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.

"The purpose of the Law is no longer about equal protection of Rights. It is about revenue generation, population control, and justification of existance."

I agree. By population control, you mean controlling the population's behavior, not their numbers, right?

I'm still in kind of shock, as I mentioned on another thread, over the loss of constitutional rights that have occurred the last few years, between CFR, Kelo, an ICC decision, and now this. Away from this forum, people seem blase about it all. Even our president, much as I admire him, doesn't seem to much care.

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.

Aye, there's the rub! An "honest" USSC. Truth be known at this point in time, I'd have an easier time believing in an "honest" USSC than I would trusting in law enforcement and the military to go against orders. Look at New Orleans. The sad fact is that the liberal antigun curriculums that have been running rampant in the public & private schools for the last 40 years have come home to roost. The old cops who really believed in the 2nd Amendment are almost all of them retired and the new centurions are elitist and globalist and ignorant. I know, I've been watching them graduate from high school for the last eighteen years. I can only reach the open minds in my classroom. Fewer and fewer are open to ideas that challenge the propaganda every year.

What I do not understand is I thought that Federal Law overrides State Law

Only in those areas were the federal government has been granted power in by the Constitution.

The problem with respect to arms rights, and other Bill of Rights protected rights, is that courts in period before the civil war declared that the Bill of Rights, all of it, does not apply to the states. Most states have their own Bills of Rights, and most of those have some kind of RKBA clause. The 14th amendment was supposed to apply those protections to violations by state governments as well, but since they didn't say that outright in the amendment, although it was said by the sponsors and supports in Congress during debates, even the opponents understood that meaning, the Courts were free to interpret that away, so that Jim Crow laws could stand. They interpreted the privileges and immunities of US Citizens protected by the 14th amendment to be only those unique to federal citizenship, such as the right to use navigable waterway. Horse pucky I know, but that's what the mighty federal courts ruled.

"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.

Actually that's not quite right either. The early militia acts specified what weapons the (free white male) citizens *must* own, but did not restrict what they *could* own. It did not apply just when they were activated, they had to own those weapons all the time, and this was to be checked during periodic "musters", which are more akin to the weekend drills of the Guard and Reserve than to being "called into federal service". That was all under the power of Congress to provide for arming and dicisplining the militia. (Note "provide for arming"), Congress need not provide the actual arms, although eventually they did, as little as they could get away with in most cases.

We're in a conflict; why hasn't the Senate passed a war declaration?

In effect they did, twice. They just didn't call it that, quite. Although both resolutions, one authorizing use of the Armed Forces to prevent another terrorist attack, and the other the use of force against Iraq, did mention the "War Powers Resolution". The latter can be read here, while the former can be perused Implementing language on Iraq:

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The anti terrorism resolution states:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

If the 2nd Ammendment was interpreted by liberals the same way they interpret all the other Ammendments; every man, woman and child in the country would be required to not only own at least one firearm but also demonstrate proficiency with it on a regular basis.

That would come under Congress power to provide for arming the militia. The second amendment states what govenment may not do, while the militia powers of Art. 1 Section 8 and Art 2 Section 2 state what it can do. It can, and it has in the past, required ownership of arms and ammunition. It can also require demonstration of proficient.

Can you imagine all the wailing an knashing of teeth if it tried to exercise those powers today? Be fun to watch.

The Swiss have somewhat similar requirements, although they provide the weapon and ammunition, but the individual is required to keep it, and occasionally show some proficiency with it. And it's either an assault rifle, a battle rifle (for the older gents) or a pistol (for the officers). The individuals are free to practice as much as they wish with their issue rifle, although they can't shoot up the "ready ammo". They can purchase ammo, heavily subsidized, at a local range. Technically they are supposed to shoot up all they buy at the range, but they are free to buy commerical ammo at full price for their issue weapon. Wish it were that way here. I'd shoot my battle rifle more, and my 1911A1 a little less.

Re: Your #188 above:

You do have a good argument to make that a challenge to the NFA can be made on constitutional grounds, I will not argue that point. But I referred to the NFA as a matter of fact, by which I mean that it is a law currently on the books that is enforced and its enforcement is a matter of "settled law," unless and until it is challenged and overturned in the courts.

But again, pointing out that it is a matter of "settled law," does not preempt or preclude a constitutional challenge putting forth the arguments you have made. And while I believe your arguments have merit, it is my opinion that the courts would not sustain it owing to the "settled law" principle I have cited.

I'm not pro-gun control El Gato, don't make the mistake of lumping me together with that crowd. My comments have been directed to explain the law as it is.

"Actually that's not quite right either. The early militia acts specified what weapons the (free white male) citizens *must* own, but did not restrict what they *could* own."

True, and I'm well aware of that requirement. But there is a VAST difference between saying "thou shalt own...." a specific tool required by a job government requires, and saying "thou shalt not...." own anything OTHER than that. The requirement for citizens to show up with a specific set of weaponry is literally as old as the concept of militia.

". . . Prove that ANY law of the time--either state or federal, limited what arms a private individual was allowed to own . . ."

To put together comments from two earlier posts, it is the National Firearms Act that limits what arms private individuals can own, and it is enforced every day of the year. But the tests which apply to those arms and individual can keep are sustained by the so-called ad absurdum and ad horribilus tests, to which Miller contributed.

Let me quote from an article at Guncite.com, which is a "pro-gun" (if I may use that term) site, very jealous of assaults on the 2nd Amendment:

". . . Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. . . ."

See Section A, "Limitations on the Right of the General Citizenry To "Keep" Weapons," paragraph #2

Guncite.com is not commenting upon the way the law could or should be interpreted (they very much uphold gun owner's rights), they are merely stating the way the law is interpreted, and the fact that the ATF maintains its National Firearms Act Branch (see above) is the proof of this.

Therefore the only limitations upon which arms a private individual can own are those defined under the National Firearms Act, which are only legally-sustainable if they pass the so-called ad absurdum or ad horribilus tests. Beyond that, the law as I understand it recognizes no limits whatsoever to the right of an individual to possess firearms. To say otherwise is to deny that the National Firearms Act is enforced, which is simply untrue, because it clearly is sustained.

And let me say to you as well Warthog, that I am NOT pro-gun control. I am merely commenting upon the law the way that it is. And I will add that I am very comfortable that my neighbor cannot go out and purchase a 105 mm cannon and set it up in his front yard.

I don't know what happened, but the links I put up in my previous msg did not post.

Here they are again: ATF National Firearms Act Page:

http://www.atf.treas.gov/pub/nfab/index.htm

Guncite.com article:

http://www.guncite.com/journals/kmich.html#fn241

They showed up when I tested them in "Preview" mode, but when I checked the source code there seems to have been an insertion of a closing and opening bracket character before the "href" attribute. Don't know how that happened. Sorry about that.

To put together comments from two earlier posts, it is the National Firearms Act that limits what arms private individuals can own, and it is enforced every day of the year. But the tests which apply to those arms and individual can keep are sustained by the so-called ad absurdum and ad horribilus tests, to which Miller contributed."

"Let me quote from an article at Guncite.com, which is a "pro-gun" (if I may use that term) site, very jealous of assaults on the 2nd Amendment:

"". . . Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. . . .""

Nice try at changing the subject--but I'm not gonna buy it.

We're talking about whether the HISTORY of the law of firearms ownership supports the contention that citizens could not or cannot own "BIG DAMNED GUNS" (aka cannons or howtizers) during the history of our (fast-dying) Republic. Not whether the modern legislature has managed to pass unConstitutional abominations in a Court system that ignores the plain language and intent of the Constitution. For further evidence of same, see "McCain-Feingold" and the First Amendment.

When you find any such law pre-dating 1900, let me know.

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