Sunday, May 01, 2005

"Americans Should Have the Right to Bear Arms, But Not the Right to Arm Bears."

By: UnrepentantNewDealer

(Cool points go to the first person to correctly identify the origin of that punchline.)

Yes, it's hard to believe IVIC has gone on for more than a year and a half now with nary a mention of gun control, at least to the best of my recollection. We've squabbled over capital punishment, affirmative action, abortion, any number of hot-button issues. Yet the poor issue of gun control has been left out in the cold. This neglect ends today.

"Guns-rights" enthusiasts always point to the Second Amendment when justifying their opposition to even the most benign gun control laws. The Second Amendment, they say, protects the right of every American to own any and every kind of firearm and other weapon.

Yet, as I found out when I did a paper on the subject for AP Engish in 11th grade, it's not quite that simple. The Second Amendment states "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." The tortured wording of this one sentense has caused generations of fierce debate. To me, the best reading appears to be "Because a well regulated militia is necessary to the security of a free state, the federal government shall not infringe on the right of miltia members to keep and bear arms."

It's important to keep it in context. The Revolutionary War had been fought largely with state militia. They were farmers who dropped the plowshare for the sword, citizen-soldiers able to pick up their hunting rifle at a moment's notice for the defense of the state. In a serious fight, these untrained "minutemen" were generally unreliable, especially as compared with the better trained soldiers of the Continental Army. But years of British misrule had bred in many colonists a distrust of any standing professional army. Militias, though ineffective more often than not, were romanticized by Jefferson and others. The Second Amendment seems to have been inserted in the Constitution as a sop to the Jeffersonians who worried about enabling a powerful federal government and wanted to continue to have the ability to call out the state milita if necessary to check federal power if it was put to tyrannical uses. It was a measure inserted just in case the federal government ever tried to subjugate the states.

Those "well-regulated militias" are still around today, called up by state governors at a moment's notice in times of emergency. They are the National Guard. Today however, war is fought with weapons with considerably more firepower than a hunting rifle. To protect public safety, the arms the Second Amendment protects are now locked up in armories protected by the National Guard.

Back in the late Eighteenth Century, every able-bodied white male citizen between the ages of 18 and 45 with any kind of gun was a part of the militia. Militia membership was one of the duties of good citizenship. Today only those citizens who have gone through training can be in the militia. And at the end of the day, they can't even take their weapon home. Obviously, things have changed a great deal since the Bill of Rights was drafted.

"Strict-constructionists" pontificate on the need to determine the original intent of the framers. Yet, the Constitution is a living document that adjusts to the times without losing its essential protections. That's how the Supreme Court has viewed the matter of gun control laws for more than 60 years. As the framers used the word "citizen" to designate militia member, and as most people considered citizens today are not members of the modern-day state militias, the courts have held that the Second Amendment does not protect the right of the non-militia member to own a gun.

The Supreme Court ruled in U.S. v. Miller in 1939 that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of state militias. The clincher is that in two separate cases in 1965 and 1990 the Supreme Court stated that the "well-regulated militia" is today's National Guard.

According to the Brady Campaign,

"In the early 1980s, the Supreme Court addressed the Second Amendment issue again, after the town of Morton Grove, Illinois, passed an ordinance banning handguns (making certain reasonable exceptions for law enforcement, the military, and collectors). After the town was sued on Second Amendment grounds, the Illinois Supreme Court and the U.S. Seventh Circuit Court of Appeals ruled that not only was the ordinance valid, but there was no individual right to keep and bear arms under the Second Amendment (Quillici v. Morton Grove). In October 1983, the U.S. Supreme Court declined to hear an appeal of this ruling, allowing the lower court rulings to stand."

I don't quibble with the belief that Americans have a constitutionally-protected right to own firearms. I share that belief myself. I just don't think any reasonable reading of the Second Amendment would lead to the conclusion that it is protected by that particular amendment.

The Ninth Amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It's simply a matter of space. If every conceivable right had to be specifically enumerated in an amendment, the Bill of Rights would have had hundreds of amendments. Among these non-enumerated rights the Founding Fathers would surely include the right to individual gun ownership. Guns were used, then as now, for hunting and self-defense. The gun has always been a vital part of American culture, particularly on the frontier. The fact that the Framers didn't specifically include the right to bear arms in the Bill of Rights doesn't mean we don't have that right.

Why is this distinction important? Second Amendment, Ninth Amendment, what does it matter? The Second Amendment has that fateful clause "shall not be infringed." No other Amendment has such forceful language. Guns-rights groups use this clause to justify opposing all gun control measures. If the Second Amendment truly does protect the right of the individual to own firearms, then any law "infringing" on that right for any reason would be unconstituional. If, however, the Ninth Amendment, not the Second, protects that right, then reasonable gun control laws are perfectly constitutional. After all, the First Amendment right to free speech has restrictions. You can't yell "fire" in a crowded theater, for example.

Governments could not exist if they did not restrict personal freedoms in some way. Certain freedoms are ceded to the government for security. Obviously the government should only restrict rights to the minimum amount necessary to protect the "common welfare." Thus, the right to own a firearm to protect yourself does not give you the right to attempt to overthrow the government. Additionally, your rights do not extend to infringing on the rights of others. So, the government can restrict firearm rights by prohibiting certain types of weapons from private use.

After all, if you follow the NRA's logic to its conclusion, if every American has the right to own any kind of weapon, then the Second Amendment protects my "right" to own a nuclear weapon. Something tells me the Framers wouldn't approve of such a "loose-constructionist" approach to the Constitution. The common interest vastly outweighs whatever right I might have to possess my very own 50-megaton hydrogen bomb.

Reasonable gun control laws, enacted in the public interest, seem unobjectionable from a constutional standpoint. Surely it's in the public interest to prohibit ownership of guns with bullets that can pierce armor-plating and bulletproof vests, known popularly as "cop-killer bullets" as that is their only real use. Surely it is also in the public interest to prohibit posession of assault rifles. I can only think of two legitimate reasons for a private citizen to own a gun--hunting and self-defense-- for neither of which is an assualt rifle generally necessary. (As Wesley Clark said in 2003, "You like assault rifles? Join the Army." On the other hand, concealed weapons seem like they could assist quite nicely in self-defense.)

These are merely my opinions, of course. There can be legitimate debate on the necessity and utility of various pieces of gun control legislation. But let's leave the hypercharged language of the Second Amendment out of it. It only coursens our public debate.