How the Bush Justice Department Is Rewriting History to Satisfy the NRA





Mr. Cornell, a writer for the History News Service, is an associate professor of history and director of the Second Amendment Research Center at the John Glenn Institute, The Ohio State University. He is the author of the forthcoming book, 'Armed in the Holy Cause of Liberty:' Guns and the American Constitution.

The struggle over ownership of guns in the United States has taken a dramatic turn. In the midst of the winter holidays, when you could bet that everyone's mind was elsewhere, the U. S. Department of Justice decided to revise the Second Amendment.

This latest example of politically motivated historical revisionism completes the task begun by John Ashcroft in 2001 in his infamous letter to the National Rifle Association, which cast aside a hundred years of Justice Department policy on how to interpret the Second Amendment. Now the Department of Justice has produced a hundred-page  memo designed to give activist judges a historical pretext for striking down existing gun laws.

Ironically, rewriting the Bill Of Rights has been pawned off as nothing more than a return to the original understanding of the amendment. Yet this revisionist interpretation has nothing to do with the original understanding of the Second Amendment. The Second Amendment adopted more than two hundred years ago reads: "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 department's newly revised Second Amendment reads, in effect: The right of individuals to keep and carry guns shall not be infringed.

The Department of Justice has thus erased the preamble, which states the purpose of the amendment, to create a"well regulated Militia." The new version of the amendment crafted by the Department of Justice goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times. In effect, the Department of Justice believes that it can simply expunge language which it finds inconvenient and substitute language more ideologically suitable in its place.

The department's novel idea that the preamble of the Second Amendment has no binding force would have certainly shocked the Founders. The most popular legal dictionary used by the Framers of the Second Amendment describes the purpose of "The Preamble of a Statute" as  providing the"Key to the Knowledge of it" since it establishes"the Intent of the Makers of the Act."

Another bizarre claim made by Second Amendment revisionists is that the Framers of the amendment thought that bearing a gun and bearing arms were legally synonymous: hunting bears becomes the same as bearing arms. The illogic of the claim is easy to demonstrate. Quakers were religious pacifists opposed to war. Thus, a Quaker might bear a gun in pursuit of a deer, but he would never bear arms. To be conscientiously scrupulous about bearing a gun makes you a vegetarian, not a pacifist!

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have  never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution. Substituting the ideas of the losers for the winners turns history into a science fiction fantasy, in which one might as well argue that the Patriots lost the American Revolution, or the South won the Civil War.

For better or worse, the real Second Amendment links the right to bear arms with a well regulated militia. If Americans want to change this language it will have to be by the slow and uncertain process of amending the Constitution. Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.


This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.


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Tom Gunn - 2/10/2005

I once owned a security six. A great gun.

I'd like to still have it.


The gp 100 should serve you well and you are right about .38 for practice. Mil ball is resonably priced for practice and you can move to .357 silver tips or hyrdras for carry rounds. +P and +p+ in .38 is also an option. So many choices so little money ;-).

Second hand purchase at your friendly gun show lowers the price too.




tom gunn


Richard Henry Morgan - 2/10/2005

I was thinking of perhaps the GP 100 in 357, 4 in, with low glare stainless. I'm on the water in Florida, so stainless seems a nice idea. And I could do a quarterly refamiliarization in 38. Ruger makes a great piece at a good price. Thanks for steering me back to reason.


Tom Gunn - 2/10/2005

Richard,

I don't know about the HK, The Sig and Beretta are fine pistols. If I had plenty of money (which I don't) I'd have a Kimber in .45 cal.

Have you considered a revolver? I'm partial to Rugers esp in .357. For plinking I like the Super Single Six in .22

http://www.ruger-firearms.com/Firearms/FAProdView?model=626&;return=Y

or the Mark II

http://www.ruger-firearms.com/Firearms/FAProdView?model=154&;return=Y .


Tom gunn


Richard Henry Morgan - 2/10/2005

Good to hear from you, Tom. I screwed up the link, I see. Thanks for straightening that out.

Since he's an historian, I just hope that Cornell keeps to the original meaning (thugh he never seems to get around to adducing evidence for his "original understanding"), since he doesn't seem to understand the implications of granting standing to Miller. I do think he's right on the "bear arms" part. I don't think an individual right to "carry arms" is the best construction of the constitutional text. But I also think it's pretty clear that an individual right to "keep arms" can be related to a well-regulated militia. The NRA, I think, is standing on weak ground on the "carry arms" construction". Cornell, paradoxically, needs the NRA interpretation in order to dismiss an individual right.

Cornell only mentions the NRA once, and only in the body of the letter (with that tell-tale "infamous" before it). The title of the piece is grafted on by HNN (I imagine) as the title to the original piece at HNS doesn't mention the NRA.

As to the founders rejecting the fed power to arm the militia, that's a bit tricky. Certainly Madison, in the ratifying convention of Virginia, conceded that the power to arm is a concurrent power, belonging to state and the feds. Since that would only be implicit (and Henry pointted out the problems with that view -- the other parts of Article I, Section 8 would also be concurrent, creating chaos), the Second may be seen as an attempt to tidy that up, so that the fed gov couldn't (as you and the anti-federalists put it) disarm by failing to arm through the non-exercise of an exclusive power. Since the major thrust of the Federalist program was to strip the states of the marks of sovereignty (the power of the sword being one), it seems to me completely reasonable that the federalists would reside the protection against disarming in a private right to arm.

BTW, what pistol do you suggest I buy (before hypocritical Rosie's of the world make sure I can't)? I'm leaning toward a HK or a SIG, but I'll consider a Beretta.


Tom Gunn - 2/10/2005

The preface to the right gives a reason not the reason for the second and actually reitierates the right to belong to a militia by use of the word bear.

The people have the right to keep arms(for their reasons) and bear them in the militia.

The scotus agrees in Miller and gives specific protection to militia useful weapons, like assault rifles. Cornell will not likely be happy with the people toting fully automatic assault rifles like AK's and MP 5's.

Another point worth considering is this: Rights are being continually expanded and enlarged for the most part. Rather than limited and constrained. All except the second.

That is changing though as moore and moore states recognize the need for shall issue CCW licenses.


This might be a good place for a gun control debate to break out.





tom gunn


Thomas W Hagedorn - 2/10/2005

I think you have to look at how society in 1787 used guns. Professor Cornell has an example right in his own backyard - the Ohio Company in Marietta, Ohio, the first legal settlement in the west and a community created out of public lands sold by the Continental Congress in the momentous summer of 1787. Marietta was a very dangerous place in the next few years, due to Indian activity. You needed a gun at your side at all times, sort of like a convenience store clerk does today. Property owners had to supply an armed "militia" member (with his own gun) or lose title to their property! Given the exigencies of the day, in terms of the use of guns for personal defense and acquisition of game for food, it is hard for me to accept a meaning of the right to bear arms that is restricted to the militia. Why, I think they would have been "up in arms" over such a narrow definition. It never ceases to amaze me how politics can drive these constitutional interpretations. On abortion, some can see "penumbra's" that cast a shadow from the 14th ammendment, stretching the constitution well beyond the breaking point,yet in other areas, such as Prof. Cornell's, we can draw the most extreme, cramped interpretation of the founder's intentions.


Tom Gunn - 2/9/2005

Hello Richard!

So nice to touch base with HNN and find you still here with your clear concise writings.

This link may work better to the doc you ref.

http://www.usdoj.gov/olc/secondamendment2.htm

Interesting that Cornell complains the DOJ ignores the preamble clause while he himself ignores the right itself which is *what* is being protected. Humorous that he then lays it at the feet of the NRA.

Note also that Cornell alludes to *the* reason for the Second rather than *a* reason for the Second. The thrust being obvious, for a superfluous Militia leads to a superfluous Second.

The founders discussed and rejected the power of the fed to arm the militia for by their reasoning the power to arm suppooses a power to disarm.


Really great to read you again Richard.






tg




Richard Henry Morgan - 2/9/2005

Your point makes more clear what I was only struggling to say. The current US code makes a distinction not contemplated by the Framers, nor included nor implied by the Constitution -- a distinction between organized and unorganized militia. The organized militia (the National Guard essentially) is not, as I understand it, created or funded under the militia power of the Constitution, but the military power. There is nothing, as far as I can tell, in the Constitution that empowers the government to create the distinction between organized and unorganized, and to create and fund the organized militia under the military power, rather than by reference to the power derived from the militia clause.


John H. Lederer - 2/8/2005


I have not researched the legislative history, but the federal statutory lanaguage seems to speak of something beyond the guard (note the distinction between "organized" and "unorganized"):


10. U.S.C,§ 311. Militia: composition and classes



(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


I have a vague impression that our present national Guard system was organized around the time of the Spanish-American War, but my knowledge is weak.


Richard Henry Morgan - 2/8/2005

I agree with you about intent and ambiguity and construction. I also remember Paul Begala, of CNN and a UT Law graduate, on Crossfire offering the view that the expansive language of the Constitution's preamble ("promote the general welfare") empowered the federal government to go beyond the limited powers granted them by the Constitution. Unbelievable.


Richard Henry Morgan - 2/8/2005

My only quibble is that the militia being defined by statute does not trump the constitutional meaning of 'militia' -- whatever that may be. Some have argued that Madison and Hamilton, in the Federalist papers, argued for conflicting conceptions of the militia, and that the Framers deliberately made the militia of the Constitution unspecified so as to leave it to later statutory definition. This is asserted, but no evidence is ever adduced for the proposition. Certainly there is no canon of constitutional construction that says that constitutional language is suseptible to statutory definition.

Moreover, the federal statutory definition of the militia is for purposes of the National Guard, which legislation is promulgated under the military power of the Constitution, and not the militia clause (Article 1, Section 8). Even some opponents of the individualist interpretation concede that (Merkl, et al) the National Guard is not the militia.

Some states have reproduced the language of the federal statutes concerning the definition of the militia. Consider, however, the California codes. They include militia exemptions not included in federal statutes. This is a point of some contention. When Rufus King was asked to clarify the militia clause, he told the Convention that the federal power to organize the militia extended only to deciding what portion would be officers, and what portion enlisted. Even though the Militia Act of 1792 included a broad definition (as have all subsequent militia acts), both the representations of King to the Convention (and some subsequent Congressional debaters) and the subsequent record of the states (and the failure of the feds to challenge that law and practice) suggests that membership in the miltia was left up to the discretion of the states.


John H. Lederer - 2/8/2005

It is worth noting that "militia" is defined by statute.

The federally defined militia consists of all able bodied males between 17 and 45 and females in the national guard or reserve. I assume that the younger members of this forum are ready to be called out to repel invasion or suppress insurrection?

Many states have a "organized militia" (often defined as the national guard) and an "unorganized militia" ( usually defined somewhat like the federal definition).

Thus saying that the 2nd amendment applies only to members of the militia has little immediate practical meaning (I don't think the male/female distinction would hold up to a challenge). It would, however, make a constitutional right subservient to legislative definitions.

Worth noting also is the phrase "well regulated". At the time period in question "regulated" in reference to soldiers meant disciplined or drilled, and particulalry, drilled in marching and the manual of arms (the sequence of steps to load, shoulder, and fire a firearm, see. http://www.doublegv.com/ggv/battles/Manual.html ).

This was not a small matter. Descriptions of the First Battle of Bull Run describe the launch of numerous ramrods which soldiers had failed to remove from their rifles before firing thereby rendering their firearm unusable after the first shot. General Bee was killed by a ramrod so shot. Flintlocks were substantialy more complex to operate than the percussion rifles of the civil war.

It is useful to analyze the meaning of the second amendment by using the same phraseology in a different context.

"A well educated electorate, being necessary to the security of a free state, the right of the people to keep and carry books shall not be infringed."

Few would argue that the right is limited to the well educated. Indeed, most would suggest that the right to books would have as one of its effects, a well educated electorate.

Similarly, one can suggest that, to the framers, the right of the people to keep and bear arms would have, as one of its effects, a well regulated militia.

The preamble thus becomes not a reason for creating the right -- such "creation" would be antithetical to the framers understanding of where rights came from-- but rather a reason for not allowing the government to encroach on the pre-existing right by the powers granted it elsewhere in the Constitution.






John H. Lederer - 2/8/2005

The rule of construction I was taught was that the intent of the lawmaker was irrelevant, unless the operative language was ambiguous on its face -- but that rule has rather frequently been violated of late.

Note that reading a preamble to modify the language is a very dangerous excercise in regard to the constitution. After all, the constiutution has a preamble.

Would we allow free speech only when it acts to "insure domestic tranquility"?

Would we wish to supercede congress' power to control the purse when it doesn't adequately "provide for the common defence"?


Richard Henry Morgan - 2/8/2005

First, it should be noted (as Cornell does not make clear), Ashcroft's 2001 memo was produced only after the Emerson decision came down, the Emerson decision establishing a conflict within the circuits.

Secondly, it should be pointed out that the Miller decision does not endorse any one view of the right. It doesn't even rule that a sawed-off shotgun is not a militia weapon. The case came to the Supreme Court on demurrer -- Miller questioned the basis for the indictment, and that went to the Supreme Court before any evidence was taken. The Court therefore says it won't decide that issue in the absence of evidence, and won't decide that question by judicial notice.

Thirdly, the DOJ memo (which dates from August 2004)makes the point which is also made in Judge Kosinski's dissent to the en banc decision of the 9th in Silveira v. Lockyer. By addressing a question of substance, the SC (it has been argued) granted standing to Miller as an individual, which rules out the strictly collective rights interpretation. So while Miller nowhere explicitly endorses any one view of the right, by granting standing to Miller, it ruled out the strictly collective rights interpretation.

The DOJ memo is, in fact, a lot better than I would have thought. It is certainly better than most of the law review articles written on the subject. I suggest that anyone interested in the issues here actually read the memo for themselves, and not take any one person's characterization of it uncritically. Here it is:

http://www.usdoj/gov/olc/secondamendment2.htm

One advantage of the DOJ memo is that it actually gets Madison's proposal to Congress correctly. This can't be said of Garry Wiils' version in his NYRB article and in his book A Necessary Evil (the former is reproduced, without comment on the mistake, in Cornell's previous book on the Second Amendment). The effect of the change is to allow Wills to throw 'keep' into a purely militia context, when in fact the discussion of conscientious objection is just an elaboration of the militia clause, rather than directly or closely linked to the rights clause. Wills furthers that move by grafting 'keep', from 'keep up a standing army', to 'arms' in a central storage by tying it to a truncated quote from Trenchard for proposed law changes. This, the thin reed from what Wills characterizes as a "vast literature" on militias -- in other words, he can't find one single use of the combined expression before the constitutions of the revolutionary states. From there, the bit is taken in the mouth, and Bogus and others run with it, elevating 'keep and bear arms' to a term of art.

In fairness to Cornell, in his previous book he does ask whether Wills' excursions into etymology should control. Unrealized is the fact that the etymology is hopelessly wrong.

We are only now at beginning stages of mature, serious scholarship on the Second. When compared to the careful attentions lavished on the Biblical scripture, Second Amendment scholarship pales badly.


Richard Henry Morgan - 2/8/2005

I would simply add that Cornell cites a legal dictionary account of 'preamble' in a statutory context in support of a bit of constitutional interpretation. The canon of construction for statutory and constitutional law often depart ways.

A preamble can, where clarity does not obtain, be used to help interpret the operative portion. A preamble usually states the purposes one hopes to obtain by the operative language. That clearly involves intent. But intent lies at the heart of a speech act theory of meaning -- there is intent that lies outside the preamble, and lies within the meaning of the operative language itself. What happens when they fail to dovetail?

Consider this example:

"The moon being composed of cheese, and the greatness of any nation being determined by its command over stores of cheese, NASA is hereby authorized to spend $5 billion to send men to the Moon in order to explore it."

Now, the legal "meaning" of the text is an authorization to spend in pursuit of exploration of the Moon. The authorization does not depend on the Moon in fact being composed of cheese. The purpose of this is also a matter of intent -- the purpose is to secure cheese for the US (cheese being the basis of national greatness). In what sense is the (one would hope problematical) cheese thesis "binding" (in a legal but non-cheese way) on the authorization? The authorization is for exploration of the Moon, not exploration of cheese, though the ultimate purpose is to gain cheese.

I offer this as only an illustration of some of the problems of reading the preamble into the operative language. I don't wish to suggest that the precise situation obtains in this case. Clearly, it is possible to advance the functioning of a militia, particualrly where the government chronically fell short in arming the militia, if the people (on an individual basis) have a right to keep arms.


Richard Henry Morgan - 2/8/2005

The original conception of the militia goes back at least as far as ancient Rome. For the Romans, military service was a prequisite for citizenship. Therefore, by definition, the Roman citizenry was a people armed.

But in, say, early modern England, the militia tended towards a "select" one -- rather than enrolling and drilling the entire citizenry in the militia, only a portion was selected for militia service, whether by religious orientation, wealth, political loyalty (one of the problems with the general militia, from the ruler's point of view, was that it often took on the properties of a democratic body, and refused to forward the imperial ambitions of the ruler, and there being no overwhelming standing army to keep them "in line" ...).

Some of the anti-Federalists were much concerned with the possibilities of a select militia, perhaps chosen along Federalist lines. The Constitution didn't address the type of militia, but the Second might be a bulwark against a select, guaranteeing that nobody could be excluded, while not demanding that everyone serve.


John H. Lederer - 2/8/2005

"Cornell is on better ground in the "bear arms" controversy. It would seem that the best possible interpretation of that expression of a right (from the individualist perspective), is that it functions as a guarantee against a select militia."

Would you expand this for those of us a bit slow? I am not quite sure what you mean by a "select" militia.


John H. Lederer - 2/8/2005

"Cornell is on better ground in the "bear arms" controversy. It would seem that the best possible interpretation of that expression of a right (from the individualist perspective), is that it functions as a guarantee against a select militia."

Would you expand this for those of us a bit slow? I am not quite sure what you mean by a "select" militia.


Bill Heuisler - 2/8/2005

In his haste to enshrine a preamble as the heart of the Second Amendment in the Bill of Rights Professor Cornell apparently forgot another preamble that came first. The preamble to the 1789 Convention stated the purpose of the whole Bill of Rights was to prevent abuse of govermental power.

The preamble to the 1789 convention that created our Bill of Rights states in part, "...in order to prevent misconstruction or abuse of its powers that further declaratory and restrictive clauses should be added:..." All ten of the Amendments set forth rights of people in their dealings with government. None of the ten could logically be construed in this context as giving rights or extending the powers of government, could they?

Professor Cornell says the purpose of the amendment, to create a "well regulated Militia." has been set aside by the Bush Justice Department. This is obviously wrong because the power to create and regulate a militia is in Artical 1 of the Constitution itself. Why would the States and the founders want to repeat this empowerment during the creation of ten Amendments to limit State power? If this were so, the Second Amendment would stand alone as the only action taken on March 4th, 1789 that made the rights of people subject to a State action.

The Founders obviously made the Second Amendment second only to the First because they realized the importance of an armed citizenry to the retention of all the other rights. They most assuredly were not concerned about creating another (redundant) government prerogative.
Bill Heuisler


AJ Philips - 2/7/2005

I think Prof. Cornell's discussion is superfluous. The Ninth Amendment says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I still have the right to keep and bear "guns" so that I may be, for example (but not limited to) "secure in my person, papers, house, and effects". (Unless the ninth is going to be twisted by Case Law to mean something else).

I see the Constitution and the Bill of rights as being about restrictions on Government.

However, does it really matter? The NAS panel estimated that there were ca. 258 million privately owned guns in the U.S. in 1999. Some estimates put the growth rate at 2% per year.


AJ Philips - 2/7/2005

I think Prof. Cornell's discussion is superfluous. The Ninth Amendment says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I still have the right to keep and bear "guns" so that I may be, for example (but not limited to) "secure in my person, papers, house, and effects". (Unless the ninth is going to be twisted by Case Law to mean something else).

I see the Constitution and the Bill of rights as being about restrictions on Government.

However, does it really matter? The NAS panel estimated that there were ca. 258 million privately owned guns in the U.S. in 1999. Some estimates put the growth rate at 2% per year.


Richard Henry Morgan - 2/7/2005

Prof. Cornell offers that the Ashcroft Department of Justice "decided to revise the Second Amendment". He then goes on to claim 100 years of Department policy were cast aside.

This rhetoric obscures the fact that not all federal circuits agree on a single interpretation, and the US Supreme Court has yet to revisit the issue since its ambiguous Miller ruling of 1939 -- sufficiently ambiguous to lead to a conflict of circuits (until recently, even the 9th circuit affirmed the ambiguity of the Miller decision). What is clear is that Department of Justice policy doesn't determine the meaning of the Second Amendment, nor any other constitutional text.

Nor does the Second Amendment, as Cornell would have it, have as its purpose to "create" a "well-regulated militia". Article I, Section 8, gives the federal government the legislative authority to provide for (make legal provision for) organizing, arming, and disciplining the militia, and for governing such part as may be in federal service.

As a matter of law, preambles can be used to interpret the operative language that follows, but they are not in any sense "binding". As a marker for intent, by outlining the purposes one hopes to achieve by the operative language, preambles can be helpful in unpacking ambiguous operative language, but only one hard and fast rule of interpretation for preambles holds -- they do not extend the scope of the operative language.

That said, the preamble does not "create" a militia, but states a justifying purpose for the operative language of the amendment. As Miller put it, the right (whatever it is) must be in some sense reasonably related to the efficient operation of the militia. Can an individual right be reasonably related to the efficient operation of an admittedly and historically underarmed militia? Of course it can. Must it be an individual right in order to do so? No.

Cornell is on better ground in the "bear arms" controversy. It would seem that the best possible interpretation of that expression of a right (from the individualist perspective), is that it functions as a guarantee against a select militia.

Troubling is Cornell's invocation of an "original understanding", which is nowhere supported by evidence cited. There were only two contemporary commentators on the proposed changes that led to a final version of the Second Amendment (or the Second Amendment itself). They were Tench Coxe and Sen. William Grayson of Virginia. And they both interpreted Madison's original proposal as an individual right.


John Snow - 2/7/2005

Your call for a reasoned discussion is appropriate, but it may not be of much use in this case.

Every nation has its blind spots, areas of life where it is just not in contact with any kind of reasoned reality and so goes crazy. My nation (Australia) has a few beauties.

And speaking for the rest of the world (sorry, I am not at liberty to disclose how I obtained that authority), for Americans the big one is clearly guns.


James Spence - 2/7/2005

I agree. This seems what Thomas E. Wood’s "Politically Incorrect Guide to American History’ and his association to The League of the South, has in mind, more or less.


Michael Beatty - 2/7/2005

I like Professor Cornell's observation that "Substituting the ideas of the losers for the winners turns history into a science fiction fantasy, in which one might as well argue that . . . the South won the Civil War." In many parts of the old Confederate States of America, there still exists the firm belief that the South DID win the war but lost the peace, or that the period 1865-present is nothing but an interbellum, a la 1918-1939, after which "the South shall rise again," albeit not necessarily by another armed insurrection.

That is to say, science-fiction (of a socially-palatable sort; none of this Star Trek foolishness) IS the reality that permeates the Old South and is just waiting for its time to blaze forth again.


Dick Johnson - 2/7/2005

Keep in mind that the Bill of Rights was added to provide clarity to the restrictions on government contained in the Constitution. Whichever way you define "Militia" or "Arms" doesn't really matter. The right of individuals to carry weapons for self-defence is implicit in the right to Life. If you are not allowed to protect your own life (and, by extension, property) then your right to life is being abridged.
---
Gun Control: The theory that a woman found dead in an alley, raped and strangled with her panty hose, is somehow morally superior to a woman explaining to police how her attacker got that fatal bullet wound. - L. Neil Smith


John Reed Tarver - 2/7/2005

So, Little Jamie Madison muddled the 2nd amendment; what else is new about the constitution? Obviously, Madison's contemporaries worried about the power of government, as arbitrary governments had done since time immemorial, to deny the mass of the people the tools (arms) with which to resist arbitrary government. Also, just as obviously, the people of Madison's time saw scant difference between military weapons and fowling pieces, between swords and hunting knives. Since adoption of the 2nd amendment, American governments at all levels have tried to evade the clear intention of the constitution - no Saturday-night specials, no switch blades, no concealed weapons. The debate should limit itself to the degree to which today's citizen may resist arbitrary government, not all this wrangling about Mr. Madison's intentions. (Incidentally, I am not a member of the NRA.)


John H. Lederer - 2/7/2005

"Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution. Substituting the ideas of the losers for the winners turns history into a science fiction fantasy, in which one might as well argue that the Patriots lost the American Revolution, or the South won the Civil War."
==========================
This statement is not a fair summary of the other side's argument-- indeed it elevates to "the only evidence" what most regard as simply a single addition to the body of evidence, referred to in Emerson as collateral evidence by the phrase "..we also note.." .

From Emerson (footnotes are presented better in the linked version above):
=======================
Proponents of the states' rights and sophisticated collective rights models argue that the phrase "bear arms" only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that "bear arms" refers to any carrying of weapons, whether by a soldier or a civilian. There is no question that the phrase "bear arms" may be used to refer to the carrying of arms by a soldier or militiaman. The issue is whether "bear arms" was also commonly used to refer to the carrying of arms by a civilian.

The best evidence that "bear arms" was primarily used to refer to military situations comes from Aymette v. State, 2 Humph., Tenn. 154 (1840), a prosecution for carrying a concealed bowie knife. The Supreme Court of Tennessee, in construing section 26 of its declaration of rights, providing that "the free white men of this State have a right to keep and bear arms for their common defence," stated:

"The 28th section of our bill of rights provides 'that no citizen of this State shall be compelled to bear arms provided he will pay an equivalent, to be ascertained by law.' Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same way in the 26th section, which secures to the citizen the right to bear arms. A man in pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms . . . ."

Unlike the Tennessee constitution at issue in Aymette, the Second Amendment has no "for their common defence" language and the United States Constitution contains no provision comparable to section 28 of the Tennessee constitution on which the Aymette court relied.

Amici supporting the government also cite other examples of state constitutional provisions allowing a conscientious objector to be excused from the duty of bearing arms if he pays an equivalent so that another can serve in his place.(28)

However, there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.(29) And such provisions were enforced on the basis that the right to bear arms was not restricted to bearing arms during actual military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).

We also note that a minority of the delegates to the Pennsylvania ratification convention proposed the following amendment to the Constitution:

"That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers."

2 Documentary History of the Ratification of the Constitution 623-24 (Merill Jensen ed., 1976). This is yet another example of "bear arms" being used to refer to the carrying of arms by civilians for non-military purposes. Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty." 2 The Papers of Thomas Jefferson 443-44 (J.P. Boyd, ed. 1950). A similar indication that "bear arms" was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster's American Dictionary of the English Language; where the third definition of bear reads: "[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat."

We conclude that the phrase "bear arms" refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which "bear arms" appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that "bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected.(30) The appearance of "bear Arms" in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, "the people," and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of "bear arms" as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz:


John H. Lederer - 2/7/2005

The way that one conducts a reasoned discussion is to consider the serious arguments for and against a position. One advances one's position by showing why the arguments supporting the other side are fallacious, do not apply, or are otherwise without force.

Merely reciting a few of one side's arguments as this author does while pretending that those on the other side do not exist is unlikely to advance a discussion.

A fairly complete discussion of the second amendment is here: http://laws.lp.findlaw.com/5th/9910331cr0.html (scroll down to see case, the 2nd Amendment discussion starts at Section V, about one fifth of the way down the scroll)

The Fifth Circuit concluded that there was an individual right to keep and bear arms (though the proponent of the argument lost his case). One can come down on the other side of the argument, and the Fifth Ciruit is not the be all and end all of the issue, but the Fifth Circuit opinion provides a fairly oragnized discussion of the issues, arguments, and the history of the amendment. It is a good starting point for a reasoned discussion.



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