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Friday, February 10, 2006 

There's This Thing Called the Second Amendment...

Prof. Althouse has a post about a lecture and panel discussion at UW about the Second Amendment. The lecturer, Sanford Levinson, wrote an article called "The Embarrassing Second Amendment", which is why this talk is titled "Is the Second Amendment Still Embarrassing (and for Whom)?". The basic idea behind the article and its title is this...
Thus the title of this essay--The Embarrassing Second Amendment--for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU).
Levinson goes on to discuss how legal academia has done everything they can to ignore the Second Amendment altogether.

"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."
There it is, in case you've blocked it out entirely and forgot the words.

One of the favored arguments of gun control advocates and Second Amendment haters is that the text only refers to state militias. That's the view that the ACLU likes to take. Here's what Levinson has to say...
...one might ask why the (p.645)Framers did not simply say something like "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact meant to do something else. Moreover, we might ask if ordinary readers of late 18th Century legal prose would have interpreted it as meaning something else.
The problem that I have with that view is that it disregards the remaining language. "...the right of the people to keep and bear Arms, shall not be infringed." The right itself resides with the people.

Who is "the Militia"? According to the debates at the Constitutional Convention, the history and laws in the states (and previously colonies), and the writings of commentators at the time, the Militia is, as Justice McReynolds reiterated, "...comprised [of] all males physically capable of acting in concert for the common defense." Yes, you are the Militia. Congratulations on your position.

The Founders discussed the right to bear arms greatly. In Federalist 46, James Madison stated that the Constitution preserves "the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." Look at Jefferson's statements: "No freeman shall ever be debarred the use of arms." and "Let your gun therefore be your constant companion of your walks." Then there is Justice Joseph Story of the Supreme Court who said "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

I am a firm believer in the idea that a right is a right. A right is not a privilege. A right is inherent in every person; a privilege is something granted by a higher power (like a government). We the people have a right to free speech, a right to freely exercise our religion, a right to bear arms, etc. They are our rights. Neither the government nor another person can take those away from us. To do so would be tyranny.

There is a a legal doctrine known as incorporation. Through the Due Process Clause of the 14th Amendment, incorporation applies the Bill of Rights to the states. One would think that incorporation would apply the Second Amendment to the states. Unfortunately, no. The Supreme Court has been selectively and gradually incorporating rights. Someday, there will be a Second Amendment incorporation case before the Court, and someday there will be five votes to incorporate it. I have no idea what the results will be. I'm assuming that there will be many court challenges to state laws. Maybe this will finally force a frank discussion of what the Second Amendment truly means.

In his opinion in Silveira v Lockyer, Judge Kozinski said "It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us." The Second Amendment exists. Deal with it.

Although I was surfing around on an entirely different topic, I found your blog. I have rarely, if ever, heard such a cogent discourse on the specifics of the Second Amendment or how it has been abrogated by the laws of individual states or communities. I am a person who fervently believes that the oringinal intention of said amendment is to keep our own government from becoming a juggernaut uncontrollable by common man, and incidentally a safeguard of life and property. I grew up owning and using a rifle from age six, many times filling the home cooking pots with my favorite breakfast, squirrel gravy and biscuits -- a culinary delight that should be tried by every American worthy of the name.
I have read all posted comments and enjoyed your observations on an eclectic collection of subjects. Kudos to you.
Ad astra.

Thanks for the praise. I think that people who have grown up around guns and have had them as a part of their life tend to view the Second Amendment with great importance. The most pro-gun control (or gun ban) folks probably haven't ever even held a gun. It seems like an irrational fear of an inanimate object that's based on ignorance. I have no empirical basis for this but have noticed anecdotally.

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