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 one thing that is clear in the intent of the framers is that they felt that law-abiding citizens could arm themselves. They also didn't feel that gun ownership should be completely unregulated, as made evident in their opening words "A well-regulated militia being necessary to the security of a free state . . ." (I'm going from memory here).

But with those two points in mind, the only real debate we should be having is over what constitutes the proper mode of regulation -- and we all believe in regulation whether we recognize it or not because none of us (God I hope) would permit ordinary citizens to pack 80 mm howitzers -- and how that regulation can best be implemented.

My own personal take is that 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 would stop short of true military weaponry). No waiting period, no delays, no other preconditions beyond proving they are a law-abiding citizen should apply.

I've been reading Elliot's Debates. Basically, the minutes of the First Congress, where they were discussing the New Republic, the limits of the Federal Power, the usurpation of State powers left over from the Confederacy, the protections of fundamental Rights to prevent States and cities from infringing on those Rights REQUIRED to be considered "free", ect...

Today's government bears ZERO resemblance to what the Founders set up and argued about.

This bozo has the nerve to call himself a law professor? Students at UT Law, you deserve a refund. The Constitution has stood for over two hundred years. How many other Western democracies can say that they have been under the same governing document for that time? And contrary to Levinson's statement it is actually a marvel of clarity, when one discounts emanations from the penumbras!

In the twentieth century, estimates are that 34 million people were killed in wars.

The same study estimates that 196 million people were killed by their own governments.

To all the liberal lurkers: you may say you hate war, but defending yourself in war is better than being quietly killed because of your politics.

Arm everyone.

It is the right of the PEOPLE WHO BEAR ARMS because it is THEY who make up the militia.The founding fathers never had a national guard in the official sense and they never intended the constitution to be changed.The possibility of change is a liberal lie because they believe the constitution to be a "living document",therefore using this fallacy to create gun control.

"Actually, the framer's intent is only unclear to folks who WANT it unclear. For everbody else, there are the Federalist Papers, which make the intent very clear indeed."

I liked that so much I decided it should be repeated.

And we also have James Madison's Notes of Debates in the Federal Convention of 1787

My own personal take is that 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 would stop short of true military weaponry). No waiting period, no delays, no other preconditions beyond proving they are a law-abiding citizen should apply.

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.

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

The Amendment is clear. What is fraught with ambiguity are the morons (liberals) who cannot read.

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

Murky? 'Shall NOT be infringed' is clear and unambiguous language. Only those against the 2nd Amendment would try to redefine it.

Molon labe!!

Read it plain. Like the Founders said to. "Supreme Law of the Land" means exactly that. "... or Laws of any State to the Contrary notwithstanding" also means EXACTLY that. When it also states, "SHALL NOT BE INFRINGED", with no qualifier on who may not do the infringing, then even a City's "home rule" provision shouldn't be able to nullify that Right's protection.

If your local ordnance says "no open carry of handguns", that is plainly an "infringment". If your States requires you to prove your innocence and pay extra taxes and fines to exercise said Right, that is ALSO an "infringement" as well as a violation of self incrimination.

The current legal fiction does not adhere to this. Nor will you find many justices willing to uphold their Oath under the Constitution and rule this way. The government has entirely too much to lose should things return to the way they should be.

But with those two points in mind, the only real debate we should be having is over what constitutes the proper mode of regulation -- and we all believe in regulation whether we recognize it or not because none of us (God I hope) would permit ordinary citizens to pack 80 mm howitzers -- and how that regulation can best be implemented.

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People. --Tench Coxe

I think it was fairly clear that the founders intended the militia to have access to modern military arms, and that the militia did not answer to the government.

IOW, yes, if some people got together to form a civil militia then it should legally be allowed to procure field artillery if it so decided. As long as it was well-regulated, and by that I mean reasonably disciplined, the government wouldn't legally have a leg to stand on. That, of course, wouldn't stop them from arresting everyone involved.

"...and we all believe in regulation whether we recognize it or not because none of us (God I hope) would permit ordinary citizens to pack 80 mm howitzers -- and how that regulation can best be implemented."

Learn history. "Back in the day", private individuals and institutions were allowed to do EXACTLY that. What do you think those PRIVATE sailing ships were armed with?? Spit-ball shooters???

"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."

I accept that as sounding about right. I have read commentaries and heard discussions of Miller, but I have never read the text of the decision itself and on important matters I generally like to see for myself what is stated. But I have little doubt that some standard rational beings could recognize as "reasonable" [I do not necessarily refer to libs as "rational beings"] has been applied as the basis for regulation.

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.