Posted on 05/12/2002 4:10:21 AM PDT by The Raven
TANFORD, Calif. — The Bush administration has found a constitutional right it wants to expand. Attorney General John D. Ashcroft attracted only mild interest a year ago when he told the National Rifle Association, "The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Now, briefs just filed by Solicitor General Theodore Olson in two cases currently being appealed to the Supreme Court indicate that Mr. Ashcroft's personal opinion has become that of the United States government. This posture represents an astonishing challenge to the long-settled doctrine that the right to bear arms protected by the Second Amendment is closely tied to membership in the militia.
It is no secret that controversy about the meaning of the amendment has escalated in recent years. As evidence grew that a significant portion of the American electorate favored the regulation of firearms, the N.R.A. and its allies insisted ever more vehemently that the private right to possess arms is a constitutional absolute. This opinion, once seen as marginal, has become an article of faith on the right, and Republican politicians have in turn had to acknowledge its force.
The two cases under appeal do not offer an ideal test of the administration's new views. One concerns a man charged with violating a federal statute prohibiting individuals under domestic violence restraining orders from carrying guns; the other involves a man convicted of owning machine guns, which is illegal under federal law. In both cases, the defendants cite the Second Amendment as protecting their right to have the firearms. The unsavory facts may explain why Mr. Olson is using these cases as vehicles to announce the administration's constitutional position while urging the Supreme Court not to accept the appeals.
The court last examined this issue in 1939 in United States v. Miller. There it held that the Second Amendment was designed to ensure the effectiveness of the militia, not to guarantee a private right to possess firearms. The Miller case, though it did not fully explore the entire constitutional history, has guided the government's position on firearm issues for the past six decades.
If the court were to take up the two cases on appeal, it is far from clear that the Justice Department's new position would prevail. The plain text of the Second Amendment — "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" — does not support the unequivocal view that Mr. Ashcroft and Mr. Olson have put forth. The amendment refers to the right of the people, rather than the individual person of the Fifth Amendment. And the phrase "keep and bear arms" is, as most commentators note, a military reference.
Nor do the debates surrounding the adoption of the amendment support the idea that the framers were thinking of an individual right to own arms. The relevant proposals offered by the state ratification conventions of 1787-88 all dealt with the need to preserve the militia as an alternative to a standing army. The only recorded discussion of the amendment in the House of Representatives concerned whether religious dissenters should be compelled to serve in the militia. And in 1789, the Senate deleted one clause explicitly defining the militia as "composed of the body of the people." In excising this phrase, the Senate gave "militia" a narrower meaning than it otherwise had, thereby making the Ashcroft interpretation harder to sustain.
Advocates of the individual right respond to these objections in three ways.
They argue, first, that when Americans used the word militia, they ordinarily meant the entire adult male population capable of bearing arms. But Article I of the Constitution defines the militia as an institution under the joint regulation of the national and state governments, and the debates of 1787-89 do not demonstrate that the framers believed that the militia should forever be synonymous with the entire population.
A second argument revolves around the definition of "the people." Those on the N.R.A. side believe "the people" means "all persons." But in Article I we also read that the people will elect the House of Representatives — and the determination of who can vote will be left to state law, in just the way that militia service would remain subject to Congressional and state regulation.
The third argument addresses the critical phrase deleted in the Senate. Rather than concede that the Senate knew what it was doing, these commentators contend that the deletion was more a matter of careless editing.
This argument is faulty because legal interpretation generally assumes that lawmakers act with clear purpose. More important, the Senate that made this critical deletion was dominated by Federalists who were skeptical of the militia's performance during the Revolutionary War and opposed to the idea that the future of American defense lay with the militia rather than a regular army. They had sound reasons not to commit the national government to supporting a mass militia, and thus to prefer a phrasing implying that the militia need not embrace the entire adult male population if Congress had good reason to require otherwise. The evidence of text and history makes it very hard to argue for an expansive individual right to keep arms.
There is one striking curiosity to the Bush administration's advancing its position at this time. Advocates of the individual-right interpretation typically argue that an armed populace is the best defense against the tyranny of our own government. And yet the Bush administration seems quite willing to compromise essential civil liberties in the name of security. It is sobering to think that the constitutional right the administration values so highly is the right to bear arms, that peculiar product of an obsolete debate over the danger of standing armies — and this at a time when our standing army is the most powerful the world has known.
Jack Rakove is a professor of history and political science at Stanford Uni versity and the author of ``Original Meanings: Politics and Ideas in the Making of the Constitution.''
Since the Founders didn't like standing armies, they favored a volunteer service. They favored a subservient government which, serviced the people and didn't take away rights.
Besides, it doesn't say "...the right of the militia...." to bear arms.....it says " .... the right of the people to keep and bear arms."
But worse yet, the author seems to think we should have an Amendment out there that no one understands. That we should wait for a liberal judge to "read it correctly." (ie - the way he THINKS it should have been). And while we're waiting, we better not interpret it the way it was written.
Hogwash !!!!!!!!!!!
The Founders hated government....the LAST thing they would do is grant the government this power.
The Second Amendment was written for soldiers?
The New York Times, all liberals, urban high school students, and most of the new immigrants flooding our country, all think that the american people of 1789 would not have created a new country called the United States until and unless the second amendment was included, thereby allowing only the men in our "army" the right to have a gun.
Unfortunately, the mental processes of liberals and of our new immigrants from asia and latin america is not very deep.
Just why they think only America needed a "Second Amendment" to ensure that our troops had guns is beyond me, yet that is what they believe.
It is only a matter of time before these people become the majority of our voters.
Last night, Milton Freidman said something like...
"They [politicians] swear to uphold the Constitution and when they get into office, they attack it."
We do have a process to amend the constitution, and for some reason, it never comes up. The libs like to have this concept of [as Al Gore said] a "living and breathing" Constitution - immune from the amendment process.....
The libs have bypassed the Constitution before:
Abortion, drugs, interstate commerce, social security, ....and on and on....
Perhaps, one day they will "read into it" that a social dictatorship solves all their problems. Just toss that 200+ year old document in the trash.
A total, out and out lie and he knows it. The Supreme Court has ruled that the "people" of the second amendment are the same "people" as the ones in first, fourth, and tenth amendments. Guess he missed that one or either he not only reads them like he wants to he also only reads the ones he wnts to.
He must think we are little children and that he's reading a fairytail to. You do not grant a state or goverment rights you grant them power. The whole sum of the Bill of RIGHTS was to make sure certain rights where retained by the PEOPLE.
PEOPLE that's you and me not, Mississppi and the United States.
This man does not write what he believes to be true, he writes what he wants others to believe is true.
The entire point of the Constitution guarantying a Republican form of government and a citizen's Bill of Rights is to protect the rights of the minority from the whims of the majority.
The fact remains that when a significant portion of the American electorate favor the regulation of firearms they can only Constitutionally achieve what they favor by amending the Constitution.
Talk about twisting words!!
Molon Labe
What does THIS have to do with the price of tea in China? His statement is ludicrous simply because it doesn't address the question surrounding what the Amendment SAYS. He's trying to argue his point by arguing a different point; the two are unrelated. Whether or not there is a militia or a standing army does NOT change the wording of the Amendment, that the right of the PEOPLE to keep and bear arms may NOT be infringed!
And in the First Amendment, we read: Congress shall make no law . . . 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.
So I guess that means that the "people" referred to regarding the right to peaceably assemble and petition for redress of grievances must be the state legislatures.
This is absurd! What is the point of securing the state's "right" to have armed soldiers, militia or police? Such "right" existed in Soviet Union and Nazi Germany and securing it by the amendment would be COMPLETELY superfluous.
The only sense as a constitutional right this amendnment can have is that first:
people have right to own guns
second:
armed individuals have right to organise into armed grass-root militia units.
I see an analogy with the First Amendment:
or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
It also contain dual aspect - freedom of speech individual and combined in a collective assembly. It means that people can speak alone and if they wish they can organise into a group. There are situations when tyranical government allows individual to beg for something by punish him if he dares to organise a group to demand something.
Same way with the Second Amendment - you can own a gun AND you can organise an armed unit (in an orderly fashion same way as a group demonstration should be orderly).
To claim that the government controlled armed units are intended in the amendment equals claiming the the First Amendment is to provide government run parades (like in a totalitarian country)
And in the First Amendment, we read: Congress shall make no law . . . 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.
So I guess that means that the "people" referred to regarding the right to peaceably assemble and petition for redress of grievances must be the state legislatures.
Is ignorance by omission any less ignorant; ignorance abounds.
It may be worth noting that in U. S. vs. Miller the federal trial court held that the National Firearms Act of 1934 violated the defendants’ Second Amendment rights. After Miller and Layton’s victory in the trial court, defendant Miller was murdered and defendant Layton disappeared.
Thus, when the U. S. government appealed the case to the U. S. Supreme Court, no written or oral arguments on behalf of the defendants were presented to the Supreme Court.
Gun prohibitionists often cite this case for the proposition that the court held that the Second Amendment only protected the right of the states’ National Guard to have government issued arms (i.e., the “Collective Rights” theory). This is not true, in fact, the court held that the entire populace constituted the militia, and that the Second Amendment protected the right of the individual to keep and bear militia-type arms.
The Miller court decided the following:
1) The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.
2) "In the absence of evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."
3) "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."
4) "The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."
Thus, the case stands for the proposition that the people, as individuals had the constitutionally protected right to keep and bear arms that could be appropriate for militia-type use.
The clear meaning of the Second Amendment is that in order for the state to be able to form a well-regulated militia the citizens must have the individual right to gun ownership.
Obliviously, those bent on tyranny for our nation would want to twist these words to suit their agenda. In a time when four of the nine Supreme Court Justices are willing to ignore the Constitution it is serves us well to recall the words of Thomas Jefferson.
Thomas Jefferson, by no means an imprecise thinker, was well aware of this consideration. In commenting upon how the Constitution should properly be read, he said: "On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed.”
I'd suggest that is very good advice.
BTW, prior to submission to the states for ratification, Articles 3 and 4 were combined into Article 3, and Article 5 became Article 4. The states failed to ratify Articles 1 and 2, so Article 3 became the modern day "First Amendment", and Article 4 became the "Second Amendment." So, when you hear propagandists like Jane Pauley of NBC's Dateline state such nonsense as, "Our founders cherished the freedom of the press so much they placed that right in the very first amendment", you will know it is propaganda.
To view any of the first ten amendments without acknowleging they form the whole of
the 'Bill of Rights', merely shows the intent of the author.
Yet ... liberals seem to conveniently have a 'bill of rights' of this, a 'bill of rights' of that.
Like the vaunted 'Patients Bill of Rights'. Must mean something diffenrent when liberals
"give" rights than when the framers acknowledge rights of citizens.
But ... when you see what woeful state education is in, you can understand why and
how liberals can do this.
The Arab leaders must have taught the liberal wackos how to use ignorance of
the people to their advantage.
Liberals can't even get their lies straight. The NFA did NOT make machine guns illegal. In those days, the gun grabbers wouldn't dare ban any kind of gun. Instead, they used the Interstate Commerce Clause to regulate, but not ban, the weapons. They figured this loophole would allow them to place a prohibitive tax on each transfer of a machine gun, allowing them to virtually ban the guns, while claiming to merely apply "reasonable restrictions".
In those days, they knew they could not outright ban any kind of gun. The thought process of the gun grabbers has now degenerated to the point where they think the federal government is the sole source of permission as to who can own what guns. To them, the debate is already over, and it's just a matter of time until the government demands we turn in what little it permitted us to still posess.
Very selective choice of comparison there New York Times. So what does the "People" refer to in the First and Fourth and Tenth Amendments??? Does the NYT's mean to say that the individual in this country doesn't have the right to free speech, assembly, and religion??? And that the individual doesn't have the right to unwarranted search and seizure?
The only long-settled doctrine is the NYT isn't fit to be used as toilet paper.
Name: Jack N Rakove
Title: Coe Professor of History and American Studies and, By courtesy, Professor of Law
Email: rakove@stanford.edu
Organization: University
Relationship: Faculty
Position: Professor
Department: History Department
Work Phone: (650) 723-4514
Fax: (650) 725-0597
Mail Code: 2024
Address: BLDG 200 RM 117
Stanford, California, 94305-2024
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.