Posted on 12/07/2007 5:57:37 PM PST by neverdem
DAVID T. HARDY From the legal community
PROFESSOR Erwin Chemerisnky's column ("No need to choose meaning of Second Amendment" in the Times Nov. 27), does little justice to the Second Amendment.
He begins by stating that "The language of the Second Amendment is a puzzle," citing its reference both to a "right of the people" to arms, and its reference to the necessity of a well-regulated militia.
The dual nature of the amendment is no mystery. The first Congress sought to reassure two bodies of concerned Americans, one of which (e.g., George Mason) feared that Congress would neglect the militia system, the other of which (e.g., Sam Adams) feared it might disarm the people.
The wording becomes utterly clear once we realize that, at the time, "militia" meant the entire male citizenry, bearing their own arms, and "well-regulated" meant "orderly" (Samuel Johnson's dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). "Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms" makes perfect sense.
We have other, clear evidence as to what the first Congress meant. Even as it debated, Tench Coxe released a widely-reprinted newspaper article describing the amendment as protecting the people's right "to keep and bear their private arms."
Coxe was a friend of James Madison, and Madison wrote back to inform him that the article was in the newspapers in New York, where the first Congress was meeting. There is more: The first Senate voted down a proposal to make it a right to keep and bear arms "for the common defense."
Chemerisnky contends that the Second Amendment was meant only to "keep Congress from interfering with state militias." If so, was Dwight Eisenhower liable to impeachment when he called National Guard units into federal service, to prevent them from being used to stop desegregation? Can any state's militia decide to "go nuclear" at will?
Next, he argues that the Supreme Court in 1939 "rejected the individual rights view of the Second Amendment ... " Quite the contrary. In that case (U.S. v. Miller) the government's primary argument was that the amendment protected only state militias. The Supreme Court did not accept that. Instead it treated the right as individual (the words "National Guard" are nowhere in the ruling; the high court spoke of "militia" in the colonial sense of "every person capable of serving") but limited to firearms suitable for militia or military use.
It cited 19th century state cases that excluded bowie knives and brass knuckles from right to arms provisions.
Finally he contends that, if recognized, the right to arms "is surely not an absolute liberty." Neither is freedom of speech (try threatening the president, or lying to an officer, and see how absolute it is). He argues that guns are simply property and can thus be freely regulated. So are printing presses, we might observe. The framers did not single out arms and presses for special protection because of their economic value.
In law school, we were told to be careful what we ask for, because the fates may give us just that. If the Supreme Court upholds a broad Second Amendment right, tens of millions of gun-owning Americans will be reminded of the high court's role as protector of their Constitution.
If it goes the other way, those millions will be asking how arms ownership, expressly mentioned in that document, is unprotected while abortion (no where mentioned) is broadly protected.
They will come to believe that the Constitution is merely a paper covering for arbitrary judicial rule. This is not a lesson we want taught in a democracy.
Hardy is an attorney and director of the documentary "In Search of the Second Amendment" and is a resident of Tucson, Ariz. He has published 10 law review articles on the right to arms.
Thanks for the quote. I wanted to find the link. I'm sick of the grabbers in NY. I had no say in where I was born.
The wording becomes utterly clear once we realize that, at the time, “militia” meant the entire male citizenry, bearing their own arms, and “well-regulated” meant “orderly” (Samuel Johnson’s dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). “Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms” makes perfect sense.
Actually, and I’m not certain about this, but the term “well regulated” was more on the lines of meaning “good marksmen or proficient in the use of arms.”
So, let’s look at the wording again....
“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.”
“A well regulated Militia” - Meaning the men (the militia being all citizens able to bear arms) in the community being well trained in the use of firearms.
“being necessary to the security of a free state” - Here I think “free state” is better understood as a free goverment or a government that respects freedom. So, “security” could be understood to mean keeping the government in check so as to maintain a “free” one (else why use the word “free”). The right of the people to keep and bear arms shall not be infringed.
My take then - “Armed citizens well trained in the use of weapons being necessary to ensure the security of free government (not tyranny), the right of the people (individuals) to keep and bear weapons shall not be infringed.”
There are plenty of writings extant from then that would indicate that many founders feared government tyranny. A society of armed/trained marksmen would be a preventative to government tyranny. Therefore, the right of the people not only to keep, but to bear arms was guaranteed.
I think the idea of service in an “organized” militia serving the state was not the main thrust of the ammendment. Keeping the citizenry armed was. IMO.
excellent article
Agree. Only a lefty would want a WAR treated as a criminal prosecution. Oh wait that is exactly what the Democrats think and want and what got us 9/11. Wonder when War because criminal prosectution in our domestic courts. See if only War can become a criminal prosecution then we can pass a law against it and there will be war no more and peace in our time. Yeah Right.
Then we'd have called them Loyalists and sent them packing off to Canada with the rest of them and the list of names we'd call Founders would be somewhat different.
The current interpretation of “regulated” as government control versus the intent at the time to maintain functionality (regulate)
is a point I never read or hear.
There's a solution to "Mall shooters" in there somewhere.
Chemirinsky in charge of a law school is like Jeffrey Dahmer in charge of a cooking school.
How appropriate. Shooting the messenger on a gun thread.
Close.
If they were considered Citizens of the state in which they lived, then they would have the same rights as other Citizens of that state, including the right to keep and bear arms, free speech, etc. The individual right to keep and bear arm is protected by state constitutions.
The bottom line in Dred Scott was that the states did not have the power to declare "persons of the Negro race" citizens -- that was a power reserved to the federal government. Meaning the newly freed slaves had no rights at all (and were treated that way).
The solution was the 14th amendment, which declared them "citizens of the United States" and protected some basic privileges and immunities.
This amendment is meant for the people.
My copy of the amendment reads that "a well regulated Militia" was necessary to the security of a free state, not "an armed citizenry who were good marksmen".
Before the second amendment came into existence, Article I, Section 8 of the U.S. Constitution gave Congress the power to arm the Militia. The question arose, "What if Congress refuses?" Good question.
The Founders agreed that the power to arm the Militias was concurrent with the states, so the states themselves could arm the Militias. The second amendment was then written to ensure that Congress did not interfere with that process.
A right for whose military?
It makes perfect sense that when a number of independent states are setting up a federal government -- and giving that government the power to arm their state Militias -- that the states would want to make sure that, in the event the federal government refused to arm their Militias, the federal government would not interfere with the states arming their own state Militias.
It also makes sense that if the states want their militia members to supply their own arms, they would want to make sure that the federal govenment would not interefere with their ability to obtain, maintain, or manufacture them, or have them on hand when needed.
I agree.
Good article.
Does anyone know when the “collective right” interpretation was first offered?
Interpretation by what entity?
By any scholarly article, opinion piece, legal argument, or court decision (or anything else.)
http://www.urbin.net/EWW/polyticks/RKBA/2ndengl.html
The following is reprinted from the September 13, 1991 issue of GUN WEEK:
THE UNABRIDGED SECOND AMENDMENT
by J. Neil Schulman
[excerpt]
[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.”
[Schulman: As a “scientific control” on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,
“A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”
My questions for the usage analysis of this sentence would be,
1. Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment’s sentence?; and
2. Could this sentence be interpreted to restrict “the right of the people to keep and read Books” only to “a well-educated electorate” — for example, registered voters with a high-school diploma?]
[Copperud:]
1. Your “scientific control” sentence precisely parallels the amendment in grammatical structure.
2. There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
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