The 2nd Amendment

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The 2nd Amendment

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The Resurrection of the 2nd Amendment

By Peter Alan Kasler

The 1980s have seen enormous new research on the origins of the constitutional right to arms. As a result, it is no longer intellectually credible to deny that the Second Amendment guarantees to every responsible, law-abiding adult the right to own handguns, rifles, and shotguns. These days the only people who deny the individual right to arms are the under- or ill-informed and the antigun lobby. They dismiss the right afforded by the Second Amendment as a "collective right," claiming that it is a "right" which cannot be asserted by individuals for themselves or on behalf of the people collectively. This is, of course, nonsense A right that no one can enforce is no right at all. The meaningless "collective right" concept violates Chief Justice Marshall's basic rule of interpretation that it may not be presumed "that any clause in the Constitution is intended to be without effect."

Typical of the anti-Second Amendment argument is a guest editorial in the New York Times entitled "What Right To Bear Arms?" It was written by a young man named Abrams whose only stated qualification was that he was about to graduate from college and had been accepted into law school. He is, in fact, the son of the Times' lawyer.

Disagreement with Mr. Abrams by qualified constitutional scholars was not long in coming -- the most important a letter to the Times by Robert Cottrol, a liberal black legal historian then at Boston College School of Law, and other law professors and eminent constitutional historians. The only conservative cosigner was Charles Rice, Professor of Constitutional Law at Notre Dame Law School. Conspicuous liberal cosigners of Cottrol's letter included Akhil Amar of Yale Law School and Sanford Levinson of the University of Texas. Ray Diamond, a black law professor and legal historian at Louisiana State Law School, and historians from UCLA and two ultraliberal colleges, Reed and Kenton. A particularly significant cosigner was Daniel Polsby, a law professor at Northwestern University Law school. Polsby is significant because a decade ago he was quoted ridiculing the Second Amendment by Chicago Sun Times columnist Mike Royko.

Since then, Professor Polsby has studied the issue and reviewed the scholarly literature of the 1980s. As a result of that effort Polsby has reversed his position, even to the extent that he co-authored (without compensation) an Amicus Currie (Friend of the court) brief in support of the National Rifle Association's position in attacking California's Roberti-Roos Assault Weapon Control Act. The amici in that action are the American Federation of Police, the Congress of Racial Equality (the black civil rights organization which supported Bernhard Goetz), and the Second Amendment Foundation.

Predictably, the very antigun New York Times refused to print this letter by eminent academics which demolished its student editorialist and acknowledged the Second Amendment's guarantee of the individual's right to arms.

What convinced all these professors and scholars was the large amount of research on the Amendment that has appeared in the past decade. Perhaps the most important is direct legislative history. The written analysis before Congress when it enacted the Bill of Rights said of the Second Amendment: "the people are confirmed in their right to keep and bear their private arms."

The fact that the Amendment is phrased "right of the people" is emphasized by Professor Kates, probably the most authoritative scholarly writer on the Second Amendment, who notes that that phrase is used in every other Amendment to mean an individual right: "Clearly, having used that phrase for a personal right in the 1st Amendment, (collective) right just 16 words later in the 2nd Amendment -- and then revert to the personal rights meaning 46 words later in the 4th Amendment, and so on"

The Founding Fathers believed that only an armed citizenry could preserve free government. Such thinking was consistent with a political philosophy dating back to Aristotle, who said tyrants "mistrust the people, hence they deprive them of arms." The lesson was emphasized by the British attempt to confiscate the Patriots' arms at Lexington and Concord. As the Virginia patriot George Mason put it: "to disarm the people, that is the best and most effective way to enslave them."

The Founding Fathers' beliefs flowed from those of a British philosopher, John Locke, who felt that government will become ever more oppressive unless checked by fear of an armed people. Moreover, Locke argued that having an armed populace would actually avoid bloodshed. He said that a government unrestrained by fear of an armed populace would tend to tyrannize so that even an unarmed people would revolt. Then there would be a true blood bath, as occurred not long ago in Rumania. Locke and the founding Fathers believed an armed citizenry to be the first and foremost insurance against unendurable tyranny. To paraphrase Trenchard (a follower of Locke who was also much admired by the Founding Fathers), an armed people, like a strong man carrying a sword, will find the sword grows rusty in its sheath because it will never have to be drawn. Thus James Madison, author of the Second Amendment, tells us that tyranny would not occur here because of "the advantage of being armed, which the Americans possess over the people of almost every other nation."

Among the most important research in the 1980s was that of Professor Joyce Malcolm, a legal historian whose work on the English and American origins of the right to arms has been sponsored by the American Bar Foundation, Harvard Law School, and the National Endowment for the Humanities. Her research reveals how deeply l8th Century Englishmen and Americans cared about their legal right to arms. Blackstone (the l8th Century English authority on the common law, whose work forms the basis for much of American common law) held that there was an "absolute right of individuals" to possess arms.

The right is not outdated today. In fact, no 20th Century army has ever defeated a populace that had access to small arms. That's how, after all, nations such as Algeria, Angola, Ireland, Israel, Mozambique, and Zimbabwe came to be. That's why the USSR left Afghanistan, the U.S. left Viet Nam, and the French left Indochina, and why Chiang, Somoza, and Battista left China, Nicaragua, and Cuba, respectively.

For further evidence of the new recognition of the "individual rights" view of the Second Amendment, consider the turnabout by an eminent liberal constitutional theorist, Sanford Levinson. His recent Yale Law Journal article is titled The Embarrassing Second Amendment because he found it impossible to sustain his former belief that private gun ownership can be constitutionally prohibited and all guns confiscated.

Another eminent liberal is Michael Kinsley, former Editor-In-Chief of The New Republic (one of the nation's leading liberal publications), who moved down to the position of contributing editor in order to become the liberal commentator on the TV debate program Crossfire.Staunchly antigun, Kinsley is a member of Handgun Control, Inc. But in a recent nationally-syndicated article he admitted that the evidence demonstrates the individual right to have guns embodied in the Second Amendment. Quoting a New Republic colleague, Kinsley said: "If liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory" Nevertheless, Kinsley still dislikes guns and wishes the Constitution did not guarantee responsible adults the right to own them.

Professor Levinson has come considerably further. His Yale Law Journal article articulates not only his new recognition that the Second Amendment guarantees the individual's right to arms, but also that he now sees the importance of an armed people:

". . . it seems foolhardy to assume that the armed state will necessarily be benevolent. The American tradition is, for good or ill, based in large measure on a healthy mistrust of the state ... it is hard for me to see how one canargue that circumstances have so changed as to make mass disarmament constitutionally unproblematic ... a state facing a totally disarmed population is in a far better position, ... to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officers being injured or killed."

It is heartening to see so many liberal scholars honestly acknowledge what gun owners have long known about the Second Amendment. Now all that seems left is for the nation's media to follow suit.

By Peter Alan Kasler

97th Congress 2d Session

Let's take a look at what the Founding Fathers legislative history and the Intent of the 2nd Amendment.

H.R. Journal--FRIDAY, AUGUST 21, 1789

Journal of the House of Representatives of the United States, 1789-1873

FRIDAY, AUGUST 21, 1789

The House resumed the consideration of the amendments made by the Committee of the Whole House to the report from the committee of eleven, to whom it was referred to take the subject of amendments to the Constitution of the United States, generally, into their consideration; and, the said amendments being partly agreed to, and partly disagreed to,

The House proceeded to consider the original report of the committee of eleven, consisting of seventeen articles, as now amended; whereupon the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth articles being again read and debated, were, upon the question severally put thereupon, agreed to by the House, as follows, two-thirds of the members present concurring, to wit:

· 5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

On motion,

Ordered, That the farther consideration of amendments to the Constitution of the United States be postponed until to-morrow.

The orders of the day for the House to resolve itself into a Committee of the Whole House on the bill sent from the Senate, entitled "An act to establish the Judicial Courts of the United States;"

And then the House adjourned until to-morrow morning eleven o'clock.

Journal of the House of Representatives of the United States, 1789-1873

APPENDIX.

Ratification of the Constitution of the United States, by the State of North Carolina.

United States, January 11, 1790.

Gentlemen of the House of Representatives:

I have directed Mr. Lear, my private Secretary, to lay before you a copy of the adoption and ratification of the Constitution of the United States, by the State of North Carolina, together with a copy of a letter from his Excellency Samuel Johnston, President of the Convention of said State, to the President of the United States.

The originals of the papers which are herewith transmitted to you, will be lodged in the office of the Secretary of State.

G. WASHINGTON.

"Fayetteville, State of North Carolina, December 4, 1789.

"Sir: By order of the Convention of the People of this State, I have the honor to transmit to you the ratification and adoption of the Constitution of the United States by the said Convention, in behalf of the People.

Ratification of the Constitution by the Convention of the State of Rhode Island and Providence Plantations.

"We, the Delegates of the People of the State of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately considered the present situation of this State, do declare and make known:

· Seventeenth. That the People have a right to keep and hear arms; that a well regulated militia, including the body of the People capable of bearing arms, is the proper, natural, and safe defence of a free State; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates in such manner as the law directs. · Eighteenth. That any person religiously scrupulous of bearing arms, ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

Article the Fourth. 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.

Journal of the House of Representatives of the United States, 1789-1873

FRIDAY, AUGUST 21, 1789

In the House of Representatives,

January 18th, 1790.

The House took into consideration the report of the committee to whom was referred the resolution of the Congress of the United States, of the fourth day of March, one thousand seven hundred and eighty-nine, proposing Amendments to the Constitution of the United States, viz:

• Sec. 18. And be it further enacted, That inasmuch as the Constitution of United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. In all criminal prosecution the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favor, and to have the assistance of counsel for his defence. The privilege of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. No law shall be made or have force or effect in said Territory which shall require a test oath or oath to support any act of Congress or other legislative act as a qualification for any civil office or public trust, or for any employment or profession, or to serve as a juror or vote at an election, or which shall impose any tax upon or condition to the exercise of the right of suffrage by any qualified voter, or which shall restrain or prohibit the free discussion of any law or subject of legislation in the said Territory, or the free expression of opinion thereon by the people of said Territory.

INFRINGE

(a) --tr. 1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent. 2. Obsolete. To defeat; invalidate. --intr. To encroach on someone or something; engage in trespassing: to neglect to obey; as to infringe a law; an increased workload that infringed on his personal life. [Latin ºnfringere, to destroy : in-, intensive pref.; see IN-2 + frangere, to break; see bhreg- below.] --in?fring“er n.

What part of "INFRINGED" don't you understand?