Framers' intent still hotly debated

While the topic is clear, the amendment is fraught with ambiguity and has been subject to conflicting interpretations and often acrimonious debate.

The sharp conflicts are everyday discussion topics, as gun-control advocates claim that firearms have a pivotal role in societal violence, and firearm enthusiasts clamor that restricting guns tramps on the intent and spirit of the Second Amendment.

One of the strengths of the Constitution is its inherent flexibility. The framers understood that the document would be modified over time if it was to remain relevant. A Constitution that embraced precise concepts of the 18th century could not necessarily be applicable to a society dependent on cell phones and Blackberrys. This does not make life easy for citizens or jurists, and brings to mind Winston Churchill's famous observation that democracy is a terrible system of government, but all the others are worse.

The murky language of the Second Amendment has created a battle line between both sides of the packing-heat or pack-them-away debate.

"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," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.

The amendment is one sentence comprising two clauses, which are the main cause of conflict.

The opening clause states: "A well regulated militia, being necessary to the security of a free State." No other amendment has a similar clause, which seems to ascribe its purpose, according to Levinson.

Gun control groups consider the clause precise and view the amendment as a collective right of the states to form militias.

The rest of the amendment's sentence, "the right of the people to keep and bear arms, shall not be infringed," loads the interpretation of pro-gun groups' belief that the Second Amendment grants citizens an absolute right to own firearms.

The word "militia" is a stumbling point. Written in a time when the tyranny of King George III was still a raw memory, it could be viewed as a right to arm military forces. However, in the 18th century, most adult males were part of a militia, so perhaps the framers used the word to imply everyman.

The Supreme Court has not fully interpreted the Second Amendment, but courts have agreed that it allows reasonable firearm restrictions.

The furious debate around the Second Amendment has prompted groups like U.S. Constitution Online (www. usconstitution.net) to propose replacing the Second Amendment with "a truer representation of how our society views our freedom to bear arms," by removing "militia" and focusing the amendment to ensure the "right of the people to keep arms reasonable for hunting, sport, collecting and personal defense."

As our nation grapples with the issue, we posed questions surrounding the Second Amendment to two recognized Tucson attorneys for whom the Second Amendment is integral to their practice:

Elliot A. Glicksman, who frequently pursues civil remedies for victims of crimes and represents crime victims, told us that "in a perfect world, guns would be treated like cars; people who own guns would have to take a proficiency test."

David T. Hardy, a federal firearms law authority, has written law review articles and a book, "Origins and Development of the Second Amendment: A Sourcebook," and co-authored "Michael Moore Is A Big Fat Stupid White Man" and "This Is Not an Assault" about the siege on the Branch Davidian compound outside Waco, Texas.

Star: Does the Second Amendment protect the individual's unlimited right to own a gun or other weapons? Or is it a collective right of the states and government to maintain militias?

Hardy: Modern scholarship accepts that the Second Amendment was meant to protect an individual right. Perhaps the best historical evidence is a 1789 newspaper explanation of the Bill of Rights, a comprehensive contemporary explanation, that refers to protecting citizens' "private arms." James Madison, drafter of the Bill of Rights, wrote a thank you letter to the author. Further, when the first Senate considered the Bill of Rights, there was a motion to make it a right to bear arms "for the common defense." The Senate voted down the idea.

Madison was trying to allay the fears of two groups. One feared that Congress would neglect the militia; the other feared that Congress might try to disarm individuals. Madison had to resolve both fears. This is why the amendment has two clauses.

Glicksman: The only U.S. Supreme Court case I'm aware of is "U.S. v. Miller," which held that it was a collective, not an individual, right.

Star: According to the Brady Center to Prevent Gun Violence, in U.S. v. Miller (1939), "the High Court wrote that the 'obvious purpose' of the Second Amendment was 'to assure the continuation and render possible the effectiveness' of the state militia. The Court added that the Amendment 'must be interpreted and applied with that end in view.' "

Since Miller, the Supreme Court has addressed the Second Amendment in two cases: In Burton v. Sills, (1969), the Court upheld New Jersey's strict gun-control law, finding the appeal failed to present a "substantial federal question." And in Lewis v. United States (1980), the Court upheld the federal law banning felons from possessing guns, finding no "constitutionally protected liberties" infringed by the federal law, according to the Brady Center."

Star: Bazookas and missiles are "arms." Does the Second Amendment protect an individual's right to own them? Glicksman: Good question. Let's go one further. How about nuclear weapons? Why should I, a legitimate nuclear weapons collector, be punished because terrorists misuse them. Punish the evildoer. Remember, nuclear weapons don't kill people. Terrorists misusing nuclear weapons kill people.

Hardy: All rights have rational limits. We can recognize "freedom of speech" without having to protect blackmail and threatening phone calls.

There are various theories as to how to establish limits. Akhil Amar, a professor at Yale Law School, suggested that, since the original purpose was to allow the people to deter tyranny, a weapon that allows one person to become a tyrant through terror would not be protected.

I like to compare it to regulation of the press, which was known to the Bill of Rights framers, versus regulation of electronic broadcasting, which they could not foresee, would require licensing of frequencies to work. The framers could foresee rifles and pistols but not special problems posed by antiaircraft missiles or nuclear bombs.

Star: Is the regulation of gun ownership, such as licensing and registration, a violation of the Second Amendment? Why or why not?

Hardy: It depends upon the regulation. What the framers clearly meant to take off the table is confiscation or prohibition. I see registration and licensing as facilitating that. It's hard to see how registration itself prevents crime. Even if a criminal did register his gun, he is unlikely to leave it with the victim. Glicksman: The First Amendment is not absolute. Some speech — yelling fire in a crowded theater — is not protected.

Should the Second Amendment be absolute? It can't be. Or else we couldn't prohibit felons from possessing weapons and I could take a gun with me on a plane.

Star: With the right to own a firearm, is a there an implicit responsibility to safely handle the firearm? Hardy: Everyone who has a gun and was not trained how to safely use it should obtain such training now. Every firearm accident that I have ever seen involved violation of not one, but several, simple safety rules. Gun safety is far simpler than automobile safety, but both require knowledge.

Star: A woman who carries a gun in her purse is required to have a concealed weapon permit. A person wearing a sidearm may be asked not to enter a place of business because of the sidearm. Are those restrictions on Second Amendment rights?

Hardy: The permit requirement is a restriction — courts have upheld those because it's a very moderate restriction; it doesn't restrict keeping, and only one form of bearing. A private business on the other hand isn't bound by the Bill of Rights.

Glicksman: Limiting people from having weapons in certain places like a bar or on a plane have always been upheld.

The Tucson City Council banned guns from city parks a number of years ago. The ordinance was challenged ("City of Tucson v. Rineer," 1998), but it was not challenged on Second Amendment grounds. Instead, it was challenged on the claim that the city couldn't regulate guns and on the amendment in the Arizona Constitution, not the U.S. Constitution. The City of Tucson won. The court held that it could ban guns from parks. Subsequently, the state Legislature enacted a statute that said only the state, and not individual cities, could regulate guns. If the Second Amendment grants an individual unfettered right to bear arms, why wasn't this ordinance challenged on Second Amendment grounds?

Star: Is there anything else you feel that our readers should know about the Second Amendment?

Hardy: One fascinating aspect of the American right to arms is not the Second but the 14th Amendment (1868). The original Bill of Rights only restricted the federal government (some states, for example, had established churches into the 1830s).

After the Civil War, Congress proposed, and the people ratified, the 14th Amendment, which forbade States to infringe the "privileges and immunities" of U.S. citizenship.

The congressional debates make it clear that a motivating factor was that the former Confederate states had passed the "Black Codes," which forbade blacks to own guns, and were disarming black Union veterans to make them vulnerable to Ku Klux Klan terror.

Yale professor Amar said that the Second Amendment vision was that "when guns are outlawed, only the government will have guns," and the 14th Amendment vision was "when guns are outlawed, only the Klan will have guns."

He sees the Second Amendment as protecting an individual but political right to resist governmental tyranny and the 14th Amendment as making this the "quintessential individual right," the right to defend one's home against criminal attack.

It's sometimes argued that we have a changing constitution. I find this difficult to accept: Why else would amending it require a super majority (two-thirds of Congress and three-fourth of the states)?

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.

Editor's note: The United States Constitution lays down the structure of the government and separates the powers among three distinct branches— the Legislative, Executive and Judicial. The landmark document was signed Sept. 17, 1787. Subsequently, the Bill of Rights, the first 10 amendments to the Constitution, went into effect Dec. 15, 1791.

The Constitution imposes a series of checks and balances among the branches of government. The Bill of Rights guarantees that government cannot take away rights from its citizens and protects citizens from excessive government power.

On May 21, we presented a discussion on the First Amendment. Based on positive reader reaction to that story and suggestions that we continue civics discussions, we'll be exploring the entire Bill of Rights in the next few weeks. Read the May 21 article at www.azstarnet.com/opinion.

Editorial Writer Sam Negri contributed to this commentary. Contact Editorial Page Editor Ann Brown at 574-4235 or annbrown@azstarnet.com.

US v. Miller determined that a sawed off shotgun was not a suitable weapon for a militia. No more, no less.

Not really. They found that they had no evidence before them that a sawed off shotgun was a suitable weapon for a militia because Miller was dead and his lawyer didn't bother to argue before the Court.

This is the Editorial Page Editor of this newspaper. Apparently, she has problems with reading and understanding language. She refers to the "inherent flexibility" of the Constitution.

A Constitution which is "inherently flexible" cannot be "the supreme Law," as its text describes it. Instead, it becomes whatever five unelected Justices on the Supreme Court decide it should be. Madison, Hamilton and Jay carefully explained why, in order to accomplish its central purpose as the distilled decision of the people of the US, the Constitution must be "the supreme Law." Otherwise, it is reduced at any moment to a nullity.

Brown needs to do more reading and less writing on the subject of the Constitution. She is spreading ignorant claptrap, here.

P.S. New info. My primary is over, but because of legal and ethical problems, the incumbent may withdraw/be forced out. He is also losing in the latest poll (5/28) to the Democrat challenger. I seek to be the replacement nominee. For more information see my website. I still need your help.

Congressman Billybob

Latest article: "Stomping on the Constitution, California-Style"

Actually, the framer's intent is only unclear to folks who WANT it unclear.

It's simple, really: governments do not have rights, governments have powers. If the framers meant to reserve this power to the states, they would have said so.

People have rights. Rights are not granted by a piece of paper, they are granted by God. We already have them, so when it says, "the right of the people," it is talking about something we already have, not something being conferred upon us.

The amendment is, therefore, a restriction upon government. No more and no less.

US v. Miller determined that a sawed off shotgun was not a suitable weapon for a militia. No more, no less.

And the decision was wrong.

Sawed off shotguns were in common use in the trenches of WWI. I believe Miller was dead and neither his lawyers or friend showed up for the hearing, so the incorrect information was treated as fact.

If you put it into historical context, “well regulated” in the late 1700s would have the meaning: Trained, drilled and proficient. Hence, a well regulated militia could have been worded: A militia that has been trained, drilled and is proficient in the arts of making war. The framers of the Constitution had no concept at all of “government regulation” in the current context.

Since the Constitution itself has an article concerning “Letters of Marquee” and the issue thereof, it was assumed by the framers that privet citizens would own warships mounting dozens of cannon.

Neither that clause nor the second amendment has been rescinded…

I'd be ok with Gates owning an aircraft carrier and Opra her own fully loaded submarine.

Personally, I wouldn't mind owning a tank, but I'll never afford the pricetag, much less a place to park it.

Some weapons platforms are self limiting by their pricetag alone.

The framers intended (and the USSC has ruled in Miller) that the 2A applies to arms commonly in use by the military. The true test is whether or not the weapon is "discriminatory". A rifle would be OK, things like land mines and bombs not.

That's one test, but I didn't think it was the 'Miller' test. The way I remember Miller is that the sawed-off shotgun was disallowed because it wasn't useful as a military weapon. (Though indeed it was in WW1, some shenanigans about who was allowed to testify happened in Miller). The Miller Case was about military usefulness, not indiscriminate results.

"If you put it into historical context, “well regulated” in the late 1700s would have the meaning: Trained, drilled and proficient. Hence, a well regulated militia could have been worded: A militia that has been trained, drilled and is proficient in the arts of making war. . . ."

I dealt with this earlier, the phrase "well regulated" in the 2nd Amendment only affirms the government's rights to regulate the militia as established in Article 1, Section 8, of the Constitution. The phrase "well regulated" therefore means in accordance with those established rights of regulation already ratified. The 2nd Amendment is adopted to make certain, i.e. to restrict the federal government's latitude of action, that regulation of the militia as established under Article 1 does not extend to disarming the citizenry.

". . . The framers of the Constitution had no concept at all of 'government regulation' in the current context."

If by this you mean that the framers never would have approved or supported many of the current efforts at gun control, I would have to agree. The modern gun control lobby is a direct threat to our constitutional liberty.

Sorry, I interpret all the regulations as infringements.

If a person is crazy enough or violent enough to be randomly dangerous, lock him up.

I've always like a couple of (science fiction writer) Robert Heinlein's thoughts: "An armed society is a polite society"

...and his notion of coventry for them as can't get along with their fellow man.

Paired, they solve the problem of excess violence and leave me alone to stay armed against true enemies, be they my own government or potential invaders.

On the contrary, the 2nd Amendment is clear. It's the 9th, 10th, and 14th that are harder to interpret.

"Local militias were only permitted to acquire artillery pieces once they organized and placed themselves under state control, although the order in which these aspects of the "legal" scenario often occurred was less than perfect. But private citizens were not permitted to "bear" such arms by themselves."

Please provide proof. I'm not aware of any such regulations, and I've read a LOT in this area. Even as late as the civil war, it wasn't unusual for (say) a plantation owner to buy the cannon for his local militia--but HE owned the cannon.

"And yes; those private sailing ships were well-armed and a logical argument probably can be made that this is evidence of unrestricted access to arms. But I would respond that that goes a bit far.

And you would be wrong. History says otherwise. Unfortunately for your position, between the Revolutionary War and up until the civil war, if you could afford to buy it, you could own it.

"The 2nd Amendment says "well-regulated." That must have had some meaning to the framers, otherwise they would not have put it in."

It did---it meant "well-trained". See "regulated" as in "regulation of a clock's movement". The bane of Washington's existence was the poor training of his militia elements. It wasn't until von Steuben showed up that they were "trained up" to an acceptable standard.

What the Founding Fathers were trying to accomplish is easy to ascertain from history---the only folks who would have you think otherwise are those that want to ban firearms.

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