Skip to comments.The Right of the People to Keep and Bear Arms - Neal Shaffer
Posted on 11/25/2002 1:28:31 PM PST by TERMINATTOR
The Right of the People to Keep and Bear Arms
Who does the Second Amendment protect?
By Neal Shaffer
On this much we can all agree: America has a very powerful relationship with firearms. We owe our existence as a nation to the practical application of guns, and just as surely we owe the twinge of some of our greatest tragedies to their misuse. From there the debate branches out in a hundred directions or more, polarizing the American populace along the way. Guns have become a litmus test for political orientation - a window into an entire belief system: pro-gun equals conservative; anti-gun equals liberal. Unfortunately, as is often the case, the breakdown obscures the reality, and honest debate is rendered all but impossible. There is no shortage of opinion, and every question is rhetorical.
As such, gun ownership in America has become a strictly political matter. It is that, of course, but only in part. The right wing has staked that ground happily while the left has embraced the shorthand it provides. What has been lost is that the Second Amendment is also, and primarily, a civil rights issue. In failing to recognize this fact, the Democratic Party, and American liberalism, has lost touch with its roots and failed its constituents. There are two main issues inherent in the gun debate that are sorely in need of clarification: one, the issue needs to be addressed from the perspective of the good of individual citizens and not from a purely political standpoint; two, that where politics do enter the equation it is past time for the left wing of American political thought to be recognized as a natural home for pro-gun argumentation.
Make no mistake: the right to own a gun is guaranteed by the Constitution.
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.
There is nothing ambiguous about this, the Second Amendment. Furthermore, it is far from coincidental that it is the second amendment. The rights to free speech, assembly, and religion are the cornerstones of a free society. The architects of our government correctly foresaw that these rights would face encroachment, and the constitutional right to gun ownership provides teeth for what would otherwise be a hollow proclamation. Anti-gun activists have seized on the "well regulated militia" clause and used it to claim that an individual right to bear arms is not built into the Constitution. Their substitute interpretation is that the Second Amendment guarantees a collective right, and that it exists only to protect entities such as police and the National Guard in their mission to protect us against a standing army or occupying force. The obvious flaw in this argument is that such entities are governmental, and as such do not exactly qualify as "the people." Having said that, it's fairly easy to see why someone predisposed to be anti-gun would believe that the rights preserved by the Second Amendment are general and not individual. There is no shortage of available quotations from the founding fathers to refute this idea, but the best is perhaps this (from Thomas Jefferson):
Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
Jefferson's anticipation of the current state of affairs is nothing short of amazing, and he illuminates a key point: the heart of the Second Amendment is that it guarantees the right of self-defense. One obtains a firearm to guard oneself against the very real potential that he or she will be attacked. "Security" need not be construed as broadly as it usually is. A people are free when their government does not encroach on their inborn liberties and they can move without fear through their chosen environment. Personal security, which is to say the ability to protect oneself from harm, goes hand in hand with societal security, which is to say the collective knowledge that a given governmental agency will not infringe on inborn rights.
As sad as it may be, America is a crime-ridden place. Culturally speaking, we have softened greatly since the days of Jefferson. When copious quantities of food, entertainment, and information are available with little effort it's only natural that a people will lose touch with the harder edges of existence. The appeal of the liberal argument against guns (and, whether they admit it or not, against self-defense) is an emotional one. Guns represent violence, and many people (particularly tree-huggers in the suburbs who view the purchase of organic bread as a political act) are all too ready to live as if violence is an abstraction that can be defeated with ideology. To these people it is only natural to assume that the police will protect them.
This has become the core argument of American liberalism and the Democratic Party. Doing for oneself is infinitely more difficult than having others perform the task, and difficulty does not sit well with Million Mom Marchers. They are afraid from a distance, so rather than act to allay that fear they work to find new homes for the faith that such fear will never come to fruition. They see an event such as the Columbine shootings, or the recent sniper killings, and read it as another example of why guns need to be outlawed. Their argument is that if nobody has a gun then nobody can use it to kill. Lost completely in their argument is the obvious fact that the problem is violence, and a person inclined to violence will use whatever tool is at hand to carry it out. If the police and the government were capable of protecting us against such acts, why did it take them so long (and why did it take an "ordinary" citizen) to catch the sniper suspects?
(It's important to note, as an aside, that the Republican Party is no more inclined to represent the real interests of the people than are the Democrats. The Republican pro-gun stance is the right one constitutionally, but they fail in that they would like people to fend for themselves completely, often to the point where it borders on social Darwinism. It's simply unrealistic. Restoring the right to self-defense will not solve the crime problem, but it certainly won't hurt. The Republican Party is not the problem where the gun argument is concerned. They are the problem in a number of other areas where crime is concerned, but we are concerned here only with the question of an individual right to effective self-defense.)
The Second Amendment, like much of the Bill of Rights, has been weakened by the courts. The most commonly cited defense of the liberal position is a 1939 decision in the case of US v. Miller. In it, the Supreme Court held that because of the militia language, the "obvious purpose" of the Second Amendment was to guarantee a collective and not an individual right. Other courts have held similar positions over the years. However, case law is a matter of interpretation, and all one has to do is take a look at relevant Fourth Amendment cases to see that the courts are not always the best custodians of liberty. Furthermore, the 1930?s were a troubled time in American history. The Great Depression had given rise to political activism, and with that activism often came violence. Without attempting to speak for the Court, it's logical to speculate that such violence entered into their thought.
Even if it didn't, the truth does not change. Regardless of the opinions of individual politicians or judges the Second Amendment still exists, and exists for a reason. If we give up our right to self-defense we place ourselves at the mercy of criminals, corrupt officials, and chaos. Do we really want to place that kind of trust in a governmental system that spawned the cops who beat Rodney King and a President who wants to wage illegal war with Iraq? Perhaps, if we are fools.
To see what might happen were we to plunge completely into this way of thinking, we need only look at other nations. In both England and Australia (countries not dissimilar to our own) private gun ownership is illegal. We needn't indulge in questions of cause and effect, since the causes of crime are varied and complex. Instead, what we can see is that there has been absolutely no decrease in crime as a result of the abolition of personal gun ownership. None. (Source: "Average Annual Percentage Change in Recorded Crime, 1987-1997," International Comparisons, Criminal Statistics, England and Wales, 1997, The Stationery Office; and "Violent Deaths and Firearms in Australia: Data and Trends", Australian Institute of Criminology, 1996).
The examples are equally potent at home. States (such as Maryland) with strong gun control laws have likewise seen no decrease in crime. In fact, Baltimore, Maryland is one of the more crime-ridden cities in the country. Conversely, in states where right-to-carry laws have been liberalized, FBI statistics show that violent crime has gone down. In addition, states with "shall issue" (as opposed to "may issue") concealed carry laws have homicide rates 3% lower, robbery rates 26% lower, and total violent crime rates 13% lower than their gun-free counterparts (Source: Crime in the United States 1996, FBI Uniform Crime Reports). Gun control may very well be a nice idea, but it does not work.
What remains is this: how does the gun issue affect the average citizen? This is where the civil rights aspect of this issue should be most clear. Whatever chance one has to be victimized by a violent criminal will exist regardless of any governmental policy. If you have been chosen as a target then a target you are. Whether the criminal who has chosen to target you is carrying a gun or not is a matter of simple chance. What is clear is that if you have the right to own a gun to protect yourself, and you choose to exercise it, your chances of surviving the attack and, furthermore, of preventing the same attack from happening to someone else are infinitely (ridiculously) higher than they would be if you were forced into passivity by your desire to obey a gun control law. John Lott, Olin Law and Economics Fellow at the University of Chicago Law School, demonstrated conclusively that states could dramatically reduce violent crime rates by adopting concealed carry policies. Perhaps this is because though less than 1% of eligible citizens obtain concealed weapons, criminals don't know who those 1% are.
This doesn't mean that, if you are philosophically opposed to owning a gun, that you should own one. Nor does it mean that preventing convicted criminals or diagnosed misfits from owning a gun is a bad thing. What it means is that the choice should be left up to the individual, not to a government whose intentions may or may not be good.
Our model should come from the Black Panther party. When the civil rights movement was truly a struggle of individuals against tyranny, the Panthers made a regular habit of conducting armed patrols of their neighborhoods. The police and the government were not only failing to protect; they were in a mode of active attack. We are not, as a culture, currently facing any situation of that gravity. But who is to say we won't? The Black Panthers were not right-wing good old boys. They were not NRA zealots. They were people who cared about themselves and their community and who chose to act on that concern. The left wing in America needs to remember its roots. Furthermore, we all need to rethink our trust, and start recognizing certain fundamental realities. It would certainly be nice if there were no violence, no threats, in America. Until that day comes, why are we so willing to give in, and to demonize those who choose not to?
Therefore, the SC remanded the case back to the lower court, thus enabling leftists everywhere to claim Miller as "their case", even though a careful reading clearly demonstrates that this is a pro-RKBA case.
(The way the liberals read it)
A group of thirty young black men and women, dressed in black leather jackets, berets, and dark glasses, crosses the lawn to the steps of the state capitol. Many of them are armed with shotguns, though they are careful to keep the weapons pointed towards the sky. As they approach the entrance to the capitol building, Governor Ronald Reagan, speaking to a cluster of schoolchildren nearby, catches sight of their advance, turns on his heel, and runs.
Still marching in tight formation, the group reaches the steps, faces the crowd, and listens attentively as their leader, Bobby Seale,  reads Executive Mandate Number One of the Black Panther Party for Self-Defense to the startled audience. The mandate, addressed to the American people in general and the black people in particular, details the terror, brutality, murder, and repression of black people practiced by the racist power structure of America, and concludes that the time has come for black people to arm themselves against this terror before it is too late. 
Cameras flash as Seale finishes reading and the defiant group proceeds into the building. One wrong turn, and the delegation stumbles onto the Assembly floor, currently in debate over the Mulford Act, aimed to prohibit citizens from carrying loaded firearms on their persons or in their vehicles.
Chaos ensues: legislators dive under desks, screaming, Dont shoot! and security guards hurriedly surround the party, grabbing at weapons and herding everyone into the hallway. All the while cameramen and reporters run back and forth, grinning in anticipation of tomorrows headlines.
Who are you? one manages to shout before the assembly is led into an elevator. Sixteen-year-old little Bobby Hutton is the first to reply, and his words remain an echo in the hallway just before the doors slide shut with a soft hiss:
Were the Black Panthers. Were black people with guns. What about it?
Members of the Black Panther Party in the Capitol, Sacramento, CA, May 1967
Agreed that this is a generally a good, pro-gun 2nd Amendment piece, especially coming from a liberal. However, I'd like to differ with you slightly, or rather to finish your argument. What the USSC said was that it was not "within judicial notice" that a short-barreled shotgun was (and here I paraphrase) a piece of equipment that would contribute to the efficiency of a well-regulated militia. The operative phrase is "not within judicial notice." Miller won at the circuit level, and was released from prison. Being a scumbag, he promptly disappeared. Not being paid, his lawyer didn't show up for oral argument at the USSC when the government appealed. Then the government attorney failed to point out (contrary to his duty as a lawyer) his opponent's obvious argument that such guns were, in fact used with great efficiency in WW1, only 21 years earlier (they were called "trench brooms," since they very efficiently and effectively cleared trenches of live enemies). It is ONLY the fact that the USSC had no "judicial notice" of this that allowed the government to win this case; otherwise, the 1934 NFA would be a short-lived and forgotten law.
I do dispute your contention that the only thing protected by the 2nd Amendment is "standard military issue" weapons. First of all, the 2nd Amendment protects "arms," which is a very wide general catagory, rather than "standard military arms," which is far less broad. Second, even by the standard set by Miller, ANY weapon used with effect on the battlefield would be protected. Look at what was used in WW2, which the US joined only 2 years after the Miller case: not just Garands, full-auto Thompsons and M-1 carbines, but also M-3 "greasegun" submachine guns, .30 and .50 caliber machine guns, single shot "Liberty" guns dropped by the millions to resistance movements across Europe, pen guns, hand grenades, silenced guns of all kinds, etc. Oh, and short-barreled shotguns. In other words, ANY weapon used on the battlefield that can be carried by a single person is protected by the Miller standard, and the NFA should be struck down in its entirety, as should the 1968 Gun Control Act. Now, in 2002, you and I should be able to walk into our local hardware store and buy a full-auto M-16, a SAW, or any of the standard infantry weapons of ANY army in the world - but also ANY weapon that would be of any effect on any battlefield (so that if a futurist weapon were developed, but not adopted by any army, we should still be able to buy it). I am not holding my breath waiting for this to declared legal, but it should be. Someday, perhaps, a 2nd Amendment case will come before the USSC, and we'll see the wrongs of the past corrected. One can only hope, and perhaps a bit more, now that Bush's nominees (whom I would generally expect to be strict constructionists) can actually get a fair hearing. We'll see.
And I expect it's safe to say that the feds are confidant that Miller's body will never be found.
The Supreme Court did no such thing in Miller. To the contrary, it went off on its own finding that a sawed off shotgun did not constitute a "militia" weapon, and cited in passing many state statutes in support of the truism that the "militia" meant all able bodies males. Miller is shaky law anyway because the defendant's side was never argued before the Court.
(The way the liberals read it)
Yes, see this thread I posted earlier.
Re-arranging phrases for clarity.... The Second Amendment guarantees to the citizen the right to keep and bear weapons for the preservation or efficiency of a well regulated militia.
Good post. I agree with the contention that any weapon that couldbe carried by a "militiaman" is protected for keeping and bearing. This includes bazooka, rocket launcher, and all matter of autos.
I believe that "group weapons", IOW, ones that would commonly be controlled by a platoon, etc., which include tanks, tactical nukes, artillery, air power, are more rightly controlled by "groups" of citizens, and that this is where the National Guard comes in.
This division of "arms" effectively kills the argument of those who whine "So you would be OK with your neighbor driving down the street in a tank?"
Interesting that the 1968 Gun Control act was then enacted. Seems to support the contention that much of the early gun control was racist in motivation.
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