Amendment 2 “The Right to Bear Arms”

This report provides background information about the Second Amendment. Also it offers a viewpoint on the magnitude and nature of the problem “right to keep and bear arms” and discusses the two competing interpretations that predominates the Second Amendment. Furthermore this report identifies political, cultural, administrative, and law enforcement realities that pose enormous obstructions to formulating, passing, implementing, as well as enforcing more gun controls. Introduction

Regardless of being the subject of huge popular and political controversy, until relatively recently the Second Amendment was one of the most neglected areas of constitutional scholarship. The regulation of arms is not just a technical problem. It is an extremely charged ideological and emotional issue that carries an incredible amount of symbolic baggage. For American society, the debate over gun control is more like the debates over abortion and school prayer than like a debate over automobile safety.

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Millions of Americans, together with a noteworthy percentage of the intellectual elite, think that guns are bad in themselves and that owning them is at best misguided and at worst pathological. For millions of American gun owners, the right to keep and bear arms is associated to freedom and democracy; it is an article of faith similar to the belief that other Americans have in the centrality of freedom of speech and religion.

That several Americans dismiss the right to bear arms as a myth that has no legal or constitutional reality is a challenge to the believers' worldview and offend to their very status in American society. It is just a short step to considering the proponents of gun prohibition as “enemies” to be resisted and condemned. Two competing interpretations of the Second Amendment predominate, the "collective" or "states' rights" interpretation and the "individual rights" interpretation.

In the collective rights model, American citizens have no individual right to bear arms; such a right, it is argued, belongs merely to those in the state militias since the purpose of the Amendment was to reassure the states that through the maintenance of "well regulated" militias they would be capable to protect themselves from any danger posed by the new national government's standing army.

On the contrary, advocates of the individual rights interpretation contend that the Second Amendment protects the rights of all individuals to keep and bear arms (subject to certain conditions), not just those in the state militias; that it is the "right of the people. " This, it is argued, is in reference to how the First, Fourth, Ninth, and Tenth Amendments are interpreted.

While the terms "republican" and "liberal" have clear-cut meanings to historians, the use of these terms can be quite confusing to the uninitiated, since the "republican" school of Second Amendment interpretation would doubtless find themselves at variance with many Republican politicians today, and the "liberal" school of Second Amendment analysis, with a few notable exceptions, would probably prefix the word "classical" before calling themselves liberals of any sort. (Clayton E. Cramer, 1994).

The republican school asserts that the right to keep and bear arms was an outgrowth of republicanism, intended to protect the society from the related evils of a standing army and tyranny. While the arms might be broadly distributed, they would still be possessed by the population for the purpose of collective action against a foreign army, or a domestic tyrant. (Clayton E. Cramer, 1994). The liberal school asserts that the right was individual, a logical outgrowth of the right to self-defense. Such arms would be for the defense of the individual against private criminals; there was no need for a collective purpose or ownership.

(Clayton E. Cramer, 1994). When it comes to the question of identify the intellectual and historical antecedents of the Second Amendment, there is, again, broad agreement between the collective and individual rights theorists. Whether tracing its roots through the Florentine political tradition and Machiavelli or the radical English Whig tradition of James Harrington, John Trenchard, and Thomas Gordon, both sides accept that the Second Amendment has to be understood, at least in part, in terms of republicanism.

Particularly, there is no argument that an armed citizenry was, as militia members contend, an essential component of eighteenth-century republican thought. The cause for this, in Gordon Wood's memorable phrase, is that republics were seen to be states of "fragile beauty" Which is to say, that due to man's continual craving for power it was believed that republics were in constant danger from both external enemies and internal corruption, and citizens' militias were regarded as very important in resisting these dangers.

(Gordon S. Wood, 1969) Certainly, the militia movement's engagement with republicanism assists to elucidate why it reacts to any attempt at gun control with horror. After all, it was a commonplace of eighteenth-century republicanism that merely tyrannical governments would attempt to disarm their people. Voicing such concerns-and linking them to the sacrifices made by America's Revolutionary generation-the U. S. Militia takes the view that even though "foreign governments may disarm their subjects, we will not go down that road.

" "We will not disarm," they declare. As militia members see it, the right to bear arms allows Americans "to back up our other Bill of Rights. " Lose this right, they compete, and, sooner or later, they will lose all their rights. Republican support of citizens' militias went beyond the often expressed concern that standing armies might turn out to be the pawns of corrupt governments, and issues of who eventually controlled the means of force in society, however. The ownership of arms was essential to the very idea of republican citizenship.

Arms, it was argued, provided the means by which a citizen could both maintain his independence and-as with jury service-actively participate in his own governance. In classical and early modern republican thought, arms were the "ultimo ratio whereby the citizen pictures his life to the protection of the state and simultaneously makes sure that the choice to expose it cannot be taken without him. It was the possession of arms which made a man a full citizen, able to, and required to display, the multiple adaptability and self-development which is the crown of citizenship. Access to arms would not create a republican citizen in itself, though.

The key to citizenship certainly the key to the successful functioning of republican society as a whole-was to be found in the concept of virtue. Wood describes virtue as the "willingness of the individual to sacrifice his private interests for the good of the community" (Gordon S. Wood, 1969) that is, to serve the common good-and the ultimate sacrifice an individual could make, certainly, was to lay down his life in defense of the republic. This is mainly worth noting since it adds a republican dimension to the obvious readiness of militia members to sacrifice themselves in emulation of their Revolutionary forefathers.

Considerably, militias were seen as institutions in which citizens could be trained in virtue-where virtue would not merely be inculcated and nurtured, however as well exercised in the act of resisting the republic's enemies. Modern militia members are well aware of these aspects of republicanism: that militias were intended to offer a means for citizens to vigorously participate in the republican polity and had a vital role in instilling virtue in those citizens. Pro– and anti–gun control proponents sharply disagree regarding whether the Second Amendment poses an impediment to gun controls.

Gun control proponents argue that the Second Amendment has nothing to do with individual rights; it guarantees merely that states can maintain organized militia units. They point to an unbroken line of court decisions that reject Second Amendment challenges to federal, state, and local gun controls. Gun owners' rights supporters cite a large and impressive composition of mostly historical scholarship that reveals that the founding fathers and, subsequently, the authors and ratifiers of the Fourteenth Amendment, intended the Second Amendment to protect the individual American's right to be armed.

There is much to be said on both sides of the constitutional debate. The great majority of state constitutions have clauses protecting the right of gun ownership. The merely states whose constitutions do not hold a right to bear arms are Iowa, California, Maryland, New Jersey, New York, and Minnesota. However, Iowa's, California's, and New Jersey's constitutions openly protect the right to “self-defense. ” Some state constitutions use the same language as the Second Amendment, however several openly protect the individual's right to keep and bear arms.

Consider Vermont's constitution, enacted in 1777: “That the people have a right to bear arms for the defense of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. ” http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm Pennsylvania's constitutional right to bear arms is measured to be the precursor to the Second Amendment.

Enacted in 1790, at the time that the Bill of Rights was being ratified, it states: “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. ” http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm This language has always been interpreted by Pennsylvania courts to protect the right of all Pennsylvanians, not just militiamen, to possess firearms. Oklahoma's constitution, enacted in 1907, overtly protects the right to keep a gun at home, at the same time as subjecting the carrying of concealed weapons to regulation:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. ” http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm In recent years, numerous states have added gun ownership rights to their constitutions. For instance, Wisconsin amended its constitution so that

“The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. ” http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm These state constitutional provisions would not protect gun owners from federal gun controls; however they protect gun owners against some state and local gun controls. The Second Amendment to the U. S. Constitution 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 abridged.

” http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm In U. S. v. Cruikshank, a nineteenth-century case, the U. S. Supreme Court held that the Second Amendment was merely a protection against federal infringements of a right to bear arms. Although this decision predated the Supreme Court's 20th century decisions incorporating various Bill of Rights guarantees into the Fourteenth Amendment's due process clause, with the outcome of guaranteeing those rights against violation by state and local governments, plus by the federal government.

It is not at all apparent that mid-nineteenth-century judges were unaware to any right to keep and bear arms. Consider this passage from the Supreme Court's infamous decision in Dred Scott v. Sandford (1856), in which the Supreme Court held that slaves and their descendants could claim no rights of citizenship. What is interesting from our viewpoint is the Court's understanding of what are the rights of citizenship. The Supreme Court pointed out that the framers could not have intended that slaves or their descendants ever be citizens because that

“would give to persons of the Negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State”. (Dred Scott v. Sandford, 60 U. S.

393 (1856)) Yale Law School professor Akhil Amar argues that the right of individuals to be armed was very much the intention of the drafters and ratifiers of the Fourteenth Amendment. After the Civil War, the southern states quickly passed “black codes” that clearly denied the newly freed slaves the right to keep and bear arms. The debates in Congress in the 1860s over the Civil Rights Act and the Fourteenth Amendment were laced with comments regarding the need to assure that the freed slaves not be kept disarmed and thus submissive, and that they be capable to enjoy the same right to keep and bear arms as white citizens. (Akhil Amar, 1998).

The Supreme Court has rendered merely one Second Amendment decision in the twentieth century. In U. S. v. Miller (1939), the Court held that, in making it a crime to own an unregistered sawed-off shotgun, the NFA did not violate the Second Amendment. Gun rights advocates say that the precedential value of the case is just that people are not guaranteed access to gangster weapons, like sawed-off shotguns, and that by negative inference they do have a right to arm themselves with traditional personal firearms. Gun controllers argue that the Second Amendment does not guarantee anybody anything and that Miller means that there is no personal right to possess firearms in the U. S. Constitution.

Focusing on the amendment's first clause, they argue that the amendment means only that Congress could not abolish the state militia, now the National Guard. Gun rights advocates believe that the Second Amendment guarantees every law-abiding American adult a right to keep and bear personal firearms. “Implicit in the Bill of Rights, as in the entire structure of the Constitution, are the twin hallmarks of traditional liberal thought: trust in the people; and distrust in government. ” (David Hardy, 1979). Some proponents of this interpretation stress that the right to keep and bear arms was intended to guarantee protection against government tyranny.

Liberal constitutional law theorist, William Van Alstyne, finds an individual rights view of the Second Amendment in a textual reading of the amendment. He argues that the amendment “Speaks to sources of security within a free state, within which… ‘the right of the people to keep and bear arms shall not be infringed. ’” He explains that this language guarantees the individual's right to have arms for self-defense and self-preservation. (William Van Alstyne, 1994). Harvard Law School Professor Lawrence Tribe, a person closely associated with liberal politics and the Democratic Party, as well concludes that “It is impossible to deny that some right to bear arms is among the rights of American citizens. ” (Lawrence H. Tribe, 2000).

Conceivably the Supreme Court will take a chance to interpret the Second Amendment in a recent Texas case. The U. S. District Court for the Northern District of Texas stated unconstitutional the federal law (18 U. S. C. sec. 922 [g][8]) which makes it a crime to own a firearm while under a restraining order for domestic violence as applied in a situation where the state divorce court, which issued the restraining order, had made no exclusive findings that the defendant posed a threat to his estranged wife. The district court held that the Second Amendment guarantees a personal right to keep and bear arms (U. S. v. Emerson, 46 F. Supp. 2d 598 [1999]). Two years later, the 5th Circuit Court of Appeals (Nov. 2001) affirmed, holding that

“we find that the history of the Second Amendment reinforces the plain meaning of the text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are members of a select militia or performing active military service or training. ” Even though the U. S. Supreme Court eventually affirmed that the Second Amendment does not guarantee an individual right to keep and bear arms, which may never happen, the contrary belief is strongly rooted in U. S. and English history, in the constitutions of most U. S. states, as well as in a mountain of pro-gun scholarship. Many gun owners think that possession of firearms is a right of American citizenship and would not be persuaded otherwise, even by a U. S. Supreme Court decision to the contrary, just as death penalty opponents suppose that the Supreme Court was wrongheaded in declaring executions to be constitutionally permissible.

Jeffrey Snyder made the point aggressively in his 1993 Public Interest article, “A Nation of Cowards”: “The repeal of the Second Amendment would no more render the outlawing of firearms legitimate than the repeal of the due process clause of the Fifth Amendment would authorize the government to imprison and kill people at will. A government that abrogates any of the Bills Of Rights, with or without majoritarian approval, forever votes illegitimately, becomes tyrannical, and loses the moral right to govern”. References: Akhil Amar (1998). The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press). Clayton E. Cramer (1994).

For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms; Praeger Publishers, 1994 David Hardy (1979). “The Second Amendment as a Restraint on State and Federal Firearms Restrictions,” in Restricting Handguns, ed. Don Kates (Great Barrington, Mass. : North River) Gordon S. Wood (1969). The Creation of the American Republic; Chapel Hill: University of North Carolina Press http://www. law. ucla. edu/faculty/volokh/beararms/statecon/htm Jeffrey Snyder (1993). Nation of Cowards; Public Interest article Lawrence H. Tribe (2000). American Constitutional Law, 3rd ed. (New York: Foundation) William Van Alstyne (1994). “The Second Amendment and the Personal Right to Arms,” Duke Law Journal 43

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