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Justice on Guns
Josey1
Member Posts: 9,598 ✭✭
Justice on Guns
Jun 02, 2002
The keepers of conventional wisdom recoiled in horror when, in recent court filings, the Justice Department expressed the view that the Second Amendment protects not merely a collective right of state militias to own firearms but also an individual right to do so. Why, they said, the very notion goes against decades of Justice Department policy, the opinion of leading legal minds, and longstanding Supreme Court precedent. And besides, guns are awful.
Well. Many widely accepted and longstanding doctrines - Jim Crow comes to mind - rightfully have come to an end over time, and the notion that the Second Amendment upholds only a collective right should do so as well.
To support that notion is to believe the Amendment, second in a list of amendments adopted to safeguard individuals from overweening governmental power, is not meant to safeguard individuals from overweening governmental power. To support that notion is to believe that while "the people" in the First, Fourth, Ninth, and Tenth Amendments refers to individuals, "the people" in the Second Amendment refers only to groups.
But even if the collective-right argument is correct, it still ends up supporting . . . an individual right. The clause about the well-regulated militia probably ranks as one of the least understood in American history. Beginning in 1792 with the Militia Act and up to the latest (1956) version of that act, the militia refers to all able-bodied men between 17 and 45. (As constitutional law professor Eugene Volokh argues, Supreme Court rulings on gender equity would extend that category to women as well.) The first class making up the militia under federal law is an "organized militia, which consists of the National Guard." The second class is an "unorganized militia, which consists of members of the militia who are not members of the National Guard" - i.e., the rest of us.
The Supreme Court case so often cited by opponents of individual gun ownership, U.S. v. Miller (1939), said the Second Amendment did not extend protection to the use of a sawed-off shotgun because such a weapon could not be said to have a reasonable relationship to the maintenance of a militia. But it reiterated the position that the militia consists of "all males physically capable of acting in concert for the common defense," and that "these men were expected to appear bearing arms supplied by themselves."
In taking that position, the Court echoed the assertions of Founders such as George Mason ("I ask, sir, what is the Militia? It is the whole people"), Samuel Adams ("The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms"), and Thomas Jefferson ("No free man shall ever be debarred from the use of arms").
So as it turns out, the Justice Department is not so much making a radical departure from established doctrine as it is returning to the original doctrine of the Founders - and others with an understanding of the philosophy behind the Second Amendment. "The right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against this tyranny which now appears remote in America, but which historically has proved to be always possible." The arch-conservative loose cannon who shot off his mouth in such fashion was not Attorney General John Ashcroft, but Hubert H. Humphrey.
http://timesdispatch.com/editorials/more/MGBX20XLW1D.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
Jun 02, 2002
The keepers of conventional wisdom recoiled in horror when, in recent court filings, the Justice Department expressed the view that the Second Amendment protects not merely a collective right of state militias to own firearms but also an individual right to do so. Why, they said, the very notion goes against decades of Justice Department policy, the opinion of leading legal minds, and longstanding Supreme Court precedent. And besides, guns are awful.
Well. Many widely accepted and longstanding doctrines - Jim Crow comes to mind - rightfully have come to an end over time, and the notion that the Second Amendment upholds only a collective right should do so as well.
To support that notion is to believe the Amendment, second in a list of amendments adopted to safeguard individuals from overweening governmental power, is not meant to safeguard individuals from overweening governmental power. To support that notion is to believe that while "the people" in the First, Fourth, Ninth, and Tenth Amendments refers to individuals, "the people" in the Second Amendment refers only to groups.
But even if the collective-right argument is correct, it still ends up supporting . . . an individual right. The clause about the well-regulated militia probably ranks as one of the least understood in American history. Beginning in 1792 with the Militia Act and up to the latest (1956) version of that act, the militia refers to all able-bodied men between 17 and 45. (As constitutional law professor Eugene Volokh argues, Supreme Court rulings on gender equity would extend that category to women as well.) The first class making up the militia under federal law is an "organized militia, which consists of the National Guard." The second class is an "unorganized militia, which consists of members of the militia who are not members of the National Guard" - i.e., the rest of us.
The Supreme Court case so often cited by opponents of individual gun ownership, U.S. v. Miller (1939), said the Second Amendment did not extend protection to the use of a sawed-off shotgun because such a weapon could not be said to have a reasonable relationship to the maintenance of a militia. But it reiterated the position that the militia consists of "all males physically capable of acting in concert for the common defense," and that "these men were expected to appear bearing arms supplied by themselves."
In taking that position, the Court echoed the assertions of Founders such as George Mason ("I ask, sir, what is the Militia? It is the whole people"), Samuel Adams ("The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms"), and Thomas Jefferson ("No free man shall ever be debarred from the use of arms").
So as it turns out, the Justice Department is not so much making a radical departure from established doctrine as it is returning to the original doctrine of the Founders - and others with an understanding of the philosophy behind the Second Amendment. "The right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against this tyranny which now appears remote in America, but which historically has proved to be always possible." The arch-conservative loose cannon who shot off his mouth in such fashion was not Attorney General John Ashcroft, but Hubert H. Humphrey.
http://timesdispatch.com/editorials/more/MGBX20XLW1D.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