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and Claus von Bulow, is a former ACLU national board member who admits he "hates" guns and wants the Second Amendment repealed.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.
I'm not sure where the Constitution specifies "small arms". Was private ownership of cannons permitted by the founders?
It doesn't make such distinctions. It says "Arms." And the focus is not on "what individuals may own", but rather, what this newly formed general government "cannot do." It is not a "granting of rights", but a "restriction of authority on the United States Government" from infringing the right of the people to keep and bear arms.
Of course, the federlists (?) thought a BOR was absurd, since the Constitution did not grant any powers to the USG to infringe the right(s) of the people (to keep and bear arms). (see Article I, Section 8). Freedom haters have found a way to exploit this as the federalists had feared. FH'ers intentionally misconstrue the meaning (such as "right of the people" vs. power/authority of the state).
I had an incredible discussion recently on the phrase "under the United States" and the scope of its meaning. It does not mean "under the several States". Usage within the Constitution itself demonstrates its proper meaning, as does usage of "right of the people" vs. power of the State (see Amendment 10). No hand waving appeals to tradition or founding principles are need, when the text itself is adequate.
Worst one for me was the 10 gauge magnum. Boy that one had a punch!
W/all due respect to a heavy student of the period, how can that be? Privateers wouldn't be used much if they didn't get good-sized cannon. Swivel guns would be useless against the Barbary pirates!
What happened - no guns before the letters of Marque, then stocked up thanks to gov permission, do their duty, then get disarmed and gov takes over the "ordnance"?
I'm talking ocean-going ships here, not local coastal militia.
Besides, you said "most" - not all - that means some had big cannon. So it seems moot to imply the 2ndA applied only to small arms.
Or did they just not care at the time if you bought your own real guns?
I sighted in the .458 off-hand rather than get a broken cheekbone from the recoil. D@mn thing was made to kill Cape Buffalo.
They weren't under any obligation to do so. Privateers were not citizens. The letters granted were in support of the declaration of war. You hire folks when you don't have enough. In this case, the Congress hired ships and crews, not citizens. The Bill of Rights is a completely different issue, it limited the power of the Federal government over its citizenry. Two separate and distinct issues.
Check this out for details on privateers. http://www.nps.gov/revwar/about_the_revolution/privateers.html
However, as to what the Founders "meant", it is better to find complete historical resources for exactly what they said. And what they meant.
Arms had a broader definition. Ordnance. Rifle. Gun. Mortar. Cannon. Knives. Swords. Even Grenades.
Not true. Many privateers were owned by citizens and manned by citizens. http://www.nps.gov/revwar/about_the_revolution/privateers.html
Let's see campaign finance restrictions designed to stifle Republicans right to free speech, gun control laws, court decisions against public display of 10 Commandments and Christmas trees, laws against "marriage"......hmmmmm.....I gues the democrats don't take civil liberties seriously, even though their holly grail is a woman's rigth to "privacy" and abortion.
You are still not giving the distincting due between citizens as individuals being protected from governmental tyranny, and vessels (whether privately owned or not) being hired to prosecute war.
Intentional or not.
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)].
I think he meant they were looking for ANY privateers, rather than citizens specifically.
However, the very fact that "citizens" are INCLUDED as a sub-set of "privateers", who could be from other places, means surely it was OK for our own citizens to have "big arms"/ordnance.
It is an arm. If it were .6 inch, it would be classified by BAFT as a destructive device.
Do I think the .5 vs .6 caliber is a common sense approach or supported by the constitution?
No, but it is what will be used by BAFT to toss you in jail.
"I'm not sure where the Constitution specifies "small arms". Was private ownership of cannons permitted by the founders?"
Your right there. I am looking at my Constitution right now. And it reads"...,the right of the people to keep and bear Arms, shall not be infringed"
It does not specify the size of the Arms.
Also...notice "Arms" is spelled using the Big A...not the little one...
AND...the part that is written "...., the right of the people..." Seems to specify that this Constitutional protection is for the PEOPLE......the citizens...not the state.
Robert, didn't you know already that the ONLY "choice" Dems care about is killing humans? (Both babies and sick old people.)
You would be correct. I believe it took several Frigates to conquer the Barbary Pirates.
I believe the 2A refers to "arms" as any means of defence for your personal protection and which could be used to overthrow a Tyranical government.
Am I wrong?
Agree.
Do you think the Second Amendment also applies to State and local governments?
Definitely wasn't my itention. What I was trying to distinguish is the intent of the 2A and how privateers were utilized. Quite a stretch from the original thread, but a good line of conversation anyways.
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