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Making a Hash of the Second Amendment
National Review Online ^ | April 25, 2012 | Robert VerBruggen

Posted on 04/25/2012 1:19:08 PM PDT by neverdem

Harvard historian Jill Lepore has a piece attacking gun rights in the latest New Yorker, and a follow-up post on the magazine’s website. Most of it is basically what you’d expect: some numbers about gun violence, some horrifying anecdotes about people who’ve misused guns, some reporting from a gun range, some artsy writing (“a gun is a machine made to fire a missile that can bore through flesh”), and an overarching history of the gun-rights movement.

More irksome, however, is Lepore’s analysis of the Second Amendment’s meaning. By leaving out or misrepresenting key historical details, she shortchanges the idea that the Second Amendment protects an individual right.

There are three theories that have played a significant role in the debate on the Second Amendment. One holds that the Second Amendment protects an individual right to keep and bear arms. Another might be called the “limited individual right” or “civic right” theory, which holds that even though individuals have the right to bear arms, the right applies only in the context of militia service. (Some advocates of this theory compare the right to bear arms with the right to serve on a jury.) The third, the “collective right” theory, posits that “the right of the people to keep and bear arms” refers to the right of state governments to form militias.

This last idea is patently ridiculous, suggesting as it does that the Founders used the word “people” when they meant “states.” And yet this was the theory that swept through the appeals courts in the decades leading up to the 2008 Heller decision, in which the Supreme Court endorsed the individual-right theory. The source of the confusion seems to be the 1939 Supreme Court case United States v. Miller — and Lepore doesn’t help to clarify matters.

In Miller, the court ruled that because a sawed-off shotgun serves no militia purpose, the right to keep and bear one is not covered by the Second Amendment. It did not rule that the Second Amendment applies only to militia members. In fact, it noted that the “militia” mentioned in the Second Amendment comprised all able-bodied males, not only those called into military service. But Miller has often been cited as an endorsement of the collective-right view.

Lepore completely botches this history. She quotes the prosecutor’s brief from Miller, which argued that the Second Amendment was “restricted to the keeping and bearing of arms by the people collectively for their common defense and security,” and that the right “is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” She claims that the Court “agreed, unanimously.” And in her follow-up post, she implies that it was the individual-right interpretation, not the collective-right interpretation, that was invented out of whole cloth in the 20th century:

The assertion that the Second Amendment protects a person’s right to own and carry a gun for self-defense, rather than the people’s right to form militias for the common defense, first became a feature of American political and legal discourse in the wake of the Gun Control Act of 1968, and only gained prominence in the nineteen-seventies.

In fact, the notion of a constitutionally protected individual right to keep and bear arms has been “a feature of American political and legal discourse” since the Founding. I suggest readers look through these sources rounded up by constitutional scholar Eugene Volokh, but here are some of the most striking examples.

Some state-level precursors to the Second Amendment clearly protected an individual right. The constitutions of Pennsylvania and Vermont, for example, protected the people’s right to bear arms “for the defence of themselves and the state.” In several drafts of the Virginia constitution, Thomas Jefferson included a provision that “no freeman shall be debarred the use of arms.”

When states held their constitutional conventions, New Hampshire suggested an amendment stating that “Congress shall never disarm any citizen, unless such are or have been in actual rebellion.” In the Massachusetts convention, Samuel Adams unsuccessfully suggested an amendment that Congress shall not “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” In Pennsylvania, an unsuccessful proposal from Robert Whitehill held that “the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”

In defending the proposed Constitution, the popular Federalist commentator Tench Coxe claimed that a Second Amendment wasn’t even necessary: “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.” In 1789 he wrote of the Second Amendment itself: “The people are confirmed by the next article in their right to keep and bear their private arms.”

In 1803, American legal scholar St. George Tucker said of the Second Amendment, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He also criticized the British government for taking away its citizens’ guns under the pretext of preserving animal populations; he saw it as problematic that few people were allowed to keep guns in their homes.

And in the 19th century, when the Second Amendment came up in constitutional debates, it was typically treated as an individual right. The notorious 1857 Dred Scott decision warned ominously that if blacks were recognized as citizens, they would have a right to “keep and carry arms wherever they went.” In demonstrating the need for the Fourteenth Amendment, some advocates cited the disarming of blacks in the South as a violation of basic constitutional rights. In 1886’s Presser v. Illinois, the Court declined to strike down a state law against privately organized militias, but nonetheless wrote that “it is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states.”

The individual-right interpretation of the Second Amendment is a lot of things — the law of the land in the wake of Heller, for one. But it is not new.

— Robert VerBruggen is a deputy managing editor of National Review.



TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; democrats; jilllepore; lepore; liberalfascism; secondamendment; shallnotbeinfringed; youwillnotdisarmus
Does Jill Lepore have tenure? If so, she should lose it.
1 posted on 04/25/2012 1:19:24 PM PDT by neverdem
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; wku man; SLB; ...
Good article.

Click the Gadsden flag for pro-gun resources!

2 posted on 04/25/2012 1:28:56 PM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: neverdem
Good thing Robert Bork wasn't ruling on Heller...

_____________________________________________________

The Second Amendment states somewhat ambiguously: "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."

The first part of the Amendment supports proponents of gun control by seeming to make the possession of firearms contingent upon being a member of a state-regulated militia.

The next part is cited by opponents of gun control as a guarantee of the individual's right to possess such weapons, since he can always be called to militia service.

The Supreme Court has consistently ruled that there is no individual right to own a firearm. The Second Amendment was designed to allow states to defend themselves against a possible tyrannical national government.

Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose.

-- footnote Slouching Towards Gomorrah

3 posted on 04/25/2012 1:31:15 PM PDT by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: neverdem
Ms. Lepore's opinions maybe considered erudite and perhaps they are however, that does not make her right.

The world's largest army... America 's hunters! A non-historian added up the deer license sales in just a handful of states and arrived at a striking conclusion:

There were over 600,000 hunters this season in the state of Wisconsin .

Worth a repeat:.....................
Over the last several months Wisconsin's hunters became the eighth largest army in the world.

More men under arms than in Iran.

More than France and Germany combined.

These men deployed to the woods of a single American state, Wisconsin , to hunt with firearms, and no one was killed.

That number pales in comparison to the 750,000 who hunted the woods of Pennsylvania, and Michigan's 700,000 hunters, all of whom have now returned home safely.

Toss in a quarter million hunters in West Virginia and it literally establishes the fact that the hunters of those four states alone would comprise the largest army in the world.....And then add in the total number of hunters in the other 46 states..It's millions more.

The point?

America will forever be safe from foreign invasion with that kind of home-grown firepower.

Hunting -- it's not just a way to fill the freezer. It's a matter of national security and carries the weight of the Second Amendment to all Americans regardless of some professor's misrepresenting same.

4 posted on 04/25/2012 1:45:38 PM PDT by yoe
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To: neverdem
If anyone wants to spend their life in a college and be a professing Marxist, they too can become a Harvard historian.

This simple-minded slug is a perfect example of what should become known as The Obama Principle: Rising within the Leftist milieu equal to the level of your hatred of America. "Harvard historian" is pretty high, but "President of the United States" is almost as high as you can go.

The only level above president is "Chairman of Soros Fund Management".

5 posted on 04/25/2012 1:51:12 PM PDT by Dr. Thorne (Don't vote for anyone who worked for Goldman Sachs)
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To: neverdem
“a gun is a machine made to fire a missile that can bore through flesh”

Like that's a bad thing. I actually like that line, it would work well in a tough guy movie.

6 posted on 04/25/2012 2:07:07 PM PDT by Teotwawki (To Him be the glory throughout all generations.)
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To: Ken H

And we have to thank Ted Kennedy for Borking him! God works His will in strange wasys.


7 posted on 04/25/2012 2:21:56 PM PDT by neverdem (Xin loi minh oi)
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To: 2nd amendment mama

ping!


8 posted on 04/25/2012 2:34:43 PM PDT by basil (It's time to rid the country of "gun free zones" aka "Killing Fields")
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To: Teotwawki

Good catch; and, yes, it would work well in a movie.


9 posted on 04/25/2012 2:48:45 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: neverdem

There are well over 20,000 gun laws on the books today and not one of them will prevent the next gun crime.

Laws are written to control the law-abiding. Criminals could care less.

That’s why they are called criminals!


10 posted on 04/25/2012 3:05:32 PM PDT by DustyMoment (Congress - Another name for white collar criminals!!)
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To: neverdem
From the article: "In Miller, the court ruled that because a sawed-off shotgun serves no militia purpose, the right to keep and bear one is not covered by the Second Amendment. "

Actually, Miller was even more in tune with a proper reading of the Second Amendment than that.

The District Court originally dismissed the charges against Miller and his co-defendant Layton, simply citing the Second Amendment.

It was the prosecution who appealed and the Supreme Court accepted a direct appeal, bypassing the Circuit Court of Appeals.

The Supreme Court's ruling in Miller REJECTED the collective-right nonsense. What the Court did say was that they had no evidence to indicate whether a short-barreled shotgun was useful to a Militia, mainly because no trial had ever been held.

The Supreme Court reversed the District Court's dismissal and REMANDED the case back to that lower court. The intention was to have the trial court determine whether a short-barreled shotgun was useful to a Militia. Since short-barreled shotguns had been used in World War I, the so-called "trench gun", it would have been a piece of cake to overturn the National Firearms Act of 1934. There would have been no expectation that Miller had to be a member of a "Militia".

Unfortunately, before any action took place in the lower court, Miller died and Layton evidently copped a plea so nothing further was done with the case; with the exception that every lower court after that seemed to claim that the Miller decision established that the Second Amendment protected only state-organized Militia's. The Supreme Court committed treason in later years by failing to take cases which would right this terrible wrong.

11 posted on 04/25/2012 3:07:10 PM PDT by William Tell
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To: neverdem

The best way to describe Jill Lepore is “vehement”.

She vehemently hates the Tea Party. And guns. And conservatives. And the constitution.

She vehemently supports Obamacare.


12 posted on 04/25/2012 3:52:43 PM PDT by yefragetuwrabrumuy ("It is already like a government job," he said, "but with goats." -- Iranian goat smuggler)
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To: neverdem

These are people who would have been saying people shouldn’t be walking around with swords or knives for protection a couple hundred years ago when these were more mainstream “arms” of that day.

We didn’t have nearly as high percentage of the population back then have no morals and act as rabid animals as they do now. almost everyone was Christian or respected the principles of Christianity, were far more self-controlled than most people today. Plus justice and punishment was SWIFT in those days. Nobody sitting around trying to understand why Johhny or Jane murdered someone and there’s too may of this class of person in jail.


13 posted on 04/25/2012 3:53:12 PM PDT by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
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To: William Tell
The Supreme Court committed treason in later years by failing to take cases which would right this terrible wrong.

The syllabus for U.S. v. Miller, which was written by staffers rather than any of the justices, says that the Court found the Second Amendment only protects state militias; at least one lower court cases cites language which appears in the syllabus but not in the actual decision in finding that the Second Amendment only protects state militias. It is unfortunate that the U.S. Supreme Court has been unwilling to take cases which would overturn the syllabus.

14 posted on 04/25/2012 4:13:42 PM PDT by supercat (Renounce Covetousness.)
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To: yoe

And there are a *lot* of folks who don’t hunt, who can still hit what is downrange. Just sayin’.


15 posted on 04/25/2012 8:15:26 PM PDT by FreedomPoster (Islam delenda est)
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To: neverdem
Perhaps Jill should knock on my Front door and try to confiscate my Firearms.

Nope, she would just Vote in a Democrat who will send the Brownshirts to do the job she is too scared to do. I'm still trying to get my head around the idea of a Democrat Gun Owner. How do they function in life with such an allegiance to a movement based on restricting the Rights of their fellow Citizens?

16 posted on 04/25/2012 8:30:06 PM PDT by Kickass Conservative (A day without Obama is like a day without a Tsunami.)
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To: yoe
Hunting -- it's not just a way to fill the freezer. It's a matter of national security and carries the weight of the Second Amendment to all Americans regardless of some professor's misrepresenting same.

We need to find a vertical, smooth cliff face overlooking a long valley somewhere in the west, and carve that quote into the living rock in letters 20 feet high and four feet deep -- and gilded.

17 posted on 04/25/2012 8:39:52 PM PDT by lentulusgracchus
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To: yefragetuwrabrumuy
The best way to describe Jill Lepore is “vehement”.

How about "hypocrite."

She's a bleeding heart liberal who is vehemently supportive of the same collective philosophy that murdered 200 million of its own people - and it doesn't bother her a bit. She'll slice and dice words all day long to get around it, while openly raging against the free market and conservatives.

She should be made to live in a house filled with the skulls of those murder victims, until she admits to herself what she really supports.

18 posted on 04/25/2012 11:03:45 PM PDT by Talisker (He who commands, must obey.)
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To: supercat
supercat said: "The syllabus for U.S. v. Miller, which was written by staffers rather than any of the justices, says that the Court found the Second Amendment only protects state militias..."

That's not my recollection. Can you provide details?

19 posted on 04/25/2012 11:10:11 PM PDT by William Tell
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To: William Tell
Please do not take my comment's as any way of a attack, but meant only to maybe bring a different view.

First off, from what I've heard about the "Miller case" United States v. Miller , 307, U.S., 174 (1939), before the SCOTUS, was that Miller was acting Pro Se, and did not have the money necessary to file any brief(s).

Remember this would have been a time when just copying cost(s) would have been thousands of dollar's, think "mimeograph machine(s)." See https://en.wikipedia.org/wiki/Mimeograph.

I don't know if my thought's are correct (Apparently they are, just slightly different from what I stated above) Reference Miller having not responded to any of the filings @ the SCOTUS, but maybe some else can add some information.

From http://encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=4742

5th (Fifth Paragraph) "Gordon Dean argued United States v. Miller et al. before the Supreme Court on March 30, 1939.

Defense counsel Gutensohn did not appear, sending a telegram to the Court on March 28, stating that his clients had been unable to pay him for his services."

20 posted on 04/25/2012 11:45:44 PM PDT by Stanwood_Dave ("Testilying." Cop's don't lie, they just Testily{ing} as taught in their respected Police Academy.)
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To: Ken H

Last time I checked, every male is required to sign up for selective service. Kinda sounds like a militia to me, so that means every male over the age of 18 can bear arms. And we don’t want to discriminate, so all females over the age of 18 should be afforded the same right. Problem solved about trying to infringe on our 2nd Ammendment Rights.


21 posted on 04/26/2012 2:36:11 AM PDT by mikefive (RLTW)
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To: neverdem
Does Jill Lepore have tenure? If so, she should lose it.

At Harvard, a pack of lies to support the anti-freedom viewpoint will probably enhance her progress to tenure if she doesn't already have it. Facts are less and less important in academia these days compared to the statist agenda. Human caused globull warming is not supported by any facts yet the liars who support it keep up their shrill cry. Gun control the same e. g. Michael A. Bellesiles Socialized medicine - "alternative energy" - the list of government bad ideas embraced by government worshipping academics is endless. They get their money in large part from the taxpayers through various government sources, and anything that empowers government at the expense of the individual looks good to them.

22 posted on 04/26/2012 4:05:15 AM PDT by from occupied ga (Your government is your most dangerous enemy)
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To: Stanwood_Dave
Stanwood_Dave said: "Please do not take my comment's as any way of a attack, ..."

No, I don't take your comments as an attack. I have in the past expended considerable energy refuting anti-Second Amendment postings by an ex-Freeper. The actual history of Second Amendment rulings is complicated enough.

I'm not sure that what I found online was a definitive source for either the Miller ruling or the syllabus. I'm sure it is online somewhere. I just don't recall any real justification for the misreadings of Miller perpetrated by anti-gun Appeals Courts.

Your comment would stand as justification for the misbehavior of those Appeals Courts and I wouldn't want to give them or their supporters the satisfaction of having anyone unjustifiably believe them.

23 posted on 04/26/2012 6:51:27 AM PDT by William Tell
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