Posted on 05/10/2002 8:13:26 PM PDT by GOP_Lady
The Radical Amendment
By EUGENE VOLOKH
Those dangerous radicals John Ashcroft and Ted Olson are at it again. The Second Amendment, the Justice Department has just asserted in two Supreme Court briefs, protects an individual right. People like you and me do indeed have the right to keep and bear arms.
This, a lawyer representing the antigun Violence Policy Center opined, is a departure from what was "the government's position for more than 60 years" -- and an illegitimate one, because "people who happen to be in office temporarily shouldn't use the office to promote their personal views." Unnamed "scholars and gun-control advocates" called this (according to the Los Angeles Times) a "'radical' shift in position" that "alarmed" them.
Our radical Justice Department, though, turns out to be in good company. Supreme Court Justice Joseph Story, probably the second most respected 19th-century justice -- after the great John Marshall -- and the author of the leading early-1800s constitutional-law treatise, also took the view that the right belongs to "the citizens," not the states.
Same for Michigan Supreme Court Justice Thomas Cooley, the leading constitutional-law commentator of the late 1800s. William Blackstone, the leading late-1700s British legal commentator, and a major influence on the Framing generation, saw even the much narrower English right to have arms as an individual right.
Framing-era documents confirm this understanding, as does the text itself. "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," the Second Amendment says. The right belongs to "the people," not the states or the National Guard.
The reference to the "Militia" only reaffirms this. From the Militia Act of 1792 to the current Militia Act (enacted in 1956), the "militia" has meant pretty much the adult able-bodied male citizenry age 17 to 45. Following the Supreme Court's sex equality decisions of the 1970s, it almost certainly includes women, too. The two clauses both stress the Framers' commitment to keeping the citizenry -- not the states or small state-selected groups -- armed.
In fact, from the late 1700s to the early 1900s, the individual-rights view of the Second Amendment was the nearly unquestioned interpretation. Virtually no court or commentator of that era reasoned that the Second Amendment protects the rights of states. Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.
The individual-rights view is also in good modern company. In the 1986 Firearms Owners' Protection Act, Congress specifically reaffirmed "the right of the citizens to keep and bear arms." In 1960, those noted conservatives (or is it "radicals"?) John F. Kennedy and Hubert H. Humphrey both asserted their support for the right of each citizen to keep and bear arms. Some leading liberal constitutional scholars today likewise take this view.
Nor has the Supreme Court held the contrary. The 1939 U.S. v. Miller decision did say that the right extends only to arms that are related to the militia. But it also specifically stressed that "militia" meant "all males physically capable of acting in concert for the common defense," and that ordinarily "these men were expected to appear bearing arms supplied by themselves."
So the Ashcroft Justice Department may be going against the views of past Justice Departments, and of most federal courts of appeals, which have indeed endorsed the states'-rights view of the Second Amendment. But it's returning to a much broader consensus: the view, adopted throughout most of the nation's history, that the "right of the people to keep and bear arms" is as individual a right as "the right of the people to be secure . . . against unreasonable searches and seizures" or "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The right wouldn't be absolute, just like other rights aren't absolute. Forty-four of the 50 states have right-to-bear-arms provisions in their bills of rights, and the overwhelming majority are clearly individual rights. But state courts have nonetheless upheld many gun controls, such as bans on felons possessing guns, or restrictions on certain types of guns that are particularly likely to be used by criminals.
Nonetheless, the right would meaningfully protect private gun ownership. The District of Columbia gun ban, for instance, which prohibits virtually all handguns and requires even rifles and shotguns to be kept locked and unloaded, may well be struck down. This law was upheld under a states'-rights theory by the D.C. Court of Appeals in the late 1980s. But a new challenge in federal court might lead to the law's invalidation.
And the right, if firmly accepted by the courts, may actually facilitate the enactment of modest gun controls. Today, many proposals, such as gun registration, are opposed largely because of a quite reasonable fear that they'll lead to D.C.-like gun prohibition.
But if the courts can make clear that the Constitution takes such a prohibition off the table, this slippery slope concern may become less serious. And some people may thus become willing to support compromise legislation, precisely because the core of the right will be protected -- just as the radical and alarming Bill of Rights commands.
Mr. Volokh is a professor of constitutional law at the University of California, Los Angeles.
Some maybe, but not me. The gun control we already have is patently unconstitutional. Having to ask government for permision to exercise a right? Banning of the current individual infantry rifle? Attempts to ban even semi-auto versions that merely LOOK LIKE the current US infantry rifle? These are Constitutional? I think not. The same holds true of the requirement to have some sort of special ID (FOID) for which you pay a fee, before you can buy arms, or having to jump through all sorts of governmental hoops to be allowed to carry one? Outright bans on carrying openly in most places? No these are not acceptable "compromises". IMHO of course. :)
"The right wouldn't be absolute, just like other rights aren't absolute."
If the our rights are not absolute, then they are nothing more than privileges bestowed upon us by the majority.
That, professor, is not liberty.
I agree with the "not absolute" statement, otherwise there will be no liberty at all. Absolute is a nihilist, or 'might makes right' position that is the political ground of the democrat left. Their attitude towards firearms is that you absolutely do not have an individual right to arm yourself for self defense.
The Bill of Rights list fundamental rights that exist in nature and are fundamental to a person before being listed and 'protected' by the Constitution. i.e., The right of the people to keep and bear arms is fundamental to their existence, therefore the security of freedom in the state depends upon the people being able to man a militia with the proper weapons (well regulated) when necessary. This fundamental right shall not be infringed as it is in countries that have no liberty.
I disagree with this statement. There are reasonable restrictions on most rights. For instance, the First Amendment right to speak your thoughts is not a right to stand outside my house shouting through a bullhorn. You have the right to ask me to listen to your opinion. I have the right to refuse. If I refuse, you do not have the right to force me to listen by shouting in my face wherever I go. You have the right to call me asking that I listen to your opinion. You do not have the right to call me every five minutes until I give you my time. You do not have the right to make obcene phone calls at all.
Regarding the Second Amendment, you (should) have the right to carry a firearm wherever you choose on public property and in most public places. You do not have the right to wave it around in front of my face. You have the right to use your firearm to defend your life, property, and dignity against wrongful assault. You do not have the right to empty your magazine into the side of a hill in a public place just because you think it would be fun. You might be perfectly safe in doing so, but the rest of us have a right not to be alarmed by random target practice.
I realize that when the writer impeaches his own credibility by talking about registration. Maybe someone could argue that registration is helpful because the government needs to know what weapons the militia will have available if called to duty, but that argument would be weak. Whether it is a violation of the right to keep and bear arms, registration has no useful purpose.
On the other hand, no rights are absolute because no rights can be exercised entirely in a vacuum. What we need is reasonable laws. On firearms issues, we will need to repeal tens of thousands of anti-gun laws before we reach the point where the remaining ones are reasonable.
WFTR
Bill
The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.
I shall reserve judgment till I get definitions for "reasonable restrictions" and "unfit persons," and till I know how they propose to determine a particular firearm's suitability for "criminal misuse."
You have confused a "right" with the activity of "exerting" a right, cited in your supporting examples referencing the 1st and 2nd amendment as not being absolute rights.
A common socialist error in reasoning used to convince U.S citizens and citizens of the sovereign states, to abdicate their rights.
"You have confused the fact that rights are not absolute with the rhetoric of those whose irresponsibility is an infringement on others rights."
Would you care to explain this sentence to me? I have no idea what point you are trying to convey.
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