of government it is supposed to limit can define their own powers." -- W. James Antle III

"A written constitution that can be interpreted to mean the opposite of what those who drafted it intended is no constitution at all... Law, especially constitutional law, must bind the government as well as the governed... A living Constitution may sound good, but it will kill the rule of law upon which our Republic rests." -- W. James Antle III

"If the Constitution is to be construed to mean what the majority at any given period in history wish the Constitution to mean, why a written Constitution?" -- Frank J. Hogan, President, American Bar Association, 1939

"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests." -- Patrick Henry

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." -- Thomas Jefferson

[freepatriot32]

Libertarian ping.To be added or removed from my ping list freepmail me or post a message here

[Dead Corpse]

Gun hating hoplophobic troll.

In your logic, "home rule" could bring back slavery in those municipalities. That dog don't hunt.

Fed Con over-rides State Con, for those areas specifically stated in the Fed Con, once the State ratifies it and joins the Union. The Debates in the 1St Congress and the several State Conventions point this out repeatedly.

Don't be any more of an idiot than you absolutely need to be.

[robertpaulsen]

"The feds are clearly infringing on my rights and my state's rights with their demands for registration and restrictions on the type of firearm I need."

Yes. The Supremacy Clause allows them to do that.

I wasn't aware that Pennsylvania required registration. A background check, yes.