Framers' intent still hotly debated

While the topic is clear, the amendment is fraught with ambiguity and has been subject to conflicting interpretations and often acrimonious debate.

The sharp conflicts are everyday discussion topics, as gun-control advocates claim that firearms have a pivotal role in societal violence, and firearm enthusiasts clamor that restricting guns tramps on the intent and spirit of the Second Amendment.

One of the strengths of the Constitution is its inherent flexibility. The framers understood that the document would be modified over time if it was to remain relevant. A Constitution that embraced precise concepts of the 18th century could not necessarily be applicable to a society dependent on cell phones and Blackberrys. This does not make life easy for citizens or jurists, and brings to mind Winston Churchill's famous observation that democracy is a terrible system of government, but all the others are worse.

The murky language of the Second Amendment has created a battle line between both sides of the packing-heat or pack-them-away debate.

"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.

The amendment is one sentence comprising two clauses, which are the main cause of conflict.

The opening clause states: "A well regulated militia, being necessary to the security of a free State." No other amendment has a similar clause, which seems to ascribe its purpose, according to Levinson.

Gun control groups consider the clause precise and view the amendment as a collective right of the states to form militias.

The rest of the amendment's sentence, "the right of the people to keep and bear arms, shall not be infringed," loads the interpretation of pro-gun groups' belief that the Second Amendment grants citizens an absolute right to own firearms.

The word "militia" is a stumbling point. Written in a time when the tyranny of King George III was still a raw memory, it could be viewed as a right to arm military forces. However, in the 18th century, most adult males were part of a militia, so perhaps the framers used the word to imply everyman.

The Supreme Court has not fully interpreted the Second Amendment, but courts have agreed that it allows reasonable firearm restrictions.

The furious debate around the Second Amendment has prompted groups like U.S. Constitution Online (www. usconstitution.net) to propose replacing the Second Amendment with "a truer representation of how our society views our freedom to bear arms," by removing "militia" and focusing the amendment to ensure the "right of the people to keep arms reasonable for hunting, sport, collecting and personal defense."

As our nation grapples with the issue, we posed questions surrounding the Second Amendment to two recognized Tucson attorneys for whom the Second Amendment is integral to their practice:

Elliot A. Glicksman, who frequently pursues civil remedies for victims of crimes and represents crime victims, told us that "in a perfect world, guns would be treated like cars; people who own guns would have to take a proficiency test."

David T. Hardy, a federal firearms law authority, has written law review articles and a book, "Origins and Development of the Second Amendment: A Sourcebook," and co-authored "Michael Moore Is A Big Fat Stupid White Man" and "This Is Not an Assault" about the siege on the Branch Davidian compound outside Waco, Texas.

Star: Does the Second Amendment protect the individual's unlimited right to own a gun or other weapons? Or is it a collective right of the states and government to maintain militias?

Hardy: Modern scholarship accepts that the Second Amendment was meant to protect an individual right. Perhaps the best historical evidence is a 1789 newspaper explanation of the Bill of Rights, a comprehensive contemporary explanation, that refers to protecting citizens' "private arms." James Madison, drafter of the Bill of Rights, wrote a thank you letter to the author. Further, when the first Senate considered the Bill of Rights, there was a motion to make it a right to bear arms "for the common defense." The Senate voted down the idea.

Madison was trying to allay the fears of two groups. One feared that Congress would neglect the militia; the other feared that Congress might try to disarm individuals. Madison had to resolve both fears. This is why the amendment has two clauses.

Glicksman: The only U.S. Supreme Court case I'm aware of is "U.S. v. Miller," which held that it was a collective, not an individual, right.

Star: According to the Brady Center to Prevent Gun Violence, in U.S. v. Miller (1939), "the High Court wrote that the 'obvious purpose' of the Second Amendment was 'to assure the continuation and render possible the effectiveness' of the state militia. The Court added that the Amendment 'must be interpreted and applied with that end in view.' "

Since Miller, the Supreme Court has addressed the Second Amendment in two cases: In Burton v. Sills, (1969), the Court upheld New Jersey's strict gun-control law, finding the appeal failed to present a "substantial federal question." And in Lewis v. United States (1980), the Court upheld the federal law banning felons from possessing guns, finding no "constitutionally protected liberties" infringed by the federal law, according to the Brady Center."

Star: Bazookas and missiles are "arms." Does the Second Amendment protect an individual's right to own them? Glicksman: Good question. Let's go one further. How about nuclear weapons? Why should I, a legitimate nuclear weapons collector, be punished because terrorists misuse them. Punish the evildoer. Remember, nuclear weapons don't kill people. Terrorists misusing nuclear weapons kill people.

Hardy: All rights have rational limits. We can recognize "freedom of speech" without having to protect blackmail and threatening phone calls.

There are various theories as to how to establish limits. Akhil Amar, a professor at Yale Law School, suggested that, since the original purpose was to allow the people to deter tyranny, a weapon that allows one person to become a tyrant through terror would not be protected.

I like to compare it to regulation of the press, which was known to the Bill of Rights framers, versus regulation of electronic broadcasting, which they could not foresee, would require licensing of frequencies to work. The framers could foresee rifles and pistols but not special problems posed by antiaircraft missiles or nuclear bombs.

Star: Is the regulation of gun ownership, such as licensing and registration, a violation of the Second Amendment? Why or why not?

Hardy: It depends upon the regulation. What the framers clearly meant to take off the table is confiscation or prohibition. I see registration and licensing as facilitating that. It's hard to see how registration itself prevents crime. Even if a criminal did register his gun, he is unlikely to leave it with the victim. Glicksman: The First Amendment is not absolute. Some speech — yelling fire in a crowded theater — is not protected.

Should the Second Amendment be absolute? It can't be. Or else we couldn't prohibit felons from possessing weapons and I could take a gun with me on a plane.

Star: With the right to own a firearm, is a there an implicit responsibility to safely handle the firearm? Hardy: Everyone who has a gun and was not trained how to safely use it should obtain such training now. Every firearm accident that I have ever seen involved violation of not one, but several, simple safety rules. Gun safety is far simpler than automobile safety, but both require knowledge.

Star: A woman who carries a gun in her purse is required to have a concealed weapon permit. A person wearing a sidearm may be asked not to enter a place of business because of the sidearm. Are those restrictions on Second Amendment rights?

Hardy: The permit requirement is a restriction — courts have upheld those because it's a very moderate restriction; it doesn't restrict keeping, and only one form of bearing. A private business on the other hand isn't bound by the Bill of Rights.

Glicksman: Limiting people from having weapons in certain places like a bar or on a plane have always been upheld.

The Tucson City Council banned guns from city parks a number of years ago. The ordinance was challenged ("City of Tucson v. Rineer," 1998), but it was not challenged on Second Amendment grounds. Instead, it was challenged on the claim that the city couldn't regulate guns and on the amendment in the Arizona Constitution, not the U.S. Constitution. The City of Tucson won. The court held that it could ban guns from parks. Subsequently, the state Legislature enacted a statute that said only the state, and not individual cities, could regulate guns. If the Second Amendment grants an individual unfettered right to bear arms, why wasn't this ordinance challenged on Second Amendment grounds?

Star: Is there anything else you feel that our readers should know about the Second Amendment?

Hardy: One fascinating aspect of the American right to arms is not the Second but the 14th Amendment (1868). The original Bill of Rights only restricted the federal government (some states, for example, had established churches into the 1830s).

After the Civil War, Congress proposed, and the people ratified, the 14th Amendment, which forbade States to infringe the "privileges and immunities" of U.S. citizenship.

The congressional debates make it clear that a motivating factor was that the former Confederate states had passed the "Black Codes," which forbade blacks to own guns, and were disarming black Union veterans to make them vulnerable to Ku Klux Klan terror.

Yale professor Amar said that the Second Amendment vision was that "when guns are outlawed, only the government will have guns," and the 14th Amendment vision was "when guns are outlawed, only the Klan will have guns."

He sees the Second Amendment as protecting an individual but political right to resist governmental tyranny and the 14th Amendment as making this the "quintessential individual right," the right to defend one's home against criminal attack.

It's sometimes argued that we have a changing constitution. I find this difficult to accept: Why else would amending it require a super majority (two-thirds of Congress and three-fourth of the states)?

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.

Editor's note: The United States Constitution lays down the structure of the government and separates the powers among three distinct branches— the Legislative, Executive and Judicial. The landmark document was signed Sept. 17, 1787. Subsequently, the Bill of Rights, the first 10 amendments to the Constitution, went into effect Dec. 15, 1791.

The Constitution imposes a series of checks and balances among the branches of government. The Bill of Rights guarantees that government cannot take away rights from its citizens and protects citizens from excessive government power.

On May 21, we presented a discussion on the First Amendment. Based on positive reader reaction to that story and suggestions that we continue civics discussions, we'll be exploring the entire Bill of Rights in the next few weeks. Read the May 21 article at www.azstarnet.com/opinion.

Editorial Writer Sam Negri contributed to this commentary. Contact Editorial Page Editor Ann Brown at 574-4235 or annbrown@azstarnet.com.

They found that they had no evidence before them that a sawed off shotgun was a suitable weapon for a militia because Miller was dead and his lawyer didn't bother to argue before the Court.

The first is almost correct, the second is not. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. The case was argued March 30, 1939. - Decided May 15, 1939. Of course Miller could not be located, and the lawyer wasn't about to go to the expense of a Supreme Court appearance, or even just a brief, with no paying client.

However Miller's codefendant Layton was found, at least after the Supreme Court handed down it's decision. He plead guilty and was given probation by the same judge who had originally thrown the case out on the grounds that the law violated the Second Amendment.

The government however thought the case important enough that the Solicitor General himself was on the brief, although he did not present the case.

The Court did not find that *they* had no such evidence, but rather that the original court in Arkansas did not, and thus should not have ruled that the keeping and bearing of such a weapon was protected by the second amendment.

The framers understood that the document would be modified over time if it was to remain relevant

Indeed they did. That's why they provided for amendments to be made, and prescribed a process by which they could be proposed and ratified, actually more than one process.

I don't recall any amendments that would have the effect of removing the words "..the right of the people to keep and bear arms shall not be infringed". If the gun grabbers want our guns, and which to do ban them legally, then they are free to propose and pass such an amendment. I'd wish them luck, but I'd rather wish they would cease and desist trying to infringe upon my rights.

the National Guard does not qualify as a state militia. The National Guard is under the command of government officials. In the legal tradition of the Framers, this makes it a standing army.

Militias were under government control, but it was usually local control, not by the states or the federal government. However that changed with the passing of the Constitution, which provides that Congress, and thus the federal government, has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

It also provides that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"

Thus governments do control the militia, as a militia, when called up. BUT, the second amendment doesn't protect any right of the states, but as it says "the right of the people".

The so called justification phrase "A well regulated Militia being necessary to the security of a free state" does not allow for restriction of the right protected by the main clause. Such explanations are common in state Constitutions, especially the early ones.

The one thing that is clear in the intent of the framers is that they felt that law-abiding citizens could arm themselves. They also didn't feel that gun ownership should be completely unregulated, as made evident in their opening words "A well-regulated militia being necessary to the security of a free state . . ."

1) The wording of the 2nd amendment suggests that the militia should be well-regulated. It says nothing about the right to bear arms being well-regulated. In fact, it specifically states that the right to bear arms shall not be infringed. Period.

2) This amendment was written during a time when the term "arms" included all arms available to armies at war. For example, muskets were the pinnacle of firearms technology, and were used by both soldiers and hunters, whereas now we have distinctions between different types of firearms (assault rifles, shotguns, automatic weapons, etc.) It is my firm belief that the Framers' intention was that these "militias" should have access to the same weaponry as any soldiers might have, especially considering that the militias were expected to act as soldiers in time of need. Furthermore, given the level of paranoia that the Framers exhibited regarding oppressive governments, I have no doubt that much, if not most, of the intention of the 2nd amendment was to guarantee citizens a final recourse against their own government, should it become unwieldly (as ours has).

They also didn't feel that gun ownership should be completely unregulated, as made evident in their opening words "A well-regulated militia being necessary to the security of a free state . . ." (I'm going from memory here).

You shouldn't rely on your memory and should do more historical research. Your premise is incorrect. In 18th century usage, the term "well-regulated" had nothing to do with government "regulations". It meant "properly constituted, maintained and functioning".

For example, a clock mechanism was said to be "well-regulated" if it was properly adjusted and kept correct time. Similarly, a militia was "well-regulated" if it was properly equipped and trained and able to perform its function, to protect the citizens and their property and communities.

But with those two points in mind, the only real debate we should be having is over what constitutes the proper mode of regulation --

Again, your assertion is based on a false premise.

and we all believe in regulation whether we recognize it or not because none of us (God I hope) would permit ordinary citizens to pack 80 mm howitzers

Another strawman argument. There is no real threat to the security of this country and the safety of its citizens from people wanting to "pack 80mm howitzers". They're not "packable", anyway, you have to hitch or mount them to a vehicle.

There IS, however, a very real threat to the security of this country and the freedom of its citizens from misguided or malevolent people and officials who worship at the altar of government regulations and authority.

Glicksman: The only U.S. Supreme Court case I'm aware of is "U.S. v. Miller," which held that it was a collective, not an individual, right. Oh, it did NOT

Correct. If it had, they would only needed to have noted that Miller was not a member of any militia, and "case closed". Instead they strained at gnats to define "arms". But in so doing, they implied that ownership of machine guns, grenades, Claymore mines, and even heavy weapons, was protected as their "possession or use ... at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia". In fact it's really too bad Miller didn't have a Thompson, as taking judicial notice that those had a military purpose would have been completely justified, and the Court would have been laughed off the Bench if they had ruled that the original judge should not have taken such notice.

The Brief filed by the United States argued the Collective Rights theory, but even this Court who strained to find a way to uphold the National Firearm Act, did not mention it in the decision. The Court waxed eloquent over the meaning of militia though.

Below is the summary of the argument contained in the Government's brief.

summary of argument The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.

"Please provide proof. I'm not aware of any such regulations, . . ."

The Militia Acts of 1792 and 1795 provided for extensive federal regulation of the state militias. The primary purpose of these two acts was to establish uniformity between the various militias so that their effectiveness could be gauged in the event they were needed. It is clearly extensive "regulation" of the militia by the federal government.

But most regulation was done at the state level. [This goes to my contention that the militias were "under state control."] I quote from an historical overview of the topic contained within a larger discussion of the 2nd Amendment:

". . . The third area was the ability to arm the militia. This caused a great deal of debate during the battles for ratification of the Constitution. Some people argued that this meant only that Congress had the ability to specify what type of weapons were required. Others argued that this gave Congress the ability or the responsibility to procure arms for the militia ... The Second Amendment guaranteed that even if Congress had the power to arm the militia, nothing would prohibit the states from procuring their own arms.

... Under state law, every last detail regarding the militia was regulated, from the number of and times for musters, court martial procedures, how to notify people that there would be a muster, fines, how to appeal fines, uniforms (if applicable), compensation (if applicable, which it usually wasn't), and so on and so forth. An average militia law might be 80 pages long; some were far longer than this. . . ."

That does not mean that your plantation owner did not own the cannon he provided to a militia. I have never said anything that would contradict that. My point is that militias were not a free-formed autonomous organization that existed legally outside of regulation by the federal and state governments and especially outside of the regulation of the states. So if you're "not aware of any such regulations" you have missed quite a bit, given the body of law mentioned above.

". . . Unfortunately for your position, between the Revolutionary War and up until the civil war, if you could afford to buy it, you could own it."

My argument was that using evidence of the private arming of ships as supporting a right to unrestricted access to arms goes too far. It does. Many of those militia acts regulate the acquisition of artillery and more. And no, I'm not going to go through those various acts. If you can find evidence that the state militia acts did not regulate the acquisition of artillery by private individuals, put it up. But you're not going to find it.

". . . it meant "well-trained". See "regulated" as in "regulation of a clock's movement". . . ."

No; Article 1, Section 8 of the U.S. Constitution establishes that Congress can regulate the militias as quoted here:

". . . To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; . . ."

This right of regulation was already ratified when the 2nd Amendment was passed. So the words "well-regulated militia" merely states what already was a matter of constitutional law.

And WW, I do not want to ban guns, nor do I want to do anything but keep true military hardware out of the hands of individuals, which is already a matter of law under the National Firearms Act -- the Miller decision clarified this law. If you've read my posts you will see that. I don't think it's fair to lump me together with people who do.

~~Sure, that's why the Constitution can be amended!~~

Actually there is a mechanism built into the structure of the Constitution that creates a giant Presidential loophole making an effective end run around the amendment process.

The TREATY MAKING POWERS of the Executive branch trump nearly everything. The Framers knew that it was going to be important for any future President to make agreements, binding agreements with foreign governments. The check & balance to this power is the requirement that any treaty be ratified by the Senate (only the Senate -- not the House, too) in order to become the Law of the Land. It's a power that cuts across the entire constitution and it's legal because it is a part of the original ratified document.

So here is the nightmare scenario: Hillary becomes the US President in 2008. Her husband Bill becomes UN Secretary General at the same time. They agree on an international treaty that bans worldwide possession of all small arms of any caliber or type of action, for the goal of ~snicker snicker~ "Global Peace" and the recently installed DEMOCRAT SENATE ratifies it...guess what boys and girls? It's LAW and it's LEGAL. Now from a sociological point of view, whether it would spark another American Revolution or if all we'd get is a sample of New Orleans but on a much larger scale I can't say. But I suspect the sheep will bleat and whine and turn their guns into the government....

My own personal take is that no citizen who can prove that he or she is a law-abiding citizen should be prevented from purchasing or owning a reasonable firearm (I would stop short of true military weaponry). No waiting period, no delays, no other preconditions beyond proving they are a law-abiding citizen should apply.

Define reasonable, I suspect the Brady Bunch will not agree with your definition. Define "military weapons". The Miller court said, or at least strongly implied, that keeping and bearing militarily useful weapons is what the second amendment protects.

As to having to prove that one is law abiding, I would argue that the burden should be on the Government to prove that one is not.

Besides such "checks" do not deter criminals, who by definition don't obey the law, from acquiring weapons, they only provide at least the potential for collecting data on law abiding gun owners.

Shall not be infringed means just that. All of your "reasonable" restrictions are infringements. Only through individual due process may rights be legitimately denied. They may not be denied "wholesale" to the body of the people.

"... the amendment is fraught with ambiguity..."

Sez who? I really wish they would quit the charade on this one.

"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."

Now, "well-regulated" in those days meant something a little bit different than what people might suppose to day. A watch was "well-regulated" if it kept good time. EVERYONE was expected to maintain their arms at home, so as to avoid the silliness in having everyone go to a central armory to be armed and THEN travel to where the trouble was. Certainly, it doesn't mean 64,000 conflicting laws that make everyone a de facto criminal. Second, "the people" IN EVERY OTHER AMENDMENT has been construed to be everybody la-di-da-di. Therefore, they are not talking about the National Guard or the Army, Marines, Air Force, etc.

Any other conclusion is sophistry.

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