Skip to comments.Framers' intent still hotly debated
Posted on 06/05/2006 12:35:33 PM PDT by neverdem
Guns are the center of the Second Amendment to the U.S. Constitution.
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)?
U.S. Constitution: Second Amendment
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.
Today: the Second Amendment.
Editorial Writer Sam Negri contributed to this commentary. Contact Editorial Page Editor Ann Brown at 574-4235 or firstname.lastname@example.org.
Which was why they carefully spelled out the procedures by which it would be modified.
Hooray for the dead Constitution!
It's simple: the 2nd amendment details two thoughts. The one we are most familiar with is the right to keep and bear arms part. Which is absolutely accurate. The other part pertains to a state militia. Here's one that will really make the libs scream: 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. The defining characteristic of the militia is that it does not answer to any elected or appointed government official.
Shall not be infringed is pretty clear. And this guy went to law school? Sheesh!
I hope you read the whole article. That concluding remarks don't strike me as liberal.
It is clear to anyone who understands English syntax. Period. Let's put the Second Amendment FIRST!!!
Not among constitutional scholars, even the most anti-gun of whom concede that the founders meant exactly what they said with the words "shall not be infringed."
It's only unclear to people who wish to disregard it.
I was referring to the author's implication of what the constitution is. The libs usually say that it's a 'living document'. I suspect the author may have been trying to say a similar thing, without actually saying it.
"Murky language," indeed.
Oh, it did NOT
The indictment alleged that on 18 April 1938, Jack Miller and Frank Layton transported a double-barreled 12 gauge shotgun with barrels shorter than 18" between Claremont, Oklahoma and Siloam Springs, Arkansas. Said shotgun had not been registered pursuant to Section 1132c of Title 26 United States Code (National Firearms Act, 48 Stat. 1237). Neither Miller nor Layton had, "in their possession astamped-affixed written order for said firearm as provided by Section 1132c
Stop right there! It is neither ambiguous nor does it require deep interpretations. The Right of the People to Keep and Bear Arms. Only libs could make that ambiguous. 'Course, they're not sure of the meaning of 'is'.
If the framers truly believed the Constitution was supposed to be "flexible," why did they go through all the trouble of ratifying it in the first place? They could've just said, "oh, we'll figure out the detais later, as we decide what's relevant!"
I agree that there may be limits to certain rights, but while the Framers' never anticipated Blackberrys and cell phones, they never anticipated the level of government intrusion in our lives, either. If they had, they might've doubled the number of states' rights!
No, here, the author is correct. He makes an error however with this line:
One of the strengths of the Constitution is its inherent flexibility
The constitution is a set of inflexible laws which may be amended through a formal and difficult process.
True to the extent that they PROTECT the good people from being the victims of bad people.
Sure, that's why the Constitution can be amended!
Citizens need guns for self protection and to keep their government afraid of them.
Would you trust a government led by Gore, Kerry, Teddy, Boxer, McKinney, Conyers, Murtha, Waters, Schumer, etc?
Actually, the framer's intent is only unclear to folks who WANT it unclear. For everbody else, there are the Federalist Papers, which make the intent very clear indeed.
Today's government bears ZERO resemblance to what the Founders set up and argued about.
This person shows a complete ignorance of what thie BOR is. People are not bound by the bill of rights, Government is restricted by it.
This bozo has the nerve to call himself a law professor? Students at UT Law, you deserve a refund. The Constitution has stood for over two hundred years. How many other Western democracies can say that they have been under the same governing document for that time? And contrary to Levinson's statement it is actually a marvel of clarity, when one discounts emanations from the penumbras!
In the twentieth century, estimates are that 34 million people were killed in wars.
The same study estimates that 196 million people were killed by their own governments.
To all the liberal lurkers: you may say you hate war, but defending yourself in war is better than being quietly killed because of your politics.
You got that right! If the stakes were not so high it would be hilarious.
It is the right of the PEOPLE WHO BEAR ARMS because it is THEY who make up the militia.The founding fathers never had a national guard in the official sense and they never intended the constitution to be changed.The possibility of change is a liberal lie because they believe the constitution to be a "living document",therefore using this fallacy to create gun control.
The framers intended (and the USSC has ruled in Miller) that the 2A applies to arms commonly in use by the military. The true test is whether or not the weapon is "discriminatory". A rifle would be OK, things like land mines and bombs not.
The Amendment is clear. What is fraught with ambiguity are the morons (liberals) who cannot read.
Murky? 'Shall NOT be infringed' is clear and unambiguous language. Only those against the 2nd Amendment would try to redefine it.
Love your tag line!
If your local ordnance says "no open carry of handguns", that is plainly an "infringment". If your States requires you to prove your innocence and pay extra taxes and fines to exercise said Right, that is ALSO an "infringement" as well as a violation of self incrimination.
The current legal fiction does not adhere to this. Nor will you find many justices willing to uphold their Oath under the Constitution and rule this way. The government has entirely too much to lose should things return to the way they should be.
Learn history. "Back in the day", private individuals and institutions were allowed to do EXACTLY that. What do you think those PRIVATE sailing ships were armed with?? Spit-ball shooters???
How 'bout an RPG or ATGM? I think its disciminating (I want to take out THAT tank THERE!) - if I just happen to get the troops around it, that's a bonus...
All things considered, I figure the Second Amendment applies to any weapon an infantryman might carry.
The Second is clear that the federal government can't interfere with either the peoples' or the states' RKBA.
Is there a conceivable reason that it can't mean both?
The passengers of United Flight 93 were a militia.
IIRC, regulated in that time frame was thought to mean that all the able bodied men had an individual long gun, a basic load of ammo, and could shoot with acceptable accuracy.
But with those two points in mind, the only real debate we should be having is over what constitutes the proper mode of regulation -- 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 -- and how that regulation can best be implemented.
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).
The militia was expected to show up with current military hardware. How were merchantmen expected to arm their vessels with cannons after being granted Letters of Marque and Reprisal?
Found the specific section that differentiates between the military and non military folks: