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As NRA convenes in KC, 2nd Amendment debate
intensifies
Related Sites:
• Million Mom March
• The Potomac
Institute
• Gun
Control vs. Gun Rights
• Arms Rights and Liberty Information on
the Internet
• Handgun Control Inc.
• NRA.org - the National Rifle
Association
By RICK MONTGOMERY - The Kansas
City Star
Date: 05/18/01 p. A1
A contorted, 27-word sentence
penned more than two centuries ago lingers and swirls like gun smoke,
its meaning today debated more than ever.
As the National Rifle Association kicks off its annual convention
today in Kansas City, bringing as many as 40,000 members, new battle
lines are forming. And high above the center of the conflict hovers that
one confounding sentence -- the Second Amendment in
the Bill of Rights:
"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."
For decades, federal judges have resisted jumping into America's
argument over exactly what that sentence means.
Now, a 1999 ruling out of Texas has made the Second Amendment a live
ball, one that could be bouncing its way to the U.S. Supreme Court. In
the end, scholars say, gun enthusiasts could score an unprecedented
legal coup, securing individual rights that courts have long been
reluctant to grant them.
At issue is the so-called "second half" of the Second
Amendment -- that part about the right of the people. Does it mean any
law-abiding individual has a constitutional right to own guns?
The NRA gathering in Bartle Hall says yes, absolutely. The group
plasters "the right of the people to keep and bear arms" all
over its literature and T-shirts. And its president, Charlton Heston,
calls that right "the most rare and hard-won right in human
history."
Gun-control advocates and many legal scholars say no, it is not an
individual right. And until recently they have had federal court rulings
on their side.
They favor the first half of the amendment, which they say merely
guarantees a "collective right" of states to defend themselves
from federal tyranny by maintaining an organized militia -- in
modern-day parlance, a National Guard.
But U.S. District Judge Sam Cummings of Lubbock, Texas,
single-handedly blew a hole through that interpretation two years ago.
Ruling that the Second Amendment guarantees rights to individuals,
and not just to militias, Cummings dismissed federal charges against a
physician who had brandished a handgun in front of his estranged wife
and their daughter.
Thought to be the first time a judge has used the Second Amendment to
overturn a federal law, the ruling is under appeal.
Future hinges on courts
At least two U.S. Supreme Court justices, Clarence Thomas and
Antonin Scalia, already have hinted at a readiness to expand the
definition of the Second Amendment.
The political makeup in Washington this year also has the NRA
breathing easier. The group helped George W. Bush eke out a presidential
victory and has a longtime champion of gun rights, John Ashcroft,
running the Justice Department.
Still, the courts remain a huge concern. A barrage of liability
lawsuits against gun makers spurred Colt's Manufacturing Co. to abandon
sales of self-defense sidearms.
Should the high court weigh in on the side of individual rights, a
flood of new litigation surely would follow in the lower courts.
Some doubt that such a change would have much effect on the thousands
of gun laws already on local, state and federal books.
"No rights are absolute, and government would still have the
larger responsibility of protecting the health, safety and welfare of
its citizens," said Robert Spitzer, political science professor at
State University of New York and author of The Politics of Gun
Control.
Taken to the extreme, background checks could be ruled
unconstitutional, cities could be prevented from banning handguns, and
felons could carry weapons, though few observers on either side of the
debate foresee the end of gun control.
"If a re-interpretation doesn't change the landscape, it would
certainly change the conversation about gun legislation," said Dan
Polsby, a law professor at George Mason University. "The Supreme
Court has managed to dodge the issue for years."
He agrees with the NRA interpretation: "There's clearly an
individual right -- everything about the Second Amendment says so."
Jonathan Lowy, senior attorney for the Center to Prevent Handgun
Violence, could not disagree more.
"The courts have said what the Second Amendment means: It gives
states the right to have militias," Lowy said. "To rule that
individuals have a constitutional right to possess guns could have
tremendous implications. The fact that some trial judge in Texas went
that way doesn't signal a trend."
There are signs of a refocusing, however, such as the 2000 edition of
American Constitutional Law, edited by liberal scholar Laurence
H. Tribe of the Harvard Law School. It included for the first time a
section suggesting that the individual-rights argument should be taken
more seriously.
"The federal government may not disarm individual citizens
without some unusually strong justification," Tribe wrote.
27 contentious words
What did James Madison and his constitutional collaborators mean
to say with those 27 words?
"The evidence of the framers' original intent is mixed,"
said Michael C. Dorf, a vice dean at Columbia Law School and a supporter
of gun control. "But courts very rarely base their decisions solely
on what the framers meant to say in 1791."
There is little dispute that gun possession at the end of the 18th
century was an accepted, even necessary, way of life in the United
States. And the record makes clear that state legislators debating the
ratification of the Constitution insisted on the need for state
militias, manned by private citizens, to arm themselves as a balance
against possible abuses of a national army.
Less clear is the chorus for an individual citizen's right to lock
and load.
When drafting the Bill of Rights, Madison relied in part on rights
outlined in state constitutions. Five of those constitutions mentioned
militias but not the right to bear arms. Three granted a collective
right to bear arms for the defense of the state. Two guaranteed
individual rights, and four mentioned neither militias nor the right to
bear arms.
Madison's draft included both "a well regulated Militia"
and "the right of the people to keep and bear Arms." But the
House of Representatives deleted another clause designed to prevent
governments from forcing pacifist Quakers into militias: "No person
religiously scrupulous of bearing arms should be compelled to render
military service."
Spitzer said the deleted clause suggested that the framers intended
to focus the Second Amendment on military issues. "All the debate
was framed in military terms," he said.
Individual-rights advocates counter that society widely accepts that
most other provisions of the Bill of Rights -- free speech, for example
-- apply to "the people" as well as the states.
"Civil libertarians support the individual rights recognized in
the First, Fourth, Fifth and Sixth Amendments," writes law
professor David E. Vandercoy of Valparaiso University. But with the
Second, their "instincts are overcome by our fear of one
another."
In the 20th century, the high court rarely touched the Second
Amendment. Its most direct attempt at interpretation, in 1939, resulted
in a ruling restricting sawed-off shotguns, mainly because a militia
would not need them.
Justices might get another crack if the case of United States vs.
Timothy Joe Emerson reaches them.
The San Angelo, Texas, physician was indicted after pulling a Beretta
pistol out of a desk drawer and laying it on the tabletop when his wife,
who had filed for a restraining order, showed up at his medical office
with their 4-year-old daughter.
Emerson had violated a federal law included in the Violence Against
Women Act of 1994, prohibiting someone under a restraining order from
even owning guns.
Judge Cummings dismissed the charges and ruled that "a textual
analysis of the Second Amendment supports an individual right to bear
arms." The case now has been in the hands of a three-judge
appellate panel for more than a year.
Regardless of what judges say, violent crime and public opinion will
continue to weigh heavily on lawmakers. Just last week, gun-control
forces in Washington embraced a new ally in U.S. Sen. John McCain.
The Arizona Republican is sponsoring a bill with Democratic Sen.
Joseph Lieberman of Connecticut that would mandate criminal background
checks for buyers at gun shows with at least 75 weapons on sale.
U.S. Rep. Dennis Moore of Kansas is co-sponsoring the House version.
Moore said Thursday that recent school shootings had "transcended
partisan politics. This isn't about Republicans and Democrats; it's
about kids getting shot."
"With every right comes responsibility," the Democrat said.
"Convicted felons, mentally ill people and unsupervised children
don't have the right" to keep and bear arms.
To reach Rick Montgomery, national correspondent, call (816)
234-4410 or send e-mail to rmontgomery@kcstar.com.
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Frank Brady's response
to Rick Montgomery
.
What? No link to the WMSA site?
No link to the SAS
site? The Second Amendment
Sisters
The Star may ignore us, but we
shall not go away
.
.
Contorted? Apt word to start this opinion
piece. One must be a contortionist to arrive at these
conclusions.
.
.
The Second Amendment of the Bill of Rights
These are some of the sources Mr. Montgomery may have ignored:
Reynolds
University of Tennessee
Volokh,
UCLA, uh, the University of California at Los
Angeles
Levinson,
Yale
Emory
Law analysis
J.
Neil Schulman/Copperud
CaseLaw
Dave
Kopel says translate it into Latin...
plus a web site titled The
Journalist's Guide to Gun Policy Scholars and Second Amendment Scholars
contains more of these credible sources.
and this may be the major source Mr. Montgomery used:
Jim
and Sarah Brady Read the reasoning expressed in the HCI
justification keeping in mind the cites listed above. You may then
be able to discern the fallacies in the HCI position.
It is indeed unfortunate that the Star
choses to continually promulgate distortions, half-truths
and "contortions" on this subject.
.
.
.
See the U S v Emerson
opinion by Judge Cummings for a comprehensive study of the "right
to keep and bear arms" and the role of the "militia" in
our society.
.
.
.
This is a "work in process." <grin>
.
Oh Lord, after they voted for police arresting and
jailing a lady who didn't use her seatbelt?!?
.
.
.Leninist
efforts to destroy gun makers.
Extreme? Background checks are extreme.
Gun control is people control
Oh, OK, a George Mason law professor, eh?
Empirically and logically false premise.
To his credit, Tribe has no agenda other than truth.
Contentious? Contorted?
Ah yes, the people.
Hmmph? Gotta find that quote in context.
Although Miller was dead, there was no contest, and
the fact that short barrel shotguns were used in the trenches during
the, uh, Great War was not brought to the attention of the court.
The 5th District (TX, LA and MS) Appeals Court.
How does one determine the status of a case?
Our favorite Manchurian Candidate.
..
.
.
More Leninist useful idiots...
.
Ohhh! We must protect the children. No, Mr.
Moore, we must educate and train the children. Children? At
what age is a person permitted to join the military? Those of that
age are no longer children. |
