SCHOLARSHIP ON SECOND AMENDMENT RIGHT TO ARMS
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The Oct., 1999 History Book Club book reviews contained a review of a new book, ORIGINS OF THE BILL OF RIGHTS, whose author, Leonard W. Levy, Mellon Professor Emeritus at Claremont Graduate School, the reviewer, rightly calls "the acknowledged dean of American constitutional historians." The reviewer is himself a distinguished authority in the field, Prof. Lucas A. ("Scot") Powe, Jr., holder of the Anne Green Regents Chair in Constitutional Law at the University of Texas. Almost half the review is devoted to Levy's treatment of the constitutional right to arms which Powe deems the "Last Word on the Second Amendment." Both Powe and Levy are ardent liberal Democrats, and neither have any affection for guns and their owners. Nonetheless Powe offers the following assessment of the subject, praising Levy for a candid, magisterial treatment of a right he would never himself exercise:
"A trait that no one can miss in Levy is rock-ribbed intellectual integrity. He simply will not shade his scholarship to match his preconceptions or politics. The [book's] chapter on the Second Amendment perfectly illustrates this. A widespread position [which Levy would doubtless have preferred to endorse], held with religious fervor by many, especially in the media, is that because of [the militia clause with which the Amendment begins] the amendment guarantees only a "collective right" to have guns. Under this view guns are available only when a person is in the militia (or police or military). Those holding this view believe that those claiming the Second Amendment protects any individual right to own guns are dead wrong. It may come as a surprise that all serious constitutional law scholarship over the past decade has shown the "collective right" position to be historically bogus. Still, none of the authors of this scholarship enjoys Levy's stature [as a preeminent authority in the history of the Constitution]. Further, Levy had never before touched the Second Amendment and has previously come up with unique and unsettling conclusions (especially with regard to freedom of the press). With ORIGINS OF THE BILL OF RIGHTS he adds his name and credentials to the scholarship showing that the framers of the Bill of Rights intended to guarantee an individual right to possess weapons. Of course, it is not an unlimited right. As Levy notes, "Regulations may specify the kind of weapons that are lawful and the conditions under which these weapons may be kept; but no regulation may subvert the right itself."
Compare: Don B. Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment" 82 MICHIGAN LAW REVIEW 203, 258-67 (1983) suggesting that the Amendment: applies only to small arms, not cannon, war planes, war ships or machine guns or firearms too shoddy to meet military or police procurement standards; does not guarantee any right to felons, children and the mentally unsound; and allows registration and licensing requirements as to firearms and their owners, with the following provisos -- since the Amendment deems the widespread possession of firearms not just an individual right but a benefit to society as a whole, all costs of registration and licensing must be borne by the government, there is no discretion to deny a license to a law abiding, responsible adult applicant, and licensing decisions may not be unreasonably delayed.
In the 1980s Akhil Amar, who teaches constitutional law at Yale, began his work on a bicentenniel article on the Bill of Rights with the preconception of the Second Amendment as states' right rather than individual right. Consideration of the text and legislative history, however, drove Professor Amar ineluctably to conclude that the "right to keep and bear arms belongs to "the people," not "the states." [And that] "the people at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens.
--Amar, The Bill of Rights As a Constitution, 100 YALE L. J. 1131, 1166 (1991).
As to the idea that the right to arms belongs to the states not individuals, Prof. Amar writes that the Second Amendments guarantees the right to arms to "the people", not "the states": "[W]hen the Constitution means "states" it says so... The ultimate right to keep and bear arms belongs to "the people," not the "states."... "Thus the 'people' at the core of the Second Amendment [a]re [the] Citizens -- the same 'We the People' who[m the Preamble states] "ordain and establish" the Constitution and whose right to assemble ... [is] at the core of the First Amendment.... Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but [when the 2nd Amendment was written]... "the militia" referred to all Citizens capable of bearing arms. [So] "the militia" is identical to "the people" ...."
Harvard Law Professor Alan Dershowitz proclaims that he "hates" guns, and wishes to see the Second Amendment repealed. Nevertheless Dershowitz, a former ACLU national board member, reproves "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard. They don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
Quoted in Dan Gifford, "The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason," 62 TENN. L. REV. 759, 789 (1995).
Professor Powe's colleague in constitutional law at the University of Texas is Sanford Levinson, another ardent Democrat who has never owned a firearm and never would do so. Nevertheless, in a pioneering YALE LAW JOURNAL article, "The Embarrassing Second Amendment", he not only accepts that the Amendment is an individual right, but also arraigns academia and the legal profession generally, for ignoring the Amendment out of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning" interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
Levinson, "The Embarrassing Second Amendment", 99 YALE L. J. 637, 642 (1989).
A few pages later (at 657) he declares "It is simply silly to respond [to the value of an armed citizenry] that small arms are irrelevant against nuclear-armed states: Witness contemporary Northern Ireland and the territories occupied by Israel, where the sophisticated weaponry of Great Britain and Israel have proved almost beside the point. The fact that these may not be pleasant examples does not affect the principal point, that a state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being killed or injured."
Nicholas J. Johnson, a liberal black professor at Fordham U. Law School has focussed on the pragmatic implications of the anti-gun goal of a world in which the general populace is disarmed, helpless and wholly dependent on the police and the military who alone may have firearms: "The situation would be much like telling a climber that all ropes will be collectively controlled. If he begins to fall, then he need only call and an agent of the government will be dispatched to bring the rope that will prevent his injury or death. Unfortunately, once the need for the resource arises, assistance will in many instances be too late. Taking the analogy further to incorporate the additional problem of limited resources by assuming that there are at any one time one hundred actual climbers, thousands of potential climbers and only five rope administrators, together with the acute nature of the need, we should question the wisdom of the decision which prohibited self- help and individual ownership of ropes.
[Johnson NJ. þ Beyond the Second Amendment: An Individual Right to Arms Viewed through the Ninth Amendment. þ Rutgers Law Journal. Fall 1992; 24 (1): 1-81.]
He adds that it is difficult to justify permitting government agents, whom we ideally characterize as servants, to enjoy a level of security, provided in part by firearms, unavailable to the general population. Such a result leads to the conclusion that those in positions of power in government are distinct from servants whose lives are somehow worth more than the lives of citizens.
It then follows that our constitutional system is designed to tolerate a tier of elite whose interest in personal security exceeds that of citizens merely because of their positions in government.
Our constitutional tradition, based on the concepts of limited government serving the citizenry and legitimate fear of the power vested in government, seems at odds with such conclusions. [Ibid.]
Despite disagreement on other subjects, one thing on which all the Founders concurred was the paramount importance of the right to arms -- Richard Henry Lee: "to preserve liberty, it is essential that the whole body of the people always possess arms...." Patrick Henry: "The great object is that every man be armed ... everyone who is able may have a gun." James Madison, author of the Second Amendment, assured his fellow-countrymen that a free people need not fear government "because of the advantage of being armed, which the Americans possess over the people of almost every other nation." The greatest of them all, Thomas Jefferson, expressed his belief that the possession of arms is the foundation of the moral character necessary to a free people in a letter to his 15 year old nephew: "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the companion of your walks."
[All quoted in Kates, supra, 82 MICHIGAN LAW REVIEW at 221- 2 and 228-9.]
The single most important contribution to the history of the constitutional right to arms was made by historian Joyce Lee Malcolm in her TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO- AMERICAN RIGHT (Harvard University Press, 1994). Professor Malcolm writes: "The Second Amendment was meant to accomplish two distinct goals.... First, it was meant to guarantee the individual's right to have arms for self-defense and self-preservation... These privately owned arms were meant to serve a larger purpose [militia service] as well .... and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public ... the militia [being] ... the body of the people... The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation." (Pp. 162-3.)
She adds that "Renaissance theorists as dissimilar as Nicholas Macchiavelli and Sir Thomas Moore, Thomas Hobbes and James Harrington [shared] a consensus that only men willing and able to defend themselves could possibly preserve their liberties [and that] the theme of arms possession as both the hallmark and the ultimate guarantee of personal liberty appears equally in the writings of Cicero, Locke, Trenchard, Rousseau..."
To the same effect, historian Robert Shalhope writes "When James Madison and his colleagues drafted the Bill of Rights they... firmly believed in two distinct principles: (1) Individuals had the right to possess arms to defend themselves and their property; and (2) states retained the right to maintain militias composed of these individually armed citizens... [Likewise, in enacting the Amendments] ... congressmen firmly believed in the right of individual citizens to possess arms.... Clearly, these men believed that the perpetuation of a republican spirit and character in their society depended upon the freeman's possession of arms as well as his ability and willingness to defend both himself and his society." --- "The Armed Citizen in the Early Republic," 49 LAW & CONTEMPORARY PROBLEMS 125 (1986).
Duke Law School's William Van Alstyne, another former ACLU national board member, is recommended in polls of judges and law professors as an outstanding prospect for appointment to the Supreme Court. He writes that people who are serious about civil liberties "begin with a constitutional understanding that declines to trivialize the Second Amendment" as a mere states' right, "just as they decline likewise to trivialize any other right" guaranteed to the people by the Constitution. Evaluating the historical evidence Professor Van Alstyne continues "In recent years it has been suggested that the Second Amendment protects the 'collective right' of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."
Prof. Van Alstyne rejects the claim that the Second Amendment "does not extend to handguns ... [as] wholly inconsistent with any sensible understanding of a meaningful right to keep arms as a personal right." And he concludes with what is, from a liberal academic, a stunning tribute: "Nor, finally, is the NRA to be faulted for [taking the Second Amendment seriously] when others tend now to look away. [Our] stance here is no more and no less than one might take equally in response to proposed regulations of any other matter enumerated in the Bill of Rights, whether it affects one's freedom of speech or the right to keep and bear arms. This stance, with its presumption that any infringement of the right to keep and bear arms [is invalid] is not a presumption the NRA invented. Rather, it is simply a presumption (so far as one thus chooses to describe it) enacted by the Constitution itself." William Van Alstyne, "The Second Amendment and the Personal Right to Arms", 43 DUKE L. J. 1236 (1994).