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.

". . . What it DID NOT mean was that the militia answered to any elected or appointed government official. . . ."

James, I must disagree pointedly with this comment.

The following is from Article 1, Section 8 of the United States Constitution

". . . The Congress shall have power to . . .

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

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;"

What the 2nd Amendment makes clear is that, in granting this power to regulate the militia to Congress, the people have not surrendered their right to keep and bear arms. The opening phrase "A well regulated militia . . ." only reaffirms what is already in the constitution itself.

When the Constitution was written there was no standing army or National Guard such as there is today. When it was necessary to repel an invasion, riot, revolt or whatever, large or small, the Militia was called out. The Militia was everyone of age that could help to provide a defense. In order to have the Militia affective it was required that each member possess a gun. The "not to be infringed clause" was to prevent some political hack, that had mischief in mind, getting a law passed that prevented citizens from owning guns, thus pulling the teeth of the Amendment. It's just as applicable today as it was then. If the gun hating crowd wants to do away with the 2nd Amendment why don't they attempt to repeal it?

"Letters of Marque and Reprisal" are papers of authorization given by the government, which implies regulation, since the legitimacy of action derives from government sanction.

Merchant owners already armed their vessels to defend against pirates.

". . . Letter's of M&R were authorization for privateers, already armed, to act on behalf of the government in a legal capacity. No more. No less. They were also loot sharing agreements as well. Government got its armed ships, Captains gave govt a cut of anything they captured."

Of course that's what they are and I didn't say anything to contradict that. The point is that those "letters" are issued by the federal government acting under constitutional authority (See Article 1, Section 8) which makes "Letters of Marque" an activity that is regulated.

A Constitution that embraced precise concepts of the 18th century could not necessarily be applicable to a society dependent on cell phones and Blackberrys.

I see this line of thinking quite a bit, and it never fails to exasperate me. The Constitution did NOT "embrace precise concepts of the 18th century." It's not as if the document contains specific requirements for wagon construction or detailed regulations for sailing ship operations.

The Constitution outlines very general, universal principles and guidelines. Power should be separated among several branches. The people should have representation in government. Power should be limited and delegated. Citizens in a Union should be treated equally no matter what part of the Union they happen to be in. The Federal level of government should be supreme in its sphere of delegated authority, and the states (or people) in all others.

The Constitution consists of basic guidelines for the structure and power of government, based on observation of history and human nature. These are not concepts that only apply to the 18th century or that become less valid with trivial developments in technology or culture. I have a hard time believing the Framers, living in the midst of the Enlightenment, couldn't foresee and didn't plan for human progress.

"I never said the constitution prohibited the militia from serving the government. At its core, however, the militia remains a civilian organization, not a military one. That is the important distinction."

I got that James. And I don't think you and I are as far apart as some might believe, because you may have read that I am among the first in this thread to make clear that the "militia" are the "law-abiding citizenry."

I can see you're passionate about this issue and I do not object to "passion in defense of liberty" one bit. Keep on goin'!

This isn't a rant against you personally, just something I feel about guns and the Constitution.

An Amendment to the Constitution stands as strong as the original articles of the Constitution and the Supreme Court has NOTHING to say about an amendment whatsoever. Leaving an interpretation of any part of the Constitution, other than a very basic literal interpretation is dangerous and is not warranted. Bringing 'intent' and interpretation/modernization/evolution of circumstances is pure BS.

I personally believe the US Constitution is the product of persons with inspiration from a 'higher power' and it does not need determination of intent, divining of "what they would think given the evolution of science/history since then", et. al.

The 2nd amendment guarantees this right to firearms and you can't perfume the liberal lefts' feces-laden attempts enough to where it can pass the basic "smell test"

They were permission slips to be pirates. Without which, their actions would have been criminal. If you want to call that "regulation", then whatever flips your trigger.

Inactive militia do not lose their Right to Arms just because they are not serving in an official capacity. The 20k+ laws on the books are by and large entirely unConstitutional and need to go away.

Laws governing the drill, arms, uniform of the day, ect... are all parts of the Militia Act of 1792 and also quite clear that they only pertain to people acting AS an active duty militia.

Yeah... piracy is generally frowned on. Not so much "regulated" as "unlawful" or "banned".

Of course, with todays asset forfeiture laws, it's kinda hard to remember who the bad guys are.

Also, those Letters were given to Captains and companies whose ships were already armed as the new FedGov couldn't field enough armed ships to fight. Using those cannons in self defense on the high seas wasn't a "regulated" event, nor was simple possession of said cannons. Only being able to attack openly your Nations enemies ships was "regulated" as you put it.

Just a point of no particular significance here, but which I offer to show some personal understanding of this, my Great-Great-Great Grandfather Perre Daspit de St. Amand, served with Jean Lafitte, who was granted Letters of Marque and Reprisal. And we're quite proud of him in my family.

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