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Living with guns and the 2nd Amendment
Josey1
Member Posts: 9,598 ✭✭
Living with guns and the 2nd Amendment
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Attorney General John Ashcroft says that the Second Amendment gives Americans a constitutional right to keep and bear arms. Does it? Here is what it says:
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.
Gun-shy Americans may wish it said, "The powers of the States to muster a well-regulated Militia shall not be infringed." But James Madison's words were the "right of the people."
When Madison wrote "right" and "people," he meant individuals. That's what those terms mean in the Bill of Rights and elsewhere. When the Constitution grants authority to the states, it says "powers of the States."
The U.S. Supreme Court has not spoken on this in a big way since 1939 in Miller v. United States, a case involving a sawed-off shotgun. In that case, Justice James McReynolds wrote that a sawed-off shotgun was not "any part of the ordinary military equipment" of a militia, and that the federal government could ban it.
But the Miller case does not make gun ownership a "collective right," which the anti-gun folks say it is - and which would be no right at all.
Let us admit that the Second Amendment says what it says, and think whether we can live with it.
The amendment was adopted in 1791, when the arms people owned were flintlock pistols and muskets. The right cannot be limited to flintlocks any more than free speech can be limited to paper and ink. But if we interpret the Second Amendment as expansively as the First, then Americans may have an individual right to own machine guns - or any arms they can "bear," such as, perhaps, a Stinger missile. That is not tolerable. The amendment needs to be interpreted in a way that leads to a reasonable result.
Ashcroft, for all that his critics disparage him, does not argue for machine guns and Stinger missiles. His comments were part of legal arguments in two cases now being offered to the U.S. Supreme Court. In one case, the government argues against a right to own machine guns. In the other case, the government argues that a man under a restraining order for wife beating may be forbidden from owning a gun. So in these two cases, Ashcroft's department argues an anti-gun position, which is the correct one.
Let us be clear on this: If a new interpretation means that any individual can buy a handgun and walk away with it, or may own a machine gun, the Second Amendment cannot stand as it is; that would be too broad for a modern society.
If Ashcroft's statement that the Second Amendment "broadly protects the rights of individuals" means individuals verified to be of adult age and clean records; if "arms" means non-automatic pistols, rifles and shotguns - weapons broadly comparable to those available in 1791; and if governments are allowed reasonable regulations for the safety of the public, the Second Amendment may take its place among the other rights of individuals.
Copyright c 2002 The Seattle Times Company http://seattletimes.nwsource.com/html/editorialsopinion/134451438_rifled10.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
E-mail this article
Print this article
Search web archive
Attorney General John Ashcroft says that the Second Amendment gives Americans a constitutional right to keep and bear arms. Does it? Here is what it says:
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.
Gun-shy Americans may wish it said, "The powers of the States to muster a well-regulated Militia shall not be infringed." But James Madison's words were the "right of the people."
When Madison wrote "right" and "people," he meant individuals. That's what those terms mean in the Bill of Rights and elsewhere. When the Constitution grants authority to the states, it says "powers of the States."
The U.S. Supreme Court has not spoken on this in a big way since 1939 in Miller v. United States, a case involving a sawed-off shotgun. In that case, Justice James McReynolds wrote that a sawed-off shotgun was not "any part of the ordinary military equipment" of a militia, and that the federal government could ban it.
But the Miller case does not make gun ownership a "collective right," which the anti-gun folks say it is - and which would be no right at all.
Let us admit that the Second Amendment says what it says, and think whether we can live with it.
The amendment was adopted in 1791, when the arms people owned were flintlock pistols and muskets. The right cannot be limited to flintlocks any more than free speech can be limited to paper and ink. But if we interpret the Second Amendment as expansively as the First, then Americans may have an individual right to own machine guns - or any arms they can "bear," such as, perhaps, a Stinger missile. That is not tolerable. The amendment needs to be interpreted in a way that leads to a reasonable result.
Ashcroft, for all that his critics disparage him, does not argue for machine guns and Stinger missiles. His comments were part of legal arguments in two cases now being offered to the U.S. Supreme Court. In one case, the government argues against a right to own machine guns. In the other case, the government argues that a man under a restraining order for wife beating may be forbidden from owning a gun. So in these two cases, Ashcroft's department argues an anti-gun position, which is the correct one.
Let us be clear on this: If a new interpretation means that any individual can buy a handgun and walk away with it, or may own a machine gun, the Second Amendment cannot stand as it is; that would be too broad for a modern society.
If Ashcroft's statement that the Second Amendment "broadly protects the rights of individuals" means individuals verified to be of adult age and clean records; if "arms" means non-automatic pistols, rifles and shotguns - weapons broadly comparable to those available in 1791; and if governments are allowed reasonable regulations for the safety of the public, the Second Amendment may take its place among the other rights of individuals.
Copyright c 2002 The Seattle Times Company http://seattletimes.nwsource.com/html/editorialsopinion/134451438_rifled10.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
WyomingSwede
Someone here on the board recently correctly pointed out that the Bill of Rights are about the rights of the people not the rights of the governments of and within the U.S. Therefor discussions of the militia being the National Guard or some such "official" militia simply do not obtain.