A Liberal’s Lament: The NRA Might Be Right After All

HEADLINE: A liberal’s lament: The NRA might be right after all

This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is “the right of the people to keep and bear arms.” Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District’s decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.

The Framers’ intent

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “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.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

LOAD-DATE: October 4, 2007

36 thoughts on “A Liberal’s Lament: The NRA Might Be Right After All

  1. While you choose not to celebrate the realization of what we lawful gun owners knew all our lives, we have reason at last to rejoice. It has always baffled me that the ACLU chose to ignore our fundamental right to arms and self protection, while they championed the rights of some of the most vile organizations in this Nation. Buck-up and accept that responsible Citizens have a right to arms for defense of their homes, property, and personal safety, and the choice Does Not rest with agenda driven media types or politicians. You need to get out more into the real world, my friend, and I don’t mean the East and West coasts. Come to rural Nevada or Western Nebraska and find out how we live and use our 2nd Amendment rights…properly.

    I was pleased to read your reasonable opinion on the intent of the second amendment; there is still hope for you.

    Kind Regards,
    Bruce Cunningham

  2. Prof. Turley:

    Sadly, you haven’t done the research on the 2A WRT the Founders intent. If we look at Madison’s original draft of the 2A, it reads:

    The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

    We know there was only one objection to this draft and it involved the “religiously scrupulous” wording. Otherwise, the 2A as enacted retains its military intent. The term “bear arms” is a wholly military term–as Garry Wills writes, “[o]ne does not bear arms against a rabbit.”

    The notion the 2A provides the right to rebellion or insurrection is also ludicrous. Is the Constitution truly so schizophrenic that it would in one part inveigh against treason and waging war on or conspiring to overthrow the government, while in another part encouraging citizens to do exactly that?

  3. You are quite right to point out the source. However, it does not alter my view that an individual right was created. The purpose may have been to maintain a militia (though I believe the intent was broader). There is ample support in the record for the idea of a well-armed populace being less susceptible to abuse or pressure by the central government. THE FEDERALIST Nos. 8, 28, 59 (Alexander Hamilton), No. 46 (James Madison). The view of the language as creating an individual right was represented in the records of the state ratification conventions, particularly in Pennsylvania. I do not want to dismiss your point as meritless. However, I have come to the conclusion that an honest weighing of the various sources strongly favors the individual right position.

  4. Prof. Turley:

    I’d take some exception to the use of the Federalist Papers as a basis for understanding the BoR since they were written before the BoR and were for the purpose of convincing people to ratify the Constitution without a BoR.

    That aside, I’m afraid FP 46 does nothing to assert an individual right to firearms. Instead, Madison is describing a scenario where the Constitution no longer exists, where the Government has been usurped–in short, he is describing a conquering or occupying force. Further, Madison is describing the balance of power between state and federal governments. The militias would still be trained, subject to discipline and under the command of a state government. IOW, it wouldn’t be an armed mob.

    WRT Pennsylvania, it is true an individual right (as was “killing game”) was asserted in its ratification conventions–as the minority view. It is also quite likely this “minority view” was, in fact, one person.

  5. What many see as a throw away line and some as an exclusionary line truely emphasises the individual aspect of the 2A. At the end of the war for independence, the citizenry feared a large standing central army. The states recognized that a state militia (well regulated) was a necessary evil. Experince (Shay’s rebellion in western Mass where a well regulated militia was used to suppress an orderly assembly to air grievances on taxation and its aftermath) demonstrated that even this level of defense was dangerous to liberty. An additional and individual layer of defense of liberty was necessary. Thus the 2A

  6. All the liberal posturing aside, the Supremes are about to have you spitting blood in anger. Live with it – we’ve had to. An honest, correct assessment of the 2 A is about to take place. Too bad so sad libs.

  7. You seem to have confused this with the Rush Limbaugh blog. This site is dedicated to a civil and frank discourse of legal issues. I use it to discuss issues with my students and other interested parties. The only requirement is an honest interest in the law, a sense of humor, and most importantly civility. You are more than welcome to continue but please try a more constructive dialogue.

  8. Rush Limbaugh was in swaddling clothes when I began to worry about our 2nd amendment rights – the GCA of 1968 began the erosion at a downhill pace. The ACLU’s sole reason for being is to defend civil liberties yet one cannot get a member of that organization to even acknowledge there is a 2nd amendment. Perhaps on this blog, in this little corner of the AOL, someone can tell me how otherwise reasonable people acknowledge the other nine rights enumerated in the BORs are individual rights, yet the 2nd amendment, the 2nd right, not the first or the last, is not an individual right but a collective one tied to service in a militia. If someone can answer that satisfactorily we’ll discuss what constitutes a militia.

  9. Sorry the image of Rush Limbaugh in swaddling clothes is too disturbing to focus on any constitutional question at the moment.

  10. […] In what is likely to be one of the most important rulings of this term, the Supreme Court has taken up the D.C. hand-gun case.  The Court is now set to rule on the long debated question of whether the second amendment creates an individual right or merely refers to the state’s right of a militia.  For a prior column on this issue, click here […]

  11. I agree with you that the Second Amendment sets forth an individual right, not a collective right of the Militia. The plain language of the amendment leads to that conclusion, which was consistent with gun ownership rights at the time the Bill of Rights was adopted. I’ve never understood why the District of Columbia (or any decent lawyer) would argue for a collective right. But that doesn’t resolve the meaning of the Second Amendment. Your discussion does not address the prefatory language of the amendment. In order to give every word of the amendment meaning, you must deal with that language. To me, it seems clear that the prefatory language is a condition that justifies the individual right to bear arms that follows. If that condition no longer exists, than the right is no longer absolute. I think it is clear that “[a] well regulated militia” is no longer necessary to the security of the United States, as it was at the time of the Bill of Rights. In fact, Judge Silberman’s opinion does an excellent job of describing the concept of the “Militia” at the time of the Bill of Rights, and implicitly leads to the conclusion that the need for such a militia no longer exists. As such, that makes the rights set forth in the Second Amendment essentially a nullity because times have changed. While I hesitate to conclude that any right set forth in the Bill of Rights has become a nullity, that seems to be the only conclusion that gives meaning to all of the language of the Amendment.
    Your assertion that the prefatory language “was intended to reaffirm the power of the states and the people against the central government”, which is similar to Judge Silberman’s assertion that the prefatory language simply sets forth one of the reasons for the amendment, is not consistent with either the language of the amendment or the remainder of the Bill of Rights. There is nothing in the prefatory language to indicate that it is only one of the reasons for the right to bear arms. Instead, it is expressly the only reason set forth. Moreover, the Second Amendment is the only amendment that has prefatory language. If you compare the First and Second Amendments, you find that the First Amendment rights are stated in absolute terms, without any conditions or other prefatory language. The logical conclusion is that the prefatory langauge of the Second Amendment has a purpose, and that purpose is essentially a condition on the right to bear arms. To argue that it is instead merely “a reaffirmation of the power of the states and the people against the central government” renders the language meaningless. You could remove the language and the right to bear arms that you now believe exists would be exactly the same. That makes no senss given the rest of the Bill of Rights.
    Thus, it seems to me that your change of heart is a trifle premature.

  12. Paul:

    That was a wonderful analysis. I do not agree, however, that the fact that no true militias (in the sense of the late seventeenth century) exist makes the right a nullity. I believe that the individual right was stated in conjunction with the militia to enhance its significance — militias were a cherished institution at the time. It was not as the sole purpose, in my view.

    Despite our disagreement, thanks for the excellent analysis, Paul.


  13. How frightening!

    Paul would have us embrace the “Use It Or Lose It” Theory of Constitutional Rights interpretation.

    Personally, I ain’t givin’ up ANY of my rights willingly but, so far, have had no real desire for a gun.

  14. jonathanturley,

    Sure glad to see at least one liberal come to the only conclusion that an honest reading of the 2nd can render.

    I hear alt of opinions saying we have no militias & that renders the amendment obsolete. Whats not being recognized is it was intended, among other things to preserve our ability to form a militia.

    With no privately held firearms its literally impossible to muster any sort of civilian fighting force to fight off anything, be it an oppressive Gov’t or invading army.

    The real factual bottom line is the founders wanted us to be free & you simply are not free if your forbidden from owning the tools that are needed to secure freedom from those bent on taking it away.

    That the states now neglect their duty as far as maintaining a militia has no real bearing at all.

    Another fact most ignore is that current federal law states that all adult men under I believe 50 years of age ARE members of the militia & as such are required to have ready acess to arms suitable for military use. I know its not enforced & dont see the need but its still a law.

    Its funny to that the precise arms the amnendment protects are the ones singled out most frequently as needing regulation or out right banning. Of course I’m speaking of those evil assault weapons.
    the second ammendment is not about hunting, its about defending yourself, your neighbors, your state & your country. Its quite a necessary thing in my opinion in a truly free society that actually respects the liberties & freedoms of its citizenry.

    On a parting note, none of the rights innumerated in the BOR were granted by the Constitution, they were simply recognized. We always had them, everyone everywhere does. They are simply repressed in many or most countries. Now, people may say “How can having a gun be a right” They did not say gun though did they?
    They said arms, knowing full well that as time went by effective arms would change. They could have said flintlocks, but they said “arms”
    Some day this arguement will be over some space age weaponry we cannot yet imagine & people will not care a bit about those archaic primitive lead spewing guns. But the ammendment will protect the right to bear those space age arms just as it protects gun ownership today.

    Sorry about the wordiness & thank you for your honest interpretation of the most important amendment in the Bill of Rights,


    Ken P.

  15. Thank you for your article on the right to bear arms. I think that a point is being missed here. In the constitution, as well as many of Jeffersons writings, it was stated that the government was a creation of the people, and it was also the peoples right to replace that government if it ever became corrupt. Jefferson was of the obviously accurate opinion that given time, our government would forget that “we the people” are truly in charge, not the federal gov’t. In the section that speaks of life, liberty and the pursuit of happiness, it also goes on to state the peoples right to over-throw the government if and when it stopped observing the Constitution and the BofR. Jefferson openly stated that the people would probably need to do this several times. For this reason alone, and the fact that the end part of the 2nd amendment states “and congress shall not infringe upon this right” make one believe that the right to bear arms was granted expressly to the people to defend themselves against a tyrannical government. When government fears the people, that is freedom, when the people fear the government, that is tyranny.

  16. Randy,

    Since humans so like to create categories, it often surprises conservatives that a person of liberal bent would favor the Second Amendment . . . until you bring up Jefferson.

    Good show. Jefferson was no fool.

  17. Buddha:

    From this blog I have learned that there are 2 types of liberals, I had previously lumped them together under one category to wit:

    1. liberal – rights abusing statist

    I now understand that one can be liberal and be for individual rights, although that would be a liberal in the classical sense of the term. And I should tell you that conservatives like myself consider individual liberties sacrosanct and there are many of us, so it would seem that the chasm is one of economics rather than liberty. Although I still do not understand why a most basic right to use our money for our own purpose is not thought of as such.

    As far as the second amendment goes I wonder why it is taking 200 years to settle what seemed to me to be self evident. The arguments that Prof. Turley is making have been made by conservatives for years.

  18. Bron,

    I’ll agree with that but with the stipulation that as far as individual rights go, I’m more concerned with human rights. If the individual right of a person is interfering with the human rights of another (e.g. the right to profit by illegal or unethical methods at the expense of either the rights or well-being of another or society as a whole like Bush did in violating the Constitution so his buddies could profit) then human rights wins. Human rights are inalienable and innate to being human, individual rights are a state granted privilege that should, in a proper society, inform and supplement human rights, not be used to trample them. If you keep the distinction between human and individual rights in mind, I think you’ll be becoming even more dissatisfied with objectivism.

  19. Buddha:

    Arent we talking about the same thing? Arent human rights and individual rights identical? I dont think the state can grant an individual right or it really isnt a right and that I think is the problem with state granted rights. As you say human rights are inalienable and extend to man not from the state but from mans nature as a rational being. I dont distinguish between human rights and individual rights. They are, in my mind one and the same. However if by human rights you mean the rights of the collective vs. the individual then I do disagree because in my mind if you have collective rights you cease to have individual rights. History is littered with the collective trampling of individual rights.

    I agree that people should/need to behave ethically and honorably when conducting business and any violation of law or ethics should be prosecuted and/or shuned. A free and open exchange of value for value. I think cronyism is a blight on capitalism, if you cannot compete on the merits then get out the way and let those that can, do. I think that our political and wealthy class have conspired on more than one occassion to inhibit competition and restrict entrance to the “game”. A truly free market, in my opinion, is not a threat to freedom but a controlled economy is and for the reasons you mention above.

    I also think that too many people are lulled into a sense of security because of organizations like the FDA and SEC, they believe these groups and look to them to let them know if somehting is safe. We all know how well that is working. If we did not have those orgs. then people might take more time to look into the consequences of their actions. The SEC was warned about Madoff, what, 10 years ago and did nothing.

    The very nature of man requires that he live in freedom. A rational being is able to do nothing else. If I had to live in a country like North Korea or Communist China I would go insane or become like the character in 1984 at the end of the novel.

  20. Bron,

    I start with the precept that all men are created equal.

    Human rights, by their very nature of being imbued at birth to ALL inherently makes them collective. Individual rights, by contrast, are state sanctioned and totally dependent upon what governance structure you live under.

    For example, an ER doctor gets an unconscious patient who requires surgery. Unknown to the doctor, this person’s religious beliefs – a human right implied by the Establishment Clause – conflicts with his his state sanctioned right to practice medicine – an individual right or civil liberty derived from satisfying the state that the person indeed has the requisite skill to practice medicine. Should the patient be able to recover based on the violation of their human rights in receiving unwanted medical care?

    I’d have to say it depends.

    If there was no deliberate action by the doctor to violate the patient’s human rights, but he was merely acting properly to save a life while practicing within the bounds of state prescribed medical laws, then the answer would be no. This is an instance where the individual right has such a high social utility (saving a life) that an unintentional violation of the patient’s human rights should be excused. So there are instances where the social utility of a civil right outweigh the social utility of an individual’s human rights. Now consider the opposite scenario when the doctor had reason to know he was operating contrary to the patient’s express intent. Then the answer would be yes. The doctor’s social utility does not trump his WILLFUL violations of human rights.

    There are VERY limited circumstances where an individual right should be allowed to trump a human right as the above example illustrates. None of that changes that the patient has an inalienable human right to worship as they please. This water becomes even murkier in the scenario of a parent refusing medical treatment for a child based upon religious reasons. Conversely curtailing an individual civil right, unless it happens to be related to or directly a human right, almost never has a broad based negative effect.

    The distinction I make between the two is simply source of the right. That example should also illustrate why individual rights should be curtailed generally (although not always) in the face of a human right – the potential for state abuses for ideological reasons over the pragmatic.

    You see this in the abortion debate all the time.

    It comes down to one group saying that their religion thinks abortion is murder is sufficient reason to oppress the human right of woman’s self-determination and property rights to her own body – so it’s a two-fer, damaging both a human right and a civil right. In effect, it begs for the state to endorse the beliefs of anti-abortionists in clear violation of the Establishment Clause on top of trampling the human rights of others. I also point to the well-worn trope about yelling “Fire!” in a crowded theater. It curtails the right to free speech (a human right and, because of the First Amendment, also a civil right) for the individual, but it also discourages people from starting unwarranted panic in the whole (panic is a threat to security) by imposing legal sanction on the individual for misusing their human and civil right of free speech. Now would that be permissible if the law stated one cannot yell “Xenu sucks!” in a crowded theater? You can see what a slippery slope that is, but unless you distinguish between innate and state sanctioned rights, it’s just a slicker surface. The distinction is critical as an analytical tool to assure proper “grip”. In the case of Xenu shouting, you can also see where Sharia fails – the right to belief must stop at the right to impose belief or human and civil rights will always be in conflict. The religious base material for Sharia is not rights based, but rather based in dogmatic repression and oppression rooted in Muslim theology. The belief that Xenu sucks and stating so in public is far less damaging to the social utility provided by free speech than yelling fire. In fact, it encourages debate. I think we can all agree that is not a bad thing. Debating beats physical confrontation.

    I’ll agree it’s not a black and white subject, but I think that the distinction – even when fuzzy and requiring Venn diagrams – is important for proper analysis of what is and is not a proper way to curtail either human or individual rights. The problem arises in this country because we recognize many human rights as a civil right and the fight to maintain the interests of individual liberty and social utility comes into play when talking about restrictions. Being that human rights apply to all by their very nature and individual rights are a matter of politics and social utility, then I have to say bias towards human rights in resolution of conflicts is not only a good thing, but a necessary thing. Otherwise you’ll get false outcomes that do harm to human rights and provide no social utility – like unlimited detention without trial.

    It’s the dogmatic insistence of the individual civil rights over the collective human rights that I think is one of objectivism’s greatest weaknesses. It’s like saying a cell has a greater right than the whole body to both exist and consume resources. Medicine has a name for that.


  21. Buddha:

    I may not be understanding completely but if the individual is a mere cell in the community, then dosent he only exists at the pleasure of the community and has no rights whatsoever? Rights must extend from the very fact of being a human being, the right to life, liberty and the pursuit of happiness are not collective rights they are an individuals birth right and should be sacrosanct.


  22. I also tend to approach things from a utilitarian standpoint. You have basic human rights derived from existing and you have civil rights that are derived from government sanction, they may (and do) overlap, but in the end the civil should defer to the innate absent quantifiable social utility. Utilitarianism is why I think the argument over big vs. small government is a false flag argument. The real question isn’t size, but functionality in preserving maximum rights and providing the best possible services with the common good as the touch point. The most good for the most people. Call me what you want, to paraphrase mespo, but I’m for better for all. Systemic health of the whole vs. individual health. Take the cancer analogy again. At a certain point, that single cells unlimited rights at the exclusion of or placed in superior position to the rights of other cells reaches critical mass and the entire organism fails. If the body is healthy enough, omitting supervening causes, cancers have difficulty metastasizing much less growing. What we see now is tumor enlargement (greed) significant enough to cause organ damage if not death of the whole organism. It’s dangerously close to metastatic spread. It’s cancer of the banking system created by exposure to the toxic world of unregulated high finance, the carcinogen. But is our whole system healthy enough to survive the treatment?

  23. I think I understand and have not really thouhgt about it in those terms. I guess individual rights dont mean much if they lead to a society with no rights at all.

    I’ll have to think about that for awhile.

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