Debate

Part II: Guns and the Second Amendment

EDITOR: What is the state of legal thinking regarding the Second Amendment and guns? In your judgment, does the Second Amendment prohibit some or all forms of gun regulation? Or, alternatively, does the Second Amendment permit unlimited government regulation of guns?

ROBERT SPITZER: Based on court rulings, historical interpretation, and the sense of those who drafted and debated the amendment, the meaning of the Second Amendment is clear. It provided for a citizen-based right to keep and bear arms when men were called into service in a government-regulated militia, keeping in mind that militias composed of self-armed men were the primary means of national defense in the eighteenth and early nineteenth centuries.

The national government formed under the Constitution of 1787 was granted sweeping new powers, including not only the power to create and maintain a standing army (a power denied to the national government under the old Articles of Confederation), but also the power to organize, arm, and discipline the militias. Antifederalists already suspicious of new federal powers were deeply concerned that states would no longer retain militia authority, and so they sought this reassurance in the Bill of Rights.

The militia-based understanding of the Second Amendment has been uniformly endorsed in Supreme Court cases stretching back to the nineteenth century (U.S. v. Cruikshank, 1876; Presser v. Illinois, 1886; Miller v. Texas, 1894; U.S. v. Miller, 1939;Lewis v. U.S., 1980). The age of some of these cases has prompted some critics to dismiss them, but court cases do not come with expiration dates. In addition, more than forty lower federal court cases, and law review articles published as early as 1874, all embrace this meaning.

In recent decades, efforts have been mounted to impose an individual meaning on the Second Amendment—that is, to assert that the amendment protects an individual right to own guns, aside and apart from militia service. The effort dates to a law journal article published in 1960. Since then, the individualist movement has won adherents, and in 2001 a federal court (Fifth Circuit) for the first time accepted this view in U.S. v. Emerson. This view has now been endorsed by Attorney General John Ashcroft, representing a reversal of decades of Justice Department interpretation. But even supporters of the individualist view generally concede that it permits reasonable gun regulations.

ROBERT J. COTTROL: There can be little doubt that the Second Amendment was intended to protect the right of the people to have arms. The amendment should first be seen as a restatement of the principle found in the English Bill of Rights of 1689. This principle—that the people should be armed not only to participate in militia duty but also to defend themselves against a tyrannical government—was a well-recognized part of Anglo-American political and constitutional thought endorsed by, among others, English legal commentator William Blackstone.

Both Blackstone and the English Bill of Rights were part of the background of the framers as they drafted the Bill of Rights, including the Second Amendment. No one has found any statements from the late eighteenth or early nineteenth century endorsing the notion that the amendment applied only to men acting in a militia capacity. Although one of the purposes of the Second Amendment was to ensure that an armed population would be available to act in a militia capacity, there is no evidence that the right was to be restricted to that. Indeed, given what we know of the rejection of alternatives that were offered, there is a strong indication that the intent was to protect an individual right. Virtually every legal commentary in antebellum America on the Second Amendment saw the amendment in individual-rights terms, starting with St. George Tucker who, in his 1804 (first American) edition of Blackstone, contrasted the robust right in the United States with what he saw as the weaker right in England.

The history of the right to keep and bear arms in the U.S. Constitution does not end with the Second Amendment. We have to look also at the history of the Fourteenth Amendment. The framers of that amendment assumed the right to be individual, and the best reading of the debates over the amendment indicates they intended it and the rest of the Bill of Rights to be made binding on the states through the “privileges or immunities” clause. Their motivation was simple; they wanted to stop the southern states from disarming the newly freed black population of the South.

I believe that Robert Spitzer is standing the history of individual- and collective rights views of the Fourteenth Amendment on its head. Before 1960 there were few who would have claimed that the Second Amendment did not protect the right of individuals. The collective-rights view is a product of the 1960s and the search for a constitutional justification for gun control. Spitzer is misreading the cases that he cites in support of a militia-based understanding of the Second Amendment. Cruikshank, Presser, and Miller v. Texas aren’t about the individual- versus collective-right issue at all. They stand for the proposition that the Second Amendment only restricts the federal government. Cruikshank involved private individuals (the Ku Klux Klan) infringing on the First and Second Amendment rights of individuals (black men trying to vote). In a decision that should be infamous, the Supreme Court said that Congress could not pass civil rights legislation protecting the freedmen from Klan violence.

What does an individual-rights interpretation of the Second Amendment mean for gun control? If we define gun control as measures designed to ensure that ineligible people—those with histories of criminal activity or mental instability—are stopped from buying guns, an individual rights reading of the Second Amendment would actually help this process. The reason that there is a mass movement opposing all gun control measures is directly related to decisions of the courts that do not protect the Second Amendment rights of the American people. Otherwise, we could begin to have a much more productive dialogue on firearms regulation.

SAUL CORNELL: There is tremendous ferment in the field of Second Amendment scholarship and jurisprudence. Most, but certainly not all, scholars and judges think that the controlling precedent, U.S. v. Miller, favors a militia-based view of the amendment. This interpretation is often described as the collective-rights view, but I don’t think it makes sense to continue to talk about two camps in this debate. There are now at least three models for understanding the Second Amendment. Some view it as an individual right, others as a collective right, and some have rejected both of these views and have embraced a third view that might best be described as a civic right.

The individual-rights view comes in at least two radically different forms: an expansive individual-rights view and a limited individual-rights view. For supporters of the expansive individual-rights view, the Second Amendment should be treated in much the same way that we treat freedom of speech. This would subject gun laws to ‘strict scrutiny’ by courts and might undermine some, but certainly not all, existing gun laws. For these scholars, guns and words are identical from a constitutional perspective. For those who favor the limited individual-rights model, private ownership of guns would be protected as an individual right, but would be subjected to the much less stringent “rational basis” test.

The limited collective-rights view, often described as the militia or states’ rights view, obviously poses no serious barrier to government regulation of firearms, so long as such regulation does not disarm the militia. The more expansive notion of the collective-rights view, one held by the whole people, not individuals, has not attracted much scholarly support nor has it generated coherent theory for how gun laws ought to be evaluated by judges.

For those scholars who have grown frustrated with the “either/or” quality of the debate, the concept of a civic right provides a new paradigm for thinking about the right to bear arms. To understand a civic right, one might turn to the analogy between the militia and the jury. Citizens have an obligation to serve on the jury, which both protects liberty and is an essential institution of republican society. Citizens also have the right to bear arms, so that they can meet their obligation to participate in a well-regulated militia. The right protected by the Second Amendment is an odd amalgam of a right and an obligation. If citizens were properly trained and their weapons were approved by the government, properly registered, and stored safely, they would then be entitled to full Second Amendment protection.

JAMES JACOBS: In my judgment, the argument that the Second Amendment does not protect the individual’s right to keep and bear arms actually gets in the way of gun control. As long as gun control advocates insist that gun owners have no constitutional rights and that guns could lawfully be prohibited and confiscated, many gun owners will oppose all proposed gun controls as steps along the road to prohibition.

If, on the other hand, gun control proponents were willing to recognize that the Second Amendment does protect the lawabiding adult citizen’s right to keep and bear arms, the gun control debate could be toned down. We could then focus on what reasonable regulations are compatible with the constitutional right.

If gun owners didn’t have to fear prohibition, they would be more amenable to regulations such as registration and, perhaps, licensing.

RICHARD ABORN: Gun control supporters must attract gun owners to the anti-gun violence movement in order to break the legislative deadlock. When I was president of Handgun Control, I actively supported establishing an organization of gun owners in favor of gun control legislation. Law-abiding gun owners generally agree with most of the legislation that has been proposed. They fully understand the concept of licensing and registration; most agree with one-gun-a-month laws; and they rarely object to requirements for a background check. The tension arises because gun owners are not convinced that gun control supporters don’t secretly harbor a ban agenda, and they wonder if the NRA is right that each step toward greater controls is, actually, a step toward a ban. Advocates must convincingly persuade them that a ban is not the goal.

Is the Second Amendment, as James Jacobs suggests, the way to do this? It’s tempting, but probably not the best way to send the message. To agree to such an individual right might well create a scope of protection never intended. Should the Supreme Court make such a finding, it is unclear how it would classify the right. If the individual right to possess were considered a fundamental right, the curtailment of which is subject to “strict scrutiny,” it is possible that many effective state laws would be struck down. Likewise, many of the laws that have been proposed at the national level could meet a similar fate. Similarly, even if the “rational basis” test were applied, it is unclear which cases would pass constitutional muster.

GREGG CARTER: The individual-rights interpretation of the intent of the Second Amendment is historically accurate. There is strong evidence of an Anglo-Saxon legal tradition that not only allowed but required all free men (non-serfs) to keep and bear arms as early as the seventh century. Every landowner was obliged to keep armor and weapons according to his rank and possessions. This right and duty was transferred to colonial America, where all the colonies individually passed militia laws that required universal gun ownership. There is undeniable historical support for the contention that the Second Amendment protects the right of individuals to keep and bear arms. This is a fundamental claim of the National Rifle Association. However, the examination of history also leads to the conclusion that both state and federal governments can “infringe” upon the possession and carrying of arms.

Many contemporary legislators and judges have not felt the need to be in lockstep with the full intentions of the framers of the Second Amendment. Rather, they recognize the significant changes that have occurred in the United States since 1776, when an armed population was critical to the defense of the new nation. The standing army has now become entrenched in American life, and notions that it is a threat to personal liberty have long ago been dispelled. In the eighteenth century, the protection of home and town were left to the individual or to the militia; but by the middle of the nineteenth century, local police forces were the norm, and by the middle of the twentieth century, national law enforcement agencies were well established. In sum, eighteenth century notions of the purpose and place of the militia in the community are out of step with the twenty-first century, and so too, consequently, is the need to assure the keeping and bearing of arms in private hands.

Statements made by U.S. Solicitor General Theodore Olson in his recent filings should serve to calm gun control advocates. He observed that the individual right to own guns is nonetheless “subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.” The Second Amendment poses no obstacle to gun control, as it is debated in modern America.

ROBERT SPITZER: The British tradition supports a militia-based and highly restricted view of any claims to individual gun rights, so it is a poor prop for those seeking to promote an individualist view in the United States (e.g., see Bogus, Schwoerer, Wills). Beyond that, there is no direct evidence that the pertinent section in the British Bill of Rights of 1689 was the model for our Second Amendment. Britain is a different country from the United States, and this constitutes, at best, secondary evidence on American law crafted after we became an independent nation. Finally, it diverts attention from the direct evidence, including our own constitutional founding and the debates of the First Congress when the Second Amendment was drafted, debated, and passed.

All of the debate during the First Congress “applied only to men acting in a militia capacity,” including debate over whether the amendment should include wording to codify the right of conscientious objectors to opt out of militia service for religious reasons; the relationship between militias, standing armies, and liberty; the need to subordinate the military to civilian authority; and the unreliability of the militia as compared with a professional army. There was no debate about the amendment serving as a basis for individual gun ownership detached from military service.

The cited Supreme Court cases do address incorporation, noting that the Second Amendment has not been applied to the states. But these cases also describe the Second Amendment right precisely and repeatedly as one pertaining to “a well regulated militia,” as for example in Presser (1886) when the Court said that states could not “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” And in 1939, the Miller Court said that the defendant had no Second Amendment right, because the gun in his possession that federal law barred him from transporting across state lines (a sawed-off shotgun) had no “reasonable relationship to the preservation or efficiency of a well regulated militia.” It is utterly senseless to read Miller as saying that the Second Amendment applied to individuals according to whether or not a particular weapon was suitable for militia purposes, because such a reading would provide constitutional protection for individuals to possess weapons that have military value—everything from bazookas to tactical nuclear weapons.

ROBERT J. COTTROL: Presser does not state that the Second Amendment only applies to people acting in a militia capacity. It deals instead with the question of the amendment’s applicability to the states. The Presser opinion also endorses the notion that the whole of the citizenry constitutes the militia and that they cannot be disarmed by state governments.

The issue facing the Miller Court was the question of the 1934 National Firearms Act and its requirement for the registration of sawed-off shotguns. The Court was not faced with bazookas or tactical nuclear weapons. Faced with a sawed-off shotgun, the Court asked whether it was the kind of weapon regularly used for militia purposes—the same question the Tennessee Supreme Court had asked in 1849 in Aymette v. the State (Miller relies heavily on Aymette). In that case the question was whether or not a state statute prohibiting Bowie knives was contrary to the state constitutional guarantee protecting the right to bear arms. The Aymette Court made a distinction between weapons generally used by criminals and those used by law-abiding citizens for their own defense and the common defense. This was the distinction Miller was examining.

ROBERT SPITZER: Presser is, indeed, all about militias. The whole point about the case was that the paramilitary fringe group (headed by Presser) wanted to function as a private militia. The Court said that there was no such thing under the Constitution or the Second Amendment, because military organization, drill, and parade are “especially under the control of the government … they cannot be claimed as a right independent of law.” The legitimate militia at the time, said the Court, was the 8,000-member Illinois National Guard.

JOYCE MALCOLM: The state of legal thinking has overwhelmingly endorsed the view that the individual has a right to possess and bear arms. Daniel Lazare had it right when he wrote in Harpers Magazine in 1999, “The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right. The amendment does confer an individual right to bear arms.” Based on what Supreme Court Justice Thomas referred to as “an impressive array of historical evidence,” leading American constitutional experts, including Laurence Tribe, Akhil Amar, Leonard Levy, and William Van Alstyne, agree that the Second Amendment protects a right for the individual to have arms. This interpretation is not, as Robert Spitzer would have it, a product of the gun rights movement tracing back to 1960. It is the original interpretation of the Second Amendment, a legacy of the framers’ rights as Englishmen.

Although Spitzer claims that the English Bill of Rights guarantee to Protestants of “arms for their defence” is militia-based, the text never mentions the militia. Indeed, the drafters rejected the phrase that these arms were “for the common defence.” In her book on the English Bill of Rights, Lois Schwoerer placed the right to have arms among the “rights to the individual.” Parliamentary debates and judicial opinions made it clear that although the final clause, “suitable to their Condition and as allowed by Law,” would permit regulation, an individual right was intended. In 1790, a year before the ratification of the American Bill of Rights and after England’s worst riots of the century, London’s legal advisor explained: “The right of His Majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable … and that right, which every Protestant most unquestionably possesses, individually….” In the nineteenth century the guarantee was extended to those of all religions. In a landmark case in 1820, Justice Bayley found: “A man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road.” No mention of the militia here, or a collective right. It was this individual right that the American colonists inherited. The Second Amendment provides an even broader guarantee. It makes no mention of religion or condition, or “as allowed by law.” Madison described his proposed amendments “as guards for private rights” and did not intend to place the Second Amendment in the section of the Constitution dealing with the militia. The most respected constitutional experts of the nineteenth century, Supreme Court Justice Joseph Story and Justice Thomas Cooley, refer to the Second Amendment guarantee of an individual right. Indeed, one reason Justice Taney in the infamous Dred Scott case was insistent blacks could not be citizens was that “It would give to persons of the Negro race … the full liberty of speech in public and in private … and to keep and carry arms wherever they went.”

ROBERT SPITZER: The individual right that Joyce Malcolm discusses actually arose in Britain a century after the 1689 British document was written, after America had established its own country, and it occurred—however the story may be told—in another country. As historian Lois Schwoerer concluded, the British Bill of Rights “did not secure to ‘ordinary citizens’ the right to possess weapons.” Joseph Story explained the Second Amendment expressly as “the right of the citizens to keep, and bear arms” so as to maintain “the importance of a well regulated militia,” although he fretted that “among the American people there is a growing indifference to any system of militia discipline.” Cooley also explained the Second Amendment in militia terms, noting that the right to bear arms extended “to those enrolled” as well as to those who might be needed in a full-scale emergency, because “this enables the government to have a well regulated militia.” Further, while Malcolm mentions a case that is not a Second Amendment case (Dred Scott), she ignores the several cases where the Court did interpret the meaning of the Second Amendment in terms of militia service—in particular, Presser and Miller.

ROBERT J. COTTROL: Spitzer cannot enlist nineteenth century Michigan jurist and legal commentator Thomas Cooley into the ranks of those endorsing the “militia only” view of the Second Amendment. In his 1898 treatise General Principles of Constitutional Law, Cooley was arguing for a robust view of an individual right to arms that included not only the keeping of arms, but the formation of voluntary military or militia units. One of the difficulties in the Second Amendment debate is that there is an assumption that the moment the word “militia” is used, that automatically rules out the Second Amendment as a right of individuals. It does not. The framers’ vision, and the prevailing view throughout the nineteenth century and in Miller, was that the militia was composed of the entire citizenry, or at a minimum the entire free male citizenry. The right was safeguarded to ensure an armed population that was familiar with the use of firearms, so that they could perform militia duty if summoned. That is certainly the view Cooley was endorsing. He was emphatically not endorsing the modern gun control movement’s view that only those formally enrolled in a government-organized, regularly drilling militia had the right to keep and bear arms.

ROBERT SPITZER: Cooley is describing two types of militias—the organized militias that became the National Guard by act of Congress in 1903, and the unorganized or general militias (those Cottrol refers to as “all eligible males”). Cooley makes it clear that these general militias were predicated on men getting and keeping their own weapons, should they be called up. Yet the general militias were still militias, linking personal gun ownership to government militia service. Nowhere in the passage is there any reference to private gun ownership for any private purpose.

JOYCE MALCOLM: There is overwhelming evidence from both federalists
and anti-federalists that the Second Amendment was meant to protect the individual right to be armed. What is lacking is a single eighteenth-century statement that the Second Amendment was meant only to protect a collective right for the militia to be armed. The framers could easily have guaranteed the right of the militia to keep and bear arms; instead, they guaranteed “the right of the people.” During the drafting of the amendment, the senate specifically rejected the suggestion that after “the right of the people to keep and bear arms” they add “for the common defense.” Americans had inherited an individual right to be armed, and the framers intended to protect it.

SAUL CORNELL: While much modern scholarship has presented the Second
Amendment as a choice between two opposing models, there is no reason to assume that the founders or the great commentators of the nineteenth century fit perfectly into either of these models; indeed, they would likely view the ideologies of the NRA and the modern gun control movement as alien. We need to understand these thinkers as products of their own time and not press them into service in our own modern battles. Any efforts to translate these founding era texts into contemporary terms will distort them. We need to separate the task of historical analysis from advocacy. Historical questions must yield historical answers, not answers to contemporary policy questions.

James Madison did not say that all of the rights protected in the Bill of Rights were exclusively or entirely private; in essence, he said that they were primarily individual rights. In the very same document Madison describes the right to have arms protected by the English Bill of Rights in terms closer to the view described by Spitzer, not Malcolm. I think Joyce Malcolm correctly notes that the English courts had expanded the understanding of that right by the middle of the eighteenth century. Such a development, however, is quite distinct from claiming that this was the original meaning of either the English Bill of Rights or the Second Amendment.

Malcolm’s suggestion that we need to find explicit language from the eighteenth century saying that the amendment protects only the right of citizens participating in the militia seems profoundly presentist and ahistorical. The fact is that we don’t see clear evidence of people saying that the right to bear arms ought to be secured outside of the context of the militia, either. Both of these formulations are anachronistic. Neither Malcolm nor anyone else supporting the modern individual rights view of the amendment has produced a single case from the founding era in which someone claimed to be bearing arms in self-defense. No one would deny that the founders believed in a right of individual self-defense. I think it is a serious historical mistake to confuse this notion with bearing arms as part of a well-regulated militia, which was a form of collective self-defense.

JOYCE MALCOLM: The Second Amendment had a dual purpose: to protect an individual’s right to be armed and to afford the people the means, if necessary, to protect their other rights. Saul Cornell seems to be arguing that historical evidence is wrongly used if it is employed to understand the lives and views of the people of an earlier time. It is crucial to appreciate the context in which the founders lived, not to distort historical facts or ignore inconvenient evidence. Historical questions must yield historical answers. That is precisely why the lack of historical evidence for a solely collective interpretation of the Second Amendment is, indeed, a problem for those who deny that there is an individual right.

Page 1 2 3 4 5 6 7 Next: The Brady Law Reprinted from Focus on Law Studies, SPRING 2003, Volume XVIII, Number 2, published by the Division for Public Education of the American Bar Association.

Copyright 2003, American Bar Association Division for Public Education, 541 N. Fairbanks Ct., Chicago, IL 60611.

Reproduced by permission. All rights reserved. This or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.