Skip to comments.Analyzing The 2nd Amendment
Posted on 07/16/2004 8:59:00 AM PDT by neverdem
The first in a series of articles on the importance of the upcoming general election
Does the Second Amendment guarantee a right to states rather than an individual right to choose to own firearms? One clue to the answer is looking at who supports each position. The few law-review articles supporting the states'-right view all come from advocates, most of them employed by or associated with anti-gun groups.
The Verdict of Scholarship Yet, intellectual honesty compels many far more important scholars to accept the standard model of the Amendment as an individual's right despite personal anti-gun feelings. Famed constitutional lawyer and Harvard law professor Alan Dershowitz, who defended O.J. Simpson and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed. Yet, says Dershowitz: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Another former ACLU national board member, Duke Law School's William Van Alstyne, who is among the premier constitutional scholars of modern times, contemptuously dismisses the states'-right view. "If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century for no known writing surviving from the period between 1787 and 1791 states such a thesis." He emphasizes that to take civil liberties seriously requires respecting the Second Amendment no less than freedom of speech and religion and the other rights in the First Amendment. [Van Alstyne, "The Second Amendment and the Personal Right to Arms," 43 Duke Law Journal 1236 (1994).]
Another major figure in modern constitutional law is Harvard law professor Lawrence Tribe who is anti-gun and a liberal. Earlier versions of his famous text endorsed the states'-right view, but, having examined the historical evidence for himself, he now reluctantly admits the Amendment guarantees "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." [Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000)].
RIGHT OF THE PEOPLE Anti-gun writers cite my article (83 Michigan Law Review, pp. 204-273) as the definitive standard-model treatment. Yet, remarkably, these anti-gun writers give only that one initial mention. If they have answers to the 50 pages of evidence I offer for the standard model, they neglect to offer them. So I shall limit myself to just two examples of my unrefuted evidence.
Written by James Madison, the Bill of Rights was enacted as a single document. Whenever it says "right of the people," it does so to describe individual rights. To ignore this point you must think that in the First Amendment Madison used "right of the people" to describe an individual right. But then, 16 words later, he used it in the Second Amendment meaning a state's right. But then, 46 words later, the Fourth Amendment says "right of the people" meaning an individual right again. And then "right of the people" was used in the Ninth Amendment to mean--guess what--a right of the people.
In fact, throughout the Bill of Rights and the Constitution the word "right" is always used to refer to something individuals have and never used to refer to powers possessed by government. Such powers are always called "power" or "authority."
THE PURPOSE OF THE MILITIA Anti-gun advocates imply from the Amendment's reference to a "well-regulated militia" that government can regulate gun ownership. But that is totally outside the 18th century usage of "well regulated," which means "well trained" and "operating properly." Likewise, anti-gun advocates think the mention of militia show the right to arms applies only to states arming their militias. But in the 18th century "militia" did not mean "army" or "soldiers." The militia was a system of laws under which every man and every household was to have guns (unorganized militia), while most men of military age were required to appear with their guns when called out for drill or war (organized militia). The arms of the militia were the personally owned arms of its members.
It is somewhat misleading, however, to see the Second Amendment as a right to have arms for collective defense against tyranny or foreign enemies. The Amendment's central theme was what our Founding Fathers saw as the basic human right to possess arms for individual self-defense. But the Founders did not misconstrue that, as we so often do, as just a right to defense against nonpolitical criminals. The Founders believed individuals needed to be armed for political self-defense (e.g., Jews resisting the Gestapo) and that, in the ultimate extreme, people must join together to overthrow tyranny. (Note that the literal meaning of the term "revolution" was an uprising seeking to bring government back to its original free form, not to produce some new form.) [Kates, "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87 (1992).]
WHAT LAWS DOES THE AMENDMENT PRECLUDE? The NRA's experts like Prof. Steve Halbrook believe the Amendment does more than I feel it does. And another expert, Prof. Nelson Lund, thinks neither Halbrook nor I interpret the Amendment broadly enough. We all agree, however, that the Amendment guarantees every responsible law-abiding adult freedom of choice regarding guns.
So assault-weapon bans are unconstitutional. "Assault weapons" are just semiautomatic rifles differing only in that they are down-powered from those of the WWII era. Banning them infringes on the freedom of law-abiding, responsible adults to choose which firearms they wish to have. Magazine limitations are invalid for the same reason.
So-called Saturday Night Special bans are valid only insofar as a particular model of firearm is provably unreliable or dangerous to use in the manner it is reasonably foreseeable to be used. The reasons for most SNS bans--that the guns are small, light and/or inexpensive--are invalid under the Second Amendment. Nor can states push gun prices to astronomical levels by requiring that guns incorporate dubious or unnecessary safety features.
LIMITS ON THE AMENDMENT The Amendment covers only small arms. Neither RPGs, cannons, grenades nor the other super-destructive devices of modern war are covered.
Guns may be banned to juveniles, convicted felons, aliens and the insane, all of whom have been excluded from the right to arms in free societies dating back to ancient Greece. (Juveniles have the right to use firearms under parental supervision.)
Though Professors Lund and Halbrook disagree, I think gun registration and license requirements to own are valid. What is invalid is licensing as traditionally practiced in New York. For licensing to be valid, licenses must be granted to all law-abiding, responsible applicants and within some very short period like 72 hours. If New York cannot manage to accomplish this then it cannot constitutionally require a license to own a firearm.
The right to bear arms includes a right to carry them but not concealed. On the other hand, if a license is required for concealed carry, equal standards must be applied. If retired cops routinely get licenses, so must everyone else who may be in danger from their connection with the justice system. And if the wealthy and influential routinely get licenses, so must the entire responsible, law-abiding adult populace.
VINDICATING THE RIGHT TODAY The Supreme Court has briefly referred to the Amendment in almost 40 different opinions, all showing that it guarantees an individual right to arms. But the court has never provided a full and lengthy exposition of the Amendment. In fact, several lengthy and considered opinions would be required to illuminate the Amendment's various aspects.
To any judge willing to follow the law, it must be clear that the Amendment guarantees the freedom of all responsible, law-abiding adults to choose to possess firearms for personal and family defense. We must depend on the president to appoint such judges and the Senate to confirm them.
Several vacancies on the U.S. Supreme court are likely during the next presidential term. Many appointments are also expected on lower federal and appellate courts. The president and members of the senate who are elected in November will play a major role in the rights of gun owners for many years.
Since the Constitution contemplates the private ownership of warships (Letters of Marque in Article 1 Section 8) I don't think it reasonable to limit arms in this manner. We should look at the practice of the early Republic, where there were militia artillery units. Functionally we should ask ourselves, which weapons are needed to overthrow our government in the event that it becomes a danger to our liberties? Those weapons are protected by the 2nd Amendment. In this day and age that means jets and tanks.
Most "guns" on privateer craft were the 1" - 3" swivel guns, not really big.
Then what about the extremely good point about privateers?
Excellent snip. This shows some of the paradoxes that confront the SCOTUS on a near-daily basis. With the Ninth Circus Court of Appeals ignoring over 200 years of precedence, they once again show just how out of touch they can be.
And so y'all agree to appoint another tyrant, another beyond Sarah Brady, to define a cannon's caliber. Is .50 inch an 'arm' or a cannon?
Is a .223 inch bursting charge fired from an 'arm' or a cannon? Come come, lets be specific about the hairs we split.
Which part of 'infringed' do you not understand? Or are y'all Narional Reasonable-regulation Ass. members or worse?
Funny you should mention Militia...look at my profile.
I do Rev-war re-enacting. That's a .69 Charleville Corrige' AN IX 1777 I am holding...it does pack a punch :)
Hah? You must be kidding! Swivel guns were few. How many ships have you ever seen w/more than 4 swivels, mounted either fore or aft? How could these guys accomplish anything w/o full-size naval/siege cannon bristling along the bow, under deck?
The issue regarding privateers had nothing to do with the People's right to keep and bear arms. The Congress granted letters of marque to ships of the line that could be used in times of National crises. We have the classic Apple vs. Orange line up with this.
Sorry - not true. The range of ships used by privateers was quite large. They did not appear to include ships of the line, but did include vessels up to the size of navy sloops and cutters. Over 1700 letters o marque were issued in the revolutionary war. http://www.nps.gov/revwar/about_the_revolution/privateers.html
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, The Pennsylvania Gazette, Feb 20, 1788
Do I need to post Barbary Pirate info as well? Or will you accede the point that the Second covers much more than just muskets and calvary sabers?
Pay special attention to post #29
You don't understand the use of letters of marque at all. They were used by many countries, not just ours. Armed merchant men were common at the time. It absolutely has bearing since armed merchant ships existed prior to the issuance of a letter of marque. A letter of marque was not a permit to arm a ship. It was a hunting license.
.50 cal falls under the definition of arms. It isn't until you break into the 1.0 cal that the definition becomes grey. We folk in the military classify all arms as ordnance, but only for supply purposes. The term is accepted as artillery or delivered weaponry.
If the founders wanted to the government to regulate firearms, they would have said so. It's that easy.
and they couldn't. Though I am not into Naval warfare, I do know some of the militia gunboats consisted of such.
See post 10?
"In fact, the reason the FedGov hired so many privateers was BECAUSE they were ***already*** armed."
So why didn't they disarm (or perhaps, disordnance?) these men prior to any extracurricular service if only small arms are included in the 2ndA?
Largest weapon I ever shot was a .458 Win Mag and I have NO desire to try that .69 caliber cannon LOL!
You would love it, I load a 65grain charge and it has litle kick, but big bang. A 12 gauge has more kick.
All gun laws are unconstitutional. If I want to park an fully loaded A-10 in my yard as long as I can afford it it is non of the Govt. business.
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.