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
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,
Sincerely,
Ken P.
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.
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.
Jonathan
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.
Sir, I really resonate with this opinion piece and would like to share it with my membership in our next newsletter.
Thanks
Ray
Chicken.
Sorry the image of Rush Limbaugh in swaddling clothes is too disturbing to focus on any constitutional question at the moment.
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.
Wow! I could tell it was a little difficult for you, but I salute you for your honesty on the 2ndA
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.
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.
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
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.
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.
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:
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?
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