The 2nd Amendment and the Future of Gun Control

[gunsmith]

http://www.hlrecord.org/media/stora...t.And.The.Future.Of.Gun.Control-3015466.shtml

Second Amendment interpretation and the future of gun control laws in America were the focus of a September 27th debate between Harvard Law Professor Mark Tushnet and Clark Neily, a senior attorney at the Institute for Justice. The event, sponsored by the Harvard Federalist Society, came in response to the expected certiorari grant for Parker v. District of Columbia- the March case where the U.S. Court of Appeals for the D.C. Circuit struck down Washington D.C.'s controversial gun ban.

Neily, who served as co-counsel for the plaintiffs challenging the ban, explained that while some view the Second Amendment as a "collective right," the view that the Second Amendment protects a right of individuals to own guns is likely to prevail. He explained that most legal scholars on the subject support the individual rights theory, and that efforts to advocate the "collective rights" theory appear hypocritical.

"There has been a remarkable diversion to individual rights theory by professors, even liberal ones," Neily said. "Guns are not a big part of my life, but it bothers me when an entire part of the Constitution can be written out when you apply a constitutional theory that liberals would never apply to a right they actually care about. If you imagine the right at stake is one you care about a lot. I think you'll be offended to see a court take it as lightly as they take the Second Amendment."
However, Tushnet explained that there is support for the collective rights theory in the wording of the Constitution. The "militia," he said, could likely be referring to the National Guard.

"The primary but not insurmountable difficulty with the individual rights theory is the preamble phrase in the Second Amendment mentioning the well-regulated militia." Tushnet said. "There are two other references to the militia in the original Constitution which clearly refer to the state-organized militia, so natural reading would be to say that the term "militia" in the second amendment also refers to the state-organized militia. The gun-control argument is that the preamble in the Second Amendment is a condition on the right. It identifies the contours of the operative portion of the second clause."

According to Neily, even a reading permitting gun ownership for militia purposes would not prevent citizens from owning guns due to the true definition of a well-organized militia. Rather than interpreting the "militia" to refer to the National Guard, a concept the federalists would have hated since it would have looked "too much like a standing army," Neily interprets the use of the word "militia" to refer to the unorganized militia.

"All able-bodied men from 17 to 44 are in the unorganized militia, and that's exactly what was meant in 1792," Neily said. "They actually called out the unorganized militia during World War II. When the unorganized militia is called, you're supposed to bring your own gun. You're actually required to bring your own gun. That's what the word well-regulated meant."

In addition to discussing the Constitutional theories behind the amendment, the speakers addressed what Tushnet described as the "bazooka problem"- the questionable usefulness of a privately-owned firearm in protecting against an oppressive government with large-scale superior weapons not contemplated at the drafting of the Second Amendment.

Tushnet explained this problem by discussing the two primary purposes people see in the Second Amendment-- self-defense and protection from tyrannical government.

"If we're talking about self-defense, handguns work for that," Tushnet said. "The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the "bazooka problem" really is a serious problem. If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."

Although this will be one of the few cases on record concerning the Second Amendment, Neily said he is optimistic that the individual rights theory will prevail if Parker v. District of Columbia is granted certiorari, as the quality of reasoning from lower-court opinions supporting that theory has been far superior to court reasoning which attempts to justify the collective rights approach. While this case may be paramount for determining which theory the Supreme Court will use, Neily said the ruling probably won't affect most gun control laws in the country.

"Most gun laws on the books are constitutional within any reasonable explanation the Supreme Court is likely to give," Neily said. "There may be a lot of cases filed, but I don't think many laws will be struck down."
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Viewing Comments 1 - 3 of 3

Alec Dawson
posted 10/05/07 @ 4:07 PM EST

Amen to most of it. Just a few thoughts...

#1 The "bazooka problem" is irrelevant to the Parker case. Just because handguns don't serve out the whole purpose of the 2nd Amendment doesn't mean they should be banned. (Continued…)
Details Reply to this comment
James Mullen
posted 10/05/07 @ 5:05 PM EST

Tushnet stated: "There are two other references to the militia in the original Constitution which clearly refer to the state-organized militia, so natural reading would be to say that the term "militia" in the second amendment also refers to the state-organized militia. (Continued…)
Details Reply to this comment
Christopher Johnson
posted 10/06/07 @ 8:09 AM EST

If handguns were insufficient against tyranny and it's agents then the most repressive regimes in the world wouldn't restrict their ownership.
Of course our most repressive regimes, right or left prohibit handguns. (Continued…)

 

[jazurell]

Tushnet should view "In Search of the Second Amendment"
http://www.secondamendmentdocumentary.com/
as should any gun owner. It should be required viewing by all in sixth grade civics class.

 

[Standing Wolf]

"If we're talking about self-defense, handguns work for that," Tushnet said. "The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the "bazooka problem" really is a serious problem. If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."

What a dunce! Suppose, for a moment, the plot against Hitler's life had succeeded. Suppose, for another, Lenin had died not of syphillis, but a bullet in 1916. Suppose...

 

[Art Eatman]

Suppose we stick to the legal issues and not go wandering off into political philosophy.



Art

 

[mek42]

When the unorganized militia is called, you're supposed to bring your own gun.

So I am required to go purchase a select-fire M16, being an able-bodied male of 30-something age?

 

[IA_farmboy]

When the unorganized militia is called, you're supposed to bring your own gun.

So I am required to go purchase a select-fire M16, being an able-bodied male of 30-something age?

Oh darn, I was going to buy a new computer. I guess I'll have to put that off to get my machine gun.

I wouldn't want to be ill equipped if called into service of the militia, now would I?

 

[Robert Hairless]

I don't know if one could credit the concept of the "unorganized militia" directly but in the Spanish-American War, World War I, and World War II this country benefitted from the easy familiarity with firearms that many recruits brought to their service.

Notable heroes--real heroes--were Alvin York in WWI and Audie Murphy in WWII. A generation apart, York from Tennessee and Murphy from Texas contributed the heritage of an America in which the rural poor hunted protein for the family's table. Many, perhaps most, people in this country were familiar with firearms, even the middle and upper classes in this country.

When I was a youngster it was common to see ads for handguns as well as rifles and shotguns in mass circulation magazines. While I was growing up stores such as Sears, Montgomery-Ward, and Western Auto sold guns and ammunition, and so did hardware stores across the country.

I was shocked--stunned--just a few years ago when a television documentary on basic training in the Army (I think) showed trainees expressing apprehension because they had just been issued rifles, were afraid of them, and didn't think they would "like" them.

Good grief. The increasing demonization of guns since the 1970s has helped put this country in big trouble.

 

[cpileri]

national Guard in 1792?

The Militia Act of 1903 organized the various state militias into the present National Guard system.

Also, I still love this essay on the grammatical analysis of the 2nd Ammendment.

THE UNABRIDGED SECOND AMENDMENT
by J. Neil Schulman
If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right ? And if you wanted to know about desert warfare, the man to call would be Norman Schwarzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution ?

That was the question I asked A.C. Brocki, editorial coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus."

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus," has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter:


"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, 'A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'

"The debate over this amendment has been whether the first part of the sentence, 'A well-regulated Militia, being necessary to the security of a free State', is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms, shall not be infringed.'

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."


My letter framed several questions about the test of the Second Amendment, then concluded:


"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance."


After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the follow analysis (into which I have inserted my questions for the sake of clarity):



--------------------------------------------------------------------------------

[Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

"In reply to your numbered questions:

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

[Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

[Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

[Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

[Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

[Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

[Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

[Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

[Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

[Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

[Schulman:] "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

"My questions for the usage analysis of this sentence would be,

"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?"

[Copperud:] "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure.

"(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.

As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.

And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms -- all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution.

And even the American Civil Liberties Union (ACLU), staunch defender of the rest of the Bill of Rights, stands by and does nothing.

it seems it is up to those who believe in the right to keep and bear arms to preserve that right. no one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says it means but means whatever they say it means in their Orwellian doublespeak ?

Or will be simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortuned, and our sacred honor ?

(C) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.



--------------------------------------------------------------------------------


About the Author

J. Neil Schulman is the award-winning author of novels endorsed by Anthony Burgess and Nobel-economist Milton Friedman, and writer of the CBS "Twilight Zone" episode in which a time-traveling historian prevents the JFK assassination. He's also the founder and president of SoftServ Publishing, the first publishing company to distribute "paperless books" via personal computers and modems.

Most recently, Schulman has founded the Committee to Enforce the Second Amendment (CESA), through which he intends to see the individual's right to keep and bear arms recognized as a constitutional protection equal to those afforded in the First, Fourth, Fifth, Ninth and Fourteenth amendments.


J. Neil Schulman may be reached through:

The SoftServ Paperless Bookstore, 24-hour bbs: 213-827-3160 (up to 9600 baud).
Mail address:


J. Neil Schulman
PO Box 94, Long
Beach, CA 90801-0094.





C-

 

[mek42]

That grammatical analysis was very insightful - thank you for posting it.

 

[TexasRifleman]

But even beyond grammar the other writings of the men that penned the Second Amendment make it clear their thoughts on the thing.

The question here

But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution ?

is easy to answer.

You'd ask the men that wrote it. They left behind enough other writings on the topic to make their meaning very very clear.

 

[Regolith]

cpileri: Do you have a link to that article? I'd like to use it in some other debates. It completely destroys the confusion and spin the anti's have tried to manufacture in order to tweak the meaning of the second amendment.

 

[cpileri]

Yes it does!

That's why I like that essay so much.

Problem is, you have to have a chance at a pretty well-educated crowd to be able to deploy its usefulness.

PM sent.
C-

 

[cpileri]

Yes it does!

duplicate

 

[pdowg881]

What's with this whole collective vs individual rights issue? There's plenty of documentation by the framers of the constitution that make it clear that it is an individual right. Not to mention the fact the the bill of rights concerns inalienable and individual rights. Why would they throw one in there that doesn't apply to the individual? The second ammendment is short and right to the point. It means what it says, and it means what the founding fathers said it means.

 

[ctdonath]

So I am required to go purchase a select-fire M16

Basically, yes.

The Militia Act of 1792, written by pretty much the same guys that wrote the 2nd Amendment, required able males 17-45 be armed to minimum standards - at their own expense. Upgraded to 2007, that would entail you to buy your own M16, 8 full mags, and related gear.

I've cash in hand & ready to buy once SCOTUS clears this tidbit up and tosses 922(o).

 

[MKEITH]

This may be a dumb question, but as far as the second amendment referring to the National Guard,was there a National Guard when the constitution written? I don't think there was. If I'm right, how can it be said that The Founders of this great country were talking about an entity that was not even in existance at the time? Just doesn't make any sense to me.

 

[TwitchALot]

CT, I don't believe it is required. IIRC, conscientious objectors and the like were exempt. Regardless, I don't think anyone should be forced to buy guns any more than I believe that people shouldn't be allowed to ban guns.

This may be a dumb question, but as far as the second amendment referring to the National Guard,was there a National Guard when the constitution written? I don't think there was. If I'm right, how can it be said that The Founders of this great country were talking about an entity that was not even in existance at the time? Just doesn't make any sense to me.

There was no National Guard when the Constitution was written- you are correct. As for why people believe such non-sense, we can speculate about that forever, but if I had to describe it in one word, it'd be "ignorance."

 

[Regolith]

PM sent.

For some reason it didn't show up in my inbox. Can you resend the link?

Thanks.

 

[Vector]

Great topic

 

[ServiceSoon]

was there a National Guard when the constitution written?

YOu are correct in your assumption. It wasn't until 1792 that the Militia Act became law.

 

[zeko]

Usefulness of handguns . . .

"If we're talking about self-defense, handguns work for that," Tushnet said. "The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the "bazooka problem" really is a serious problem. If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."

If handguns are so useless in fighting an enemy with tanks, why are our military people issued handguns? The Germans had tanks in WWII, and yet the U. S. Army saw fit to issue handguns . . .

 

[Grey54956]

"If we're talking about self-defense, handguns work for that," Tushnet said. "The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the "bazooka problem" really is a serious problem. If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."

We don't need bazookas. People can't stay in tanks forever.

 

[legaleagle_45]

"If the function is that you can resist the government and the government has tanks, then it's not clear what use you're getting out of a handgun."

Which is exactly why we air dropped all them bazookas to the French Resistance during WWII... Wait, we did not air drop bazookas to the French Resistance, we air dropped handguns (and pretty crummy ones at that). Sheesh, those folks back in WWII didn't know what they were doing!!!

 

[hugh damright]

how can it be said that The Founders of this great country were talking about an entity [the National Guard] that was not even in existance at the time? Just doesn't make any sense to me.

I think it is said that the idea of well regulated State Militias has evolved into the National Guard, so saying that there was no NG in our Founders' day doesn't seem to disprove that assertion.

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all governments formed under the Constitution from abridging that right.

This always gives me the impression that the author has no sense of what he is talking about, that he has such little sense of government that he thinks that the State and local governments are formed under the US Constitution ... why else would he say that the 2nd forbids all governments formed under the Constitution rather than just saying that it limits the federal government?

the bill of rights concerns inalienable and individual rights

I believe that the USBOR concerns limits upon the federal government.

 

[frankie_the_yankee]

I believe that the USBOR concerns limits upon the federal government.

The 14th amendment is said to "incorporate" the BOR such that it applies to the states as well. There is much case law on this, though none that I know of on the 2A. In fact, I believe that it is the only one of the elements of the BOR that has not yet been incorporated.

It is very likely that one of the consequences of the Parker case will be that SCOTUS finally "incorporates" the 2A.

Note that IMO this will not wipe out all gun control laws as some seem to think. SCOTUS will leave a lot of room for "reasonable" regulations. Even registration will probably pass muster, IMO. Only outright bans will be in trouble.