THE RIGHT TO BEAR ARMS--Two views
CONSTITUTION PROHIBITS FEDERAL
by Peter D. Lepiscopo
A reprint of an article that appeared in the San Diego Mirror Tribune 2/2/94 entitled:
Is its purpose for hunting? For collecting? For sport? Or for self-defense against criminals? No, although these have been offered as justification for its existence. Its sole purpose is to secure an individual's right for self-defense against government. "It" is the Second Amendment.
In order to understand the Second Amendment's constitutional purpose, one first must recognize the distinction between the Constitution and Bill of Rights. The Constitution establishes a government of limited powers; thus it deals exclusively with power. Conversely, the Bill of Rights (Amendments 1 through 10) was adopted to secure individual rights against government's intrusion; thus it deals exclusively with individual rights.
The importance of this distinction is indispensable when one attempts to discern the meaning and purpose of the Second Amendment. For example, if the Second Amendment is designed to secure a right against government's intrusion, then the question is raised: How can one argue that the amendment's purpose is for self-defense against criminals?
The answer, of course, is that one cannot because the Bill of Rights does not secure an individual's rights against other individuals but against government. Accordingly, present-day opponents and proponents of gun control are engaged in a debate that does not address the principle of government vs. individual but individual vs. individual. This misinformed and illogical debate would offend the Founding Fathers.
Another misconception about the Second Amendment is the unfounded assertion that the amendment's language is ambiguous. The Second Amendment provides: "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".
This language is not ambiguous but clear if one properly analyzes the amendment according to Thomas Jefferson's instructions: "On every question of constructions of the Constitution let US carry ourselves back to the time when the Constitution was adopted and recollect the spirit manifested in the debates".
In order to find the purpose behind the Second Amendment, one need only recall the Founders' fear of government's abuse of power.
Specifically, the Founders feared a standing army, which is defined in the Oxford English Dictionary as an army of professional soldiers kept permanently on foot. For example, it was Britain's standing army as assembled in 1770 that caused the Boston Massacre.
The universally understood view of the Founders was articulated by James Madison during the Constitutional Convention: "The greatest danger to liberty is from standing armies". In this regard, after the signing of the Declaration of Independence and prior to the ratification of the Constitution, state constitutions secured the right to keep and bear arms. For example, Section 15 of the Declaration of Rights to Vermont's Constitution (adopted 1777) provides that "the people have a right to keep and bear arms...as standing armies are dangerous to liberty".
Article I, Section 8, of the U.S. Constitution provides that Congress shall have the power to "raise and support armies". In addition, Article I, Section 10, prohibits states from keeping troops, without the consent of Congress.
These two provisions clearly placed the exclusive power to establish a standing army with the federal government, which had the effect of disarming the states and their inhabitants. This situation sounded the alarm that caused the Founders to adopt the Second Amendment.
MILITIAS VS. STANDING ARMIES
Present-day opponents of the Second Amendment argue that the word "militia" means an army designed to provide for the common defense of our nation. These opponents, therefore, argue that because we have the greatest military that ever existed, a militia is not necessary; and, therefore, there is no need for the right to keep and bear arms. This assertion is incorrect and contrary to history surrounding and debates concerning the Second Amendment.
The word "militia" is not synonymous with the term "standing army." A "militia" is a nonprofessional citizen army, which is not assembled on a permanent basis. Conversely, standing armies are permanently assembled and are comprised of professional soldiers.
The Founders were not confusing the standing armies that could be established by Congress with those comprised of common inhabitants of the states. The latter were not assembled by, or loyal to, the federal government but to their own local neighborhoods and state. Accordingly, present day opponents' argument that the right to keep and bear arms is not necessarily because "militia" is synonymous with "standing armies" is false.
'SHALL NOT BE INFRINGED'
The Second Amendment provides that the government shall not "infringe" on the people's right to keep and bear arms. As understood by the Founders, the term "infringe," as it relates to rights, means "to encroach on or upon". This means to invade gradually.
Thus, the Second Amendment prohibits the government from interfering with this right, no matter how minimally; no matter how subtly. This includes indirect interference, such as oppressive taxation or regulation.
Furthermore, the use of the command "shall not" was used to eliminate any argument that the right was subject to the government's discretion.
The Founders did not use the term "shall not be infringed" by accident but by design. They intended to preclude the government from implementing sophisticated means by which to encroach upon this right. After all, the amendment was designed to be a check against government's abuse of power, and it would be in the government's best interest to encroach upon or eliminate this right.
Virginia delegate George Mason stated it most succinctly: "To disarm the people is the best and most effective way to enslave them".
Accordingly, the Founders used specific language in order to obtain a specific result: to secure our right to keep and bear arms for our protection against government. Those who actually believe that the Founders were not deliberate in their drafting of the Second Amendment are either naive or misinformed.
AN AMENDMENT UNDER ATTACK
In the last several years there has been a torrent of gun-control legislation that calls for severe infringements or all-out repeal of the Second Amendment. The opponents and proponents of gun control focus their debate on the impact, or lack, thereof , it would have on gun-related deaths.
On the one hand, the proponents of gun control insist that removal of all guns from society will stem the rising tide of gun violence. On the other hand, gun-control opponents insist that the Second Amendment guarantees them a right to self-defense against criminals, to collect guns, to hunt and/or to use guns for sport.
I believe both arguments are historically and constitutionally incorrect.
It is quite clear from history and the debates surrounding the adoption of the Second Amendment that the present-day debate does not focus on the proper principle underlying that amendment: protection against governmental tyranny.
Accordingly, the actual purpose of the Second Amendment will be betrayed regardless of who wins the debate.
To be sure, the argument can be made that we are entering the 21st century and the fears of men who existed in the late 18th century no longer exist. This argument quickly disappears, however, once one realizes that although time has passed human nature remains unchanged: Unless restrained, all governments devolve to tyranny.
Moreover, it can be observed that governments throughout the world are oppressive to their people. What do these governments have in common? They have the guns and their subjects do not.
More importantly, it can never be assured, nor should we ever believe, that government could never become oppressive and devolve into tyranny. Accordingly, there can never be any constitutional justification for government infringing upon the people's right to keep and bear arms.
Finally, to those of you who advocate gun control at the expense of the Second Amendment, I leave you with Benjamin Franklin's insight: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety".
ANTI-TYRANNY ARGUMENT NOT
A REALISTIC POSITION
by David R. Boldt
Now that gun control is being taken seriously as an issue, it may be time to deal with a whole section of that debate that never really has been seriously discussed in public.
Then again, maybe it isn't. Both sides in the debate have been perfectly happy to keep it off the table up to this point, and maybe that's where it belongs. We'll see.
I refer here to the fact that many opponents of gun control are not primarily concerned about preserving the right of Americans to hunt and to shoot at targets. (Most gun-control proposals specifically omit weapons used for hunting and target-shooting anyway.)
Rather, they believe that citizens should have guns for the reason that the founding fathers put the Second Amendment into the Constitution: to enable citizens to overthrow a usurping tyrant by force of arms. The whole assault weapon debate rests on this often unarticulated premise.
To the extent that this argument is ever brought out into the open, it tends to get short shrift, usually along the following lines:
Gun-control advocate: "But this country has been going for more than two centuries, and no tyrant has tried to take over".
Gun-Control Opponent: "See--It Works".
A STRATEGIC DECISION
For the most part, gun-control opponents have chosen to fight this battle from their outer line of defense, arguing that gun control is not an effective way to reduce gun violence. And it's not hard to see why they would make this strategic decision. They have convincing evidence. I don't know of anyone who has ever undertaken a serious study of gun control who has not concluded that even the tightest form of gun control under consideration at present will do little more than affect the violence problem at the margins.
The reasons are pluperfectly obvious: There are just too many guns already out there, and it's too easy to sneak them in from other countries.
That doesn't mean we shouldn't try tougher gun control. The violence problem is so severe in our cities that we need to do everything we can. Moreover, it might be very powerful for the American nation to say unequivocally that we disapprove of gun violence.
Such a statement would ring hollow, of course, if at the same time we continued to condone the explicit, romanticized depiction of violence on television, in movies, in video games and so on. I personally am convinced that toning down the violence level in our popular culture would actually accomplish far more than gun control.
(There is no way, it now seems, that America can address the true "root cause" of rising violence in our society. This is the fact that at present we actively encourage bringing up children without significant moral guidance from parents, teachers or anyone else).
BURIED IN THE LAST CHAPTER
The subject of gun possession as a deterrent to tyranny is usually tucked away in the back of books about the issue. It follows the chapters full of charts illustrating the failure of gun-control laws and making the case that there are, basically, kinds of people who shoot other people and kinds of people who don't. (Gun-control opponents contend that this fact--not gun-control laws--explains the variation in national murder rates).
In Under the Gun: Weapons, Crime and Violence in America, sociologists James D. Wright, Peter H. Rossi and Kathleen Daly get to the anti-tyranny argument in a final chapter entitled, unarrestingly, "Some Policy Implications". In it they note that the Second Amendment was drafted by Thomas Jefferson, "who was himself a tireless champion of the right of a free people to rise in armed revolution against an unjust government".
Historian B. Bruce Briggs, in the end of his monograph on "The Great American Gun War", notes that "organized gun owners also see the armed citizenry as a last line of defense against insurrection. This idea has roots in the disturbances of the 1960s. While many Americans viewed the urban riots as the inevitable outcome of centuries of repression, many more merely saw police standing aside while looters cleaned out stores and homes, then envisioned the same happening to their stores and homes, and armed themselves".
Neither work attempts a serious rebuttal of the anti-tyranny argument, and, in point of fact, I have never seen one. Gun-control advocates may regard the argument as anachronistic.
However, I can assure them, based on my many conversations with people who have called to complain about our editorial screeds against "gun nuts", that gun-control opponents regard the silence on the anti-tyranny argument as an acknowledgement that it is unassailable.
I believe the argument is eminently assailable, on grounds of simple common sense. The fear of mobs venturing out into the countryside is, to begin with, not a realistic one. Even if it were, hunting rifles would suffice for home defense. If one ventures on into the diaphanous realm of imagining a "Seven Days in May"-type takeover of the U.S. government, there are some things to keep in mind.
It's extraordinarily unlikely, for one thing, that all units of the armed forces would be loyal to the coup-makers, given the pluralistic traditions of our society. Many undoubtedly would go over, with their weapons, to the anti-tyranny side.
The anti-tyrannists might have to knock over an armory or two with their deer rifles. No one, after all, contends that citizens should be allowed to possess the full arsenal necessary to confront a standing army. Not even the National Rifle Association argues that every citizen should own his own howitzer. Or tank.
What's more, military history suggests that weaponry is not necessarily a decisive factor in the kind of conflict that might ensue. The American Indians, for example, had repeating carbines before the U.S. Calvary did, but it didn't help. The Viet Cong, to cite another example, had nothing like the firepower available to the American military machine, and yet the VC prevailed.
Going back to the beginning of our nation's history, the British Army was infinitely better equipped than Washington's forces, and we all know how that turned out.
In the final analysis, the success of American democracy has rested on two principal factors. One is our reverence for the rights guaranteed in the Constitution, including the rights to free speech and to bear arms. The second has been the awareness that these rights have to be subject to a test of reasonableness, and that the criteria for that test can change depending on circumstances.
At present, a reasonable assessment of the guarantee to keep and bear arms requires some curtailment of that right. I don't see how anyone can argue with that--though I'm sure some people will.