Friday, November 30, 2007

2nd Amendment protects individuals' right to bear arms

Always Has...Always Will


"The Monday editorial on the Second Amendment ("An overdue conversation") to the U.S. Constitution was sadly misinformed on both the amendment and the scholarship analyzing it. The overwhelming weight of peer-reviewed legal research has determined conclusively that the Second Amendment protects an individual right to keep and bear arms, and not a so-called "collective right" or a right to arm government-organized militias.

The editorial misses the mark by a mile in its attempt to dismiss the "standard model" for Second Amendment analysis as the product of "the lobby for gun makers and gun lovers." Distinguished constitutional scholars such as Laurence Tribe, Alan Dershowitz, Akil Amar, Eugene Volokh, Sanford Levinson and William Van Alstyne all concur in the individual rights view. None of these renowned law professors would ever be accused of carrying water for the National Rifle Association.

With the Founding Fathers on its side, the NRA has never needed to gin up support for the individual rights view. Instead, the NRA has always been content to point to the plain words of the framers that make clear that, as Patrick Henry said, "The great object is that every man be armed. Everyone who is able may have a gun."

The tiny minority of law review articles advocating for the collective rights view have typically been backed by the gun-ban lobby and have appeared in journals of little note. Tellingly, one of the most notorious instances of academic fraud in recent memory was perpetrated by a historian trying to rewrite history to undermine the importance of personal firearms ownership to the Founding Fathers. In 2000, Emory University professor Michael A. Bellesiles published "Arming America: The Origins of a National Gun Culture," which claimed that gun ownership was rare in American colonial households. When his research was discovered to be not only inaccurate but fraudulent, Bellesiles was forced to resign his professorship and was stripped of the prestigious Bancroft Prize, previously awarded for the book, by the trustees of Columbia University.

The 1939 case of United States vs. Miller may have been the last time the Supreme Court ruled on the meaning of the Second Amendment, but it was not the first time. While the Miller holding has been distorted over the years to suggest a collective rights view, there was no question that the amendment protected an individual right in the century and a half that followed the ratification of the Bill of Rights in 1791. The Supreme Court did not even have occasion to interpret the Second Amendment until 1876, in United States v. Cruikshank.

Cruikshank involved a conspiracy by Klansman to deprive blacks of their civil rights. The Supreme Court stated that "bearing arms for a lawful purpose" is a right that predates the Constitution and is not "in any manner dependent upon that instrument for its existence." However, it went on to rule that the amendment did not protect people "against any violation by their fellow-citizens of the rights it recognizes." The court only needed to address the question of whether the Second Amendment protected against violations of black Americans' right to keep and bear arms by Klansmen because it first recognized that the right protected was an individual one.

Though several lower courts have misinterpreted Miller to mean that the Second Amendment protects only a "collective right," the Supreme Court never held that it does not protect an individual right, and has suggested otherwise. In United States v. Verdugo-Urquidez, a 1990 case interpreting the meaning of "the people" in the Fourth Amendment, the high court observed that "the people" "seems to have been a term of art employed in select parts of the Constitution." "The people" protected by the Fourth Amendment were found to be the same individuals protected by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments.

In its review of the U.S. Court of Appeals decision striking down the District of Columbia's outright ban on possessing functional firearms in the home, the Supreme Court will have the chance to uphold the drafters' intent and rule that the Second Amendment protects an individual right. It remains to be seen if any justices will be swayed by the kind of emotion-laden rhetoric, shoddy scholarship, and revisionist history fostered by the gun-ban lobby and espoused in The Journal News' editorial."

Bravo, well done.

Not that it will convince those who fear firearms, because thats what is all boils down to really. When you consider the fact that majority of half the population is truly afraid of guns, a not insignificant percentile of the remaining half hasn't the nerve to own them, and the true devotees are by and large relative lazy, its a damned wonder we didn't repeal the 2nd Amendment long ago. Pretty fair testimony to those that DO stand tall though.

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