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Monday, December 19, 2005

The Second Amendment

Posted on Mon, Dec. 19, 2005

The amendment that means what it says

SPECIAL TO The Free Lance-Star

Sanford Levinson, a distinguished constitutional law professor at the University of Texas at Austin, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship. Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.

Issues involving guns have taken center stage in the cultural divide that separates Red and Blue America. Gun-control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms. However, history, buttressed by the Founders' clear understanding, dictates that the amendment guarantees this right to individual Americans.

The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939. Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The Supreme Court has conjured rights from the Constitution that do not exist in the text while disparaging those rights contained in the document itself -- leaving both sides of the gun debate cause for concern in any future rulings.

Oblique references in subsequent cases lend credibility to an individual-rights interpretation. The late Chief Justice William Rehnquist noted in a 1990 case, United States vs. Verdugo Urquidez, that the use of the phrase "the people" in the Bill of Rights was not used to avoid an "awkward rhetorical redundancy" but rather was chosen as a "term of art employed in select parts of the Constitution." He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the national community.

When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes. These statutes specified everything from the number of cartridges to the amount of gunpowder that Americans were to keep on hand.

Arms and accouterment for militia service were exempted from levy for indebtedness, and failure to have the proper equipment could draw fines. The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them. The bearing of arms was both a right and a responsibility of citizenship, with arms being legally denied to those who were not citizens.

The militia -- Richard Henry Lee, who put forth the motion to write the Declaration of Independence, described it as "the people themselves" -- stood in marked contrast to the hated standing army. Equally despised was a "select militia" that excluded general citizen participation.

The very idea that citizens might be barred from militia membership was itself an indication of tyranny. To the Founders, a "well regulated" militia was capable of being directed in proper military order, serving those functions otherwise performed by a regular army.

The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that that states can maintain a National Guard. The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.

The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment. The English Bill of Rights had guaranteed -- in 1689, only to Protestants -- arms for defense of self. William Blackstone wrote in his influential Commentaries: "Self-defense is justly called the primary law of nature so it is not, neither can it be, in fact, taken away by the law of society."

The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.

The Second Amendment serves two higher callings. On a practical level, armed citizens provided the ultimate security against enemies and tyrants, without the cost of paid government forces. On a philosophical level, the Founders knew that our ultimate success depended on the character of the people. George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue."

Much is assured us by the Bill of Rights, but much is also expected of us. The ideal citizen was self-determinative and self-reliant, while consciously dedicated to the common good. A willingness to defend self and country, with privately owned arms, was the crucial indicator of character.

Citizens possessed of both power and virtue were necessary to continue a republican form of government. Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.

The Second Amendment guarantees our sacred rights but also reminds us of our solemn responsibilities. Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty or Safety."

The Founders meant what they wrote even if, as Levinson indicated, some today may find it "embarrassing."


II. 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 Bill of Rights

The Free-Lance Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Coming Tuesday

The Third Amendment and the issue of quartering troops, by law professor Andrew P. Morris.

Tom Moncure, a former assistant counsel to the National Rifle Association, serves as senior counsel to the attorney general of Virginia. Readers may write to him at 900 E. Main St., Richmond, Va. 23219. He wrote this for The Free Lance-Star in Fredericksburg, Va.


© 2005 Star-Telegram and wire service sources. All Rights Reserved.