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What Does the Second Amendment Say About the RKBA
Josey1
Member Posts: 9,598 ✭✭
What Does the Second Amendment Say About the Right To Own Guns?
Dahlia Lithwick
Posted Tuesday, July 10, 2001, at 1:45 PM PT
In a recent letter to the NRA, Attorney General John Ashcroft claimed that the Second Amendment guarantees an individual the right to be armed. This conflicts with the Justice Department's official legal position, which holds that Second Amendment rights are limited to the collective rights of states to regulate their own militias.
What rights are there to own a gun under the federal Constitution?
The Second Amendment provides that "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 issue turns on whether that right to bear arms represents an "individual" or "collective" right. The NRA (and Ashcroft) advocate an affirmative individual right, akin to First Amendment free speech protections, granting us the right to have guns to hunt, protect ourselves, and hold government storm troopers at bay. Gun control activists and the Justice Department (save, apparently, for Ashcroft) hold that the right as it is codified in the Second Amendment only protects the states' authority to maintain formal, organized militias. Because the Second Amendment only concerns federal efforts to regulate firearms, state gun control efforts do not implicate the Second Amendment, and most gun laws are promulgated at the state level.
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State law and state constitutions may change, but the progress of Second Amendment jurisprudence is glacial. As a matter of pure legal precedent, the Justice Department likely has the winning argument in this debate simply because the last time the U.S. Supreme Court ruled on this point was in 1939. In United States v. Miller, the court held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Second Amendment. The court stated that:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
The Supreme Court has turned down every opportunity to accept a new case and clarify the question of whether Miller established a definitive test requiring some connection between guns and state militias or whether it was announcing a one-time-only rule about Jack Miller and his shotgun. Still, the lower courts have followed the first view, and, in the wake of Miller, virtually every lower court has accepted the state militia/collective rights test as a settled point of law. While a fascinating normative debate over whether or not the right should be an individual one rages in the academy, in think tanks, and around the candy machines at NRA headquarters, the Second Amendment issue is not a close call in the courthouse. Eminent legal scholars, including Sanford Levinson and historians such as Emory's Michael Bellesiles, have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country. [Updated May 8, 2002: Bellesiles' methodology has recently come under fire by constitutional scholars.] None of it has induced the Supreme Court to step into the fray.
The modern Supreme Court has invalidated federal gun laws, most recently in United States v. Lopez, but not on Second Amendment grounds. Nothing about the decision in Lopez reinforces an individual's right to bear arms; it merely curbs congressional attempts to regulate guns, which is by no means the same thing.
Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a "hoax" and "false consciousness." Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda. Others argue that the personal right to a gun is nevertheless a right whose time has come and that it's just a matter of the courts catching up to public opinion.
Next question?
Webster's College Dictionary
The most up-to-date and clearly written dictionary for the new millennium!
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Dahlia Lithwick is a Slate senior editor.
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What did you think of this article?
Join the Fray, our reader discussion forum
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Reader Comments From The Fray:
[Notes from the Fray Editor: Oh how we love a good argument about guns: we'll never be out of a job as long as there are Frays like this one to deal with. We brought out the Multiple Post Summarizer, and it came up with two answers:
1) I have a right to a gun.
2) No you haven't.
A lot more people said 1) than 2), probably by a factor of 10.
The posts below represent some of the arguments, with one exception: Munguza found merit in both sides and tried to be reasonable and reach a compromise, so his post did not resemble anyone else's. Kija, here, had an interesting point about the NRA's views on the Constitution, and there was more on related topics in a thread started by Steve Sheppard here. Zaphod B. has some quotes from the founding fathers here. Wakefield Tolbert tells us here about the toaster argument--as veterans of 2nd Amendment discussions in the Fray, we were glad to see a variation on the favorite bathtub argument. Cato the Censor said "The Second Amendment is obsolete" and provoked a long discussion. Ananda Gupta looked at some other court decisions.
Now, has any of that changed anyone's mind?]
A politician's views on guns provide a window into whether he or she trusts the people or is like those European despots that James Madison sneeringly referred to as unwilling to trust their people with arms. I think this is why so many computer geeks...are also in favor of gun rights. They, too, enjoy a powerful technology that politicians fear and the New York Times vilifies
--A.G.Android
(To reply, click here.)
The question of whether the people have the right to bear arms is a modern one. For the framers, the right was as obvious as a farmer's right to own a plow because for many, including the farmer, a gun was an essential tool.
It just so happens that the idea of someone trying to overthrow a government of the people, by the people for the people was a more immediate concern for the framers than it is for us. In their wisdom, they realized that the only way "the people" would give up self-governance would be under a state of duress. To protect against this possibility, the framers guaranteed the right to bear arms but didn't envision a day when the argument could be made that guns serve no purpose, i.e. they are no longer a useful tool.
So, you can argue the merits of guns all you want, but rest assured if the framers could time travel to today, they would no doubt take great pleasure in explaining to all of the gun control lobbyists how useful those seemingly outmoded contraptions known as guns can be when someone above the law comes knocking at your door
--Ender
(To reply, click here.)
To Ender:
You're making a mighty confident claim about how the founders saw things when you say that, "For the framers, the right was as obvious as a farmer's right to own a plow..." I, for one, am somewhat less certain about what the framers meant about almost anything; surely their intent isn't "obvious" to any but the most brilliant of historical scholars and time-traveling mind readers.
More importantly, you've done in your post exactly what Lithwick discusses in her article, namely, substitute ideological piety and propaganda for historical and legal research. Do you have a serious argument to make that might lead others less privy to the minds of the framers to your position? Or, even less demanding, a clear answer to the confusion surrounding the historical scholarship?
--Ed Wingenbach
(To reply, click here.)
[This was by no means the end of the argument--check out the whole thread.]
As a person sympathetic with efforts to limit the availability of firearms through legislation, I also find many arguments for individual gun ownership reasonable and legally defensible. The Second Amendment states "...the right of the people to keep and bear arms." It seems within the bounds of reason to construe "the people" as referring to any and all American citizens.
The counter-argument is that the Framers intended this right only for citizens serving in a formal "well-regulated militia" and that they never wanted any person to be able to possess a firearm. But the same can be said about women, blacks, and Native Americans voting -- the framers clearly didn't want them to have the right to vote, and later generations found it appropriate to extend this constitutional right to a larger segment of the citizenry.
It seems that Second Amendment rights have gone through a similar expansion based upon a demand from citizens that has generally been considered legitimate, especially since the framers didn't explicitly prohibit gun ownership to anyone (they clearly found some things worth prohibiting outright, like establishing government religion & religious tests for office).
At the same time, gun rights advocates have to admit that it is equally reasonable and not unconstitutional for the government to place legal restrictions on firearm ownership and use in order to ensure public safety if circumstances change and if the people demand it. Rights always expand and contract according to the needs of the day, and we have seen this happen with almost every constitutionally-guaranteed right; the American system is designed with sufficient checks & balances to minimize the risks of rights being entirely taken away (although Scalia & Co. are doing their best to circumvent this).
--Munguza
http://slate.msn.com/?id=1007957
"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
Dahlia Lithwick
Posted Tuesday, July 10, 2001, at 1:45 PM PT
In a recent letter to the NRA, Attorney General John Ashcroft claimed that the Second Amendment guarantees an individual the right to be armed. This conflicts with the Justice Department's official legal position, which holds that Second Amendment rights are limited to the collective rights of states to regulate their own militias.
What rights are there to own a gun under the federal Constitution?
The Second Amendment provides that "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 issue turns on whether that right to bear arms represents an "individual" or "collective" right. The NRA (and Ashcroft) advocate an affirmative individual right, akin to First Amendment free speech protections, granting us the right to have guns to hunt, protect ourselves, and hold government storm troopers at bay. Gun control activists and the Justice Department (save, apparently, for Ashcroft) hold that the right as it is codified in the Second Amendment only protects the states' authority to maintain formal, organized militias. Because the Second Amendment only concerns federal efforts to regulate firearms, state gun control efforts do not implicate the Second Amendment, and most gun laws are promulgated at the state level.
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State law and state constitutions may change, but the progress of Second Amendment jurisprudence is glacial. As a matter of pure legal precedent, the Justice Department likely has the winning argument in this debate simply because the last time the U.S. Supreme Court ruled on this point was in 1939. In United States v. Miller, the court held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Second Amendment. The court stated that:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
The Supreme Court has turned down every opportunity to accept a new case and clarify the question of whether Miller established a definitive test requiring some connection between guns and state militias or whether it was announcing a one-time-only rule about Jack Miller and his shotgun. Still, the lower courts have followed the first view, and, in the wake of Miller, virtually every lower court has accepted the state militia/collective rights test as a settled point of law. While a fascinating normative debate over whether or not the right should be an individual one rages in the academy, in think tanks, and around the candy machines at NRA headquarters, the Second Amendment issue is not a close call in the courthouse. Eminent legal scholars, including Sanford Levinson and historians such as Emory's Michael Bellesiles, have done some staggering scholarly work on the subject of the original intent of the Framers and the prevalence of guns at the time of the founding of the country. [Updated May 8, 2002: Bellesiles' methodology has recently come under fire by constitutional scholars.] None of it has induced the Supreme Court to step into the fray.
The modern Supreme Court has invalidated federal gun laws, most recently in United States v. Lopez, but not on Second Amendment grounds. Nothing about the decision in Lopez reinforces an individual's right to bear arms; it merely curbs congressional attempts to regulate guns, which is by no means the same thing.
Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a "hoax" and "false consciousness." Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda. Others argue that the personal right to a gun is nevertheless a right whose time has come and that it's just a matter of the courts catching up to public opinion.
Next question?
Webster's College Dictionary
The most up-to-date and clearly written dictionary for the new millennium!
Barnes & Noble
Dahlia Lithwick is a Slate senior editor.
Can someone under house arrest host a dinner party?
posted May 6, 2002
Julie Bosman
Explainer Mailbag: Who is that missing Osbourne?
posted May 3, 2002
Julie Bosman
Cardinal bishop, cardinal deacon, cardinal priest: What's the difference?
posted April 29, 2002
Julie Bosman
What's the difference between France's president and prime minister?
posted April 26, 2002
Kate Taylor
What Is the Church of the Nativity?
posted April 25, 2002
Julie Bosman
Search for more Explainer in our archive.
The Democrat Who's Killing the Democrats
Are We Really at War With Terrorism?
Pregnancy for Dummies: The TV Show
What did you think of this article?
Join the Fray, our reader discussion forum
POST A MESSAGE READ MESSAGES
Reader Comments From The Fray:
[Notes from the Fray Editor: Oh how we love a good argument about guns: we'll never be out of a job as long as there are Frays like this one to deal with. We brought out the Multiple Post Summarizer, and it came up with two answers:
1) I have a right to a gun.
2) No you haven't.
A lot more people said 1) than 2), probably by a factor of 10.
The posts below represent some of the arguments, with one exception: Munguza found merit in both sides and tried to be reasonable and reach a compromise, so his post did not resemble anyone else's. Kija, here, had an interesting point about the NRA's views on the Constitution, and there was more on related topics in a thread started by Steve Sheppard here. Zaphod B. has some quotes from the founding fathers here. Wakefield Tolbert tells us here about the toaster argument--as veterans of 2nd Amendment discussions in the Fray, we were glad to see a variation on the favorite bathtub argument. Cato the Censor said "The Second Amendment is obsolete" and provoked a long discussion. Ananda Gupta looked at some other court decisions.
Now, has any of that changed anyone's mind?]
A politician's views on guns provide a window into whether he or she trusts the people or is like those European despots that James Madison sneeringly referred to as unwilling to trust their people with arms. I think this is why so many computer geeks...are also in favor of gun rights. They, too, enjoy a powerful technology that politicians fear and the New York Times vilifies
--A.G.Android
(To reply, click here.)
The question of whether the people have the right to bear arms is a modern one. For the framers, the right was as obvious as a farmer's right to own a plow because for many, including the farmer, a gun was an essential tool.
It just so happens that the idea of someone trying to overthrow a government of the people, by the people for the people was a more immediate concern for the framers than it is for us. In their wisdom, they realized that the only way "the people" would give up self-governance would be under a state of duress. To protect against this possibility, the framers guaranteed the right to bear arms but didn't envision a day when the argument could be made that guns serve no purpose, i.e. they are no longer a useful tool.
So, you can argue the merits of guns all you want, but rest assured if the framers could time travel to today, they would no doubt take great pleasure in explaining to all of the gun control lobbyists how useful those seemingly outmoded contraptions known as guns can be when someone above the law comes knocking at your door
--Ender
(To reply, click here.)
To Ender:
You're making a mighty confident claim about how the founders saw things when you say that, "For the framers, the right was as obvious as a farmer's right to own a plow..." I, for one, am somewhat less certain about what the framers meant about almost anything; surely their intent isn't "obvious" to any but the most brilliant of historical scholars and time-traveling mind readers.
More importantly, you've done in your post exactly what Lithwick discusses in her article, namely, substitute ideological piety and propaganda for historical and legal research. Do you have a serious argument to make that might lead others less privy to the minds of the framers to your position? Or, even less demanding, a clear answer to the confusion surrounding the historical scholarship?
--Ed Wingenbach
(To reply, click here.)
[This was by no means the end of the argument--check out the whole thread.]
As a person sympathetic with efforts to limit the availability of firearms through legislation, I also find many arguments for individual gun ownership reasonable and legally defensible. The Second Amendment states "...the right of the people to keep and bear arms." It seems within the bounds of reason to construe "the people" as referring to any and all American citizens.
The counter-argument is that the Framers intended this right only for citizens serving in a formal "well-regulated militia" and that they never wanted any person to be able to possess a firearm. But the same can be said about women, blacks, and Native Americans voting -- the framers clearly didn't want them to have the right to vote, and later generations found it appropriate to extend this constitutional right to a larger segment of the citizenry.
It seems that Second Amendment rights have gone through a similar expansion based upon a demand from citizens that has generally been considered legitimate, especially since the framers didn't explicitly prohibit gun ownership to anyone (they clearly found some things worth prohibiting outright, like establishing government religion & religious tests for office).
At the same time, gun rights advocates have to admit that it is equally reasonable and not unconstitutional for the government to place legal restrictions on firearm ownership and use in order to ensure public safety if circumstances change and if the people demand it. Rights always expand and contract according to the needs of the day, and we have seen this happen with almost every constitutionally-guaranteed right; the American system is designed with sufficient checks & balances to minimize the risks of rights being entirely taken away (although Scalia & Co. are doing their best to circumvent this).
--Munguza
http://slate.msn.com/?id=1007957
"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