GUNS/BARMS

[Matey]

Triggering new debate over guns

Bush policy switch finally reconciles the government to the right to bear arms

Sunday, June 16, 2002

By DON B. KATES
CIVIL LIBERTIES LAWYER

The overwhelming consensus among historians and law professors is that the Second Amendment guarantees that every responsible, law-abiding adult may have guns. It is no coincidence that the few scholars who disagree all are gun-control advocates. In contrast, endorsers of the individual-right view include not only gun-control opponents, but also numerous scholars who support gun control yet honestly acknowledge the overwhelming historical evidence.

That evidence starts with the words "right of the people" to keep and bear arms. The Bill of Rights passed as one document in 1789: Every provision having that wording guarantees a right to individuals.

To deny the Second Amendment is such a right requires assuming that when the First Amendment says "right of the people," it means a genuine right, but 16 words later, it means a "states' right" or a meaningless "collective right" -- but 26 words later in the Fourth Amendment, it refers to a genuine right again, as it also does in the Ninth and 10th amendments.

The Second Amendment also mentions "militia," a concept that, under colonial and state laws, meant every home's having a gun and every military-age male's mustering with it for militia duty.

Thus the Second Amendment's guarantee of individuals' rights to arms simultaneously guaranteed the arms of the militia, which were the arms of its individual members.

Moreover, the rule today (and in the 18th century) is that statement-of-purpose clauses do not limit the broad language of a rights guarantee. Eighteenth-century state constitutional right guarantees often had purpose clauses, but none is interpreted to limit the right involved.

James Madison, who wrote the Bill of Rights, envisioned them not as appended to the Constitution (as Congress actually did), but rather as inserted into the pertinent part of the Constitution. The Second Amendment he intended to insert not into the militia clauses (article 1, section 8, clauses 15 and 16) but into the personal-rights clauses (section 9), along with freedom of speech, press, assembly, etc.

The Founding Fathers' ideas would group them today with the National Rifle Association's most militant members. "One loves to possess arms," Thomas Jefferson wrote George Washington on June 19, 1796. James Madison assured his fellow countrymen they need not fear their government "because [you have] the advantage of being armed, which the Americans possess over the people of almost every other nation."

All other founders who discussed guns agreed. If any disagreed, writes professor William Van Alstyne, former member of the national board of the American Civil Liberties Union and one of the great figures in modern American constitutional law, "it remains one of the most closely guarded secrets of the eighteenth century, for no known writing from the period" says so.

Before the modern gun-control debate, no one denied that the amendment guarantees an individual right. In a 183-page review of all 19th-century references, criminologist David Kopel found not one denial. A typical explanation was that which a great Supreme Court justice offered in an 1834 book on the Constitution: "One of the ordinary modes by which tyrants accomplish their purpose without resistance is by disarming the people and making it an offense to keep arms."

Our founders were steeped in the belief of classical political philosophy that only an armed people could maintain their liberty.

From Locke and Montesquieu back to the ancient Greeks and Romans, liberal philosophers had repeated Aristotle's dicta that basic to tyrants is "mistrust of the people; hence they deprive them of arms" and that confiscation of the Athenians' arms led to the tyrannies of the Pisistratids and the Thirty.

Two fallacious arguments against the Second Amendment deserve mention.

First, during the Revolution, Tories were sometimes in some places denied the right to arms.

But if that is deemed to invalidate the constitutional right to arms, it proves entirely too much. For some Tories were also imprisoned, exiled and even executed for their beliefs (without trial).

No one would suggest that such examples prove that the First, Fourth and Fifth amendments do not guarantee freedom of speech, the rights to due process of law and jury trial, etc. If wartime denials of civil liberties are deemed the measure of our Bill of Rights, we have no civil liberties.

Second, it is argued that the right should not apply to modern small arms, which are supposedly so much deadlier than 18th-century guns. But the fact is that 18th-century firearms were far more deadly, given the difference in medical care.

Imagine that in 1789 someone fired a double-barreled shotgun into a crowded area. Fifty to 60 people would have been struck and at least 90 percent would have died. Now imagine that a modern crowd just stands there while someone fires four magazines from a 15-shot semiautomatic pistol into them. Assuming the same number of people are hit, fewer than 10 would die while the rest would recover.

Finally, if the Second Amendment is outmoded, it should be repealed, not evaded. Harvard law professors Alan Dershowitz and Laurence Tribe, who loathe guns, urge repeal, but emphasize that until that occurs, the amendment must be observed.

Incidentally, I have been denounced by the NRA for asserting the amendment allows many gun controls so long as the right of law-abiding, responsible adults to have guns is observed.



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Don B. Kates of Battle Ground is a retired constitutional law professor. He wrote the leading law review article on the Second Amendment and the treatise on it in the Encyclopedia of the American Constitution.

http://seattlepi.nwsource.com/opinion/74350_focus16pro.shtml