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.

And WW, I do not want to ban guns, nor do I want to do anything but keep true military hardware out of the hands of individuals, which is already a matter of law under the National Firearms Act -- the Miller decision clarified this law. If you've read my posts you will see that. I don't think it's fair to lump me together with people who do.

No you only want to ban some guns, the ones you don't think the people should have. The whole militia argument is specious, the right protected by the second amendment is a "right of the people" not a power of states or state regulated organized militias.

Your ancestor Lafitte was not a member of any militia, in fact he was as much pirate as privateer. The English certainly thought him a pirate, but then many nations label other nations privateers as pirates. But be that as it may, he undoubtedly owned cannon, both land based and on his ships, even when he didn't have a letter of Marque. For which Andrew Jackson was undoubtedly grateful.

Interestingly the US never ratified the international treaty which banned letters of marque and reprisal, although the US has not done so since the treaty was signed. Congress could issue a letter of reprisal against OBL for example, and it would be perfectly legal.

The TREATY MAKING POWERS of the Executive branch trump nearly everything.

Even a treaty cannot override the protections of the Bill of Rights. Treaties can create new governmental powers, such as the power to regulate migratory birds, but they cannot violate the Constitution itself.

The provision in question reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

That last should be parsed as " any Thing in the (Constitution or Laws) of any State to the Contrary notwithstanding". Not "any Thing in the (Constitution) or (Laws of any State) to the Contrary notwithstanding". When referring to itself the Constitution says "this Constitution" except in the prescribed Presidential oath of office where it's spelled out as "the Constitution of the United States"

So while Bill and Hill might try that scheme, an honest Supreme Court would not uphold it.

And many, many folks, including many in law enforcement and the military, would not obey or enforce it.

nor do I want to do anything but keep true military hardware out of the hands of individuals, which is already a matter of law under the National Firearms Act -- the Miller decision clarified this law

Not much. The Miller decision only clarified it with respect to short barreled shotguns. If you read the fifth Circuits Emerson decision, or the 1st Circuit's "Cases" decision, the latter coming only a few years after "Miller" you'll see that the Court did not say that military weapons could be banned, in fact just the opposite, that K&B of weapons with some reasonable relationship to the preservation or effectiveness of a well regulated militia by the members of the group, the people, is what is protected. This would have even included short barreled shotguns, if such a relationship had been demonstrated in the lower court.

As I noted in an earlier thread, I don't think incorporation is legitimate. But this is not an incorporation issue. The text of the First Amendment and the Second should indicate who holds the right and who is restricted from infringing upon it:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

"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."

Thus the first amendment applies to the acts of the FEDERAL government. The second does not--it applies to ALL government. The right of the people to keep and bear arms, shall not be infringed.

I don't think anyone can argue that the ownership of some types of weapons is discriminatory under current law given what is on the ATF NFAB page.

So the agency charged with enforcing a law gets to determine what law is, and if it's Constitutional? I don't think so.

I'm quite familiar with the provisions of the NFA. You do realize that the original bill would have included all handguns in the definition of "firearm" for purposes of the act, but that was removed at the last minute, in exchange for support of the rest of the bill (or at least non objection to it) (One of the first NRA "compromises" of the Second Amendment". Would that have been constitutionally OK? If so, would banning all guns, except maybe .22 rimfire single shot rifles, be OK too?

The NFA grew out of the attempt to ban alcohol, which at least was done via a Constitutional amendment, unlike other recent federal "bans". Prohibition increased the strength of the gangs, Italian, Irish, and about every other ethnicity, and led to the gang wars, in which Tommy Guns and BARs were the "weapons of choice" of the gangster. This lead to the desire to "do something", and that something was to ban guns and certain other weapons.

The more cynical sometimes say that the real purpose of the law was to ensure employment of the Treasury agents who were put out of a job by the repeal of prohibition. But prior to the NFA. Until 1986 it was disguised as a tax act, so that enforcement by treasury made some sense, but after that, the tax would no longer be collected on newly manufactured machine guns, due to a last minute (almost literally) amendment to the Gun Owners Protection Act. The amendment came up on the House floor, time expired before it could be debated, and it passed on a voice vote (of questionable propriety.) See Hardy

I've just read through this thread and am completely amazed that you four folks are the only FReepers that have touched on the real reason for the 2nd Amendment.

I know that is the primary reason for it. However the reason doesn't matter, the meaning and effect of the provision does. The effect is that the government cannot infringe on the right of the people, all of them or any of them. Except through individual due process upon commission of a crime. But the same power applies to most of the other rights protected by the Bill of Rights, and some other protections contained elsewhere in the Constitution. They too have their reasons for existence, but the purpose of each is to limit the power of government to violate those inherent rights.

What I do not understand is I thought that Federal Law overrides State Law. One example is the Sullivan Act in NY. Where they make it next to impossible unless you have alot of money or know someone to have a firearm.
A friend of mine who is a police officer in NC could be charged if he carried his pistol concealed in NY,DC and NJ. I just do not understand these principals of these states and others decipher the Second Ammendmant. To me it is pretty straightforward.

"And no, I'm not going to go through those various acts. If you can find evidence that the state militia acts did not regulate the acquisition of artillery by private individuals, put it up. But you're not going to find it."

You made the assertion. Put up or shut up. Prove that ANY law of the time--either state or federal, limited what arms a private individual was allowed to own.

"No; Article 1, Section 8 of the U.S. Constitution establishes that Congress can regulate the militias as quoted here"

Sorry, but wrong. This only applies to the miltia WHEN IN ACTIVE SERVICE--it in no way apples to what the individual citizens were allowed to own--whiich is the point you are trying to stretch it into.

"My argument was that using evidence of the private arming of ships as supporting a right to unrestricted access to arms goes too far. It does."

And your "argument" is wrong. The private ownership of cannon goes DIRECTLY to the point, and disproves your assertion that ownership crew-served weaponry was "regulated" by law.

Oh, the founders knew that the document was imperfect and they knew that it would be modified. That is why they put in a process for amending it. Liberals want to skip over that messy stuff and just arbitrarily change the meanings of the words.

It seems like everyone these days wants to skip over all those 'antiquated' traditions. Another good example is the WoT. We're in a conflict; why hasn't the Senate passed a war declaration?

This is slightly OT, but it just occurred to me that this thread really illustrates the difference in the mental processes of a liberal and a conservative.

If this were the DUmp, or any other liberal site, the only thing you'd see are anguished spewings of things on the order of 'the stupid rednecks want to have guns so more children will die'.

However, on FR, we have a large body of people who have actually bothered to read the Constitution and study the Framers and their writings. I seriously doubt that the DUmmies would've ever had a serious discussion about the entire 2A is the subject came up. They'd just run their mouths about gun control and shooting deaths. They'd never have even discussed the 2A's implications where militias, states rights, and rights of the people are concerned.

"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?"

The above argument is relevant and ridiculous, I think, considering how often one hears it these days. But the premise is that the Second Amendment was written, as is stated above, not to safeguard a right of the citizens, but instead, to give a "right" to the government, to increase government power. I can't figure out whether to laugh or cry at this attitude, that the very second right listed in the Bill of Rights is intended as a government "right." Between this and the NOLA thing, I'm kind of sick.

"...no citizen who can prove that he or she is a law-abiding citizen should be prevented from purchasing or owning a reasonable firearm..."

I personally don't think any of us can prove that we are law abiding any more - there are so many laws and regulations on the books, many of them broad and vague, that we are all pretty sure to have transgressed some of them, probably are transgressing some as we speak.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.