The Second Amendment Means What It SaysSixteen years ago, Professor Sanford Levinson wrote an insightful essay about the Second Amendment for the Yale Law Journal
That essay recently resurfaced thanks to an article in the Fredericksburg The Free-Lance Star, which reported that:
Issues involving guns have taken center stage in the cultural divide that separates Red and Blue America. Gun-control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms. However, history--buttressed by the Founders' clear understanding--dictates that the amendment guarantees this right to individual Americans.
This right is often strengthened by state constitutions, such as Ohio's which states, "The people have the right to bear arms for their defense and security."
The U.S. Constitution was written during a time when the War for Independence was fresh on everyone's mind. The framers knew full and well what could happen if a government grew too intrusive and ceased to be of the people, by the people, and for the people.
In an attempt to keep that from happening, the rights they deemed to be essential liberties endowed by the creator were innumerated, with the intention that these rights were off limits to govermental interference.
Sadly, their actions have become more or less a failure as our government becomes more and more intrusive into our personal lives. Certain elements of the Bill of Rights, such as the Second Amendment, have become out of vogue for certain politicians who would lead you to believe that they are no longer relevant in today's world, or that they don't really mean what they say.
As Professor Levinson points out, though, this is not the case. Everyone who truly cherishes liberty and personal freedom would do well to heed his words, as true today as they were sixteen years ago:
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar... is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.
A standard move of those legal analysts who wish to limit the Second Amendment's force is to focus on its "preamble" as setting out a restrictive purpose...This is not a wholly implausible reading, but one might ask why the 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.
One might argue (and some have) that the substantive right is one pertaining to a collective body--"the people"--rather than to individuals...Such an argument founders, however, upon examination of the text of the federal Bill of Rights itself and the usage there of the term "the people" in the First, Fourth, Ninth, and Tenth Amendments.
Although the record is suitably complicated, it seems tendentious to reject out of hand the argument that one purpose of the Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct.
Consider once more the preamble and its reference to the importance of a well-regulated militia...There is strong evidence that "militia" refers to all of the people, or at least all of those treated as full citizens of the community.
Scholars of the First Amendment have made us aware of the importance of John Trenchard and Thomas Gordon, whose Cato's Letter's were central to the formation of the American notion of freedom of the press. That notion includes what Vincent Blasi would come to call the "checking value" of a free press, which stands as a sturdy exposer of governmental misdeeds. Consider the possibility, though, that the ultimate "checking value" in a republican polity is the ability of an armed populace, presumptively motivated by a shared commitment to the common good, to resist governmental tyranny.
...just as ordinary citizens should participate actively in governmental decision-making through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professionalized peacekeepers, whether we call them standing armies or police.
Circumstances may well have changed in regard to individual defense, although we ignore at our political peril the good-faith belief of many Americans that they cannot rely on the police for protection against a variety of criminals.
As the Tianamen Square tragedy showed so graphically, AK-47's fall into that category of weapons, and that is why they are protected by the Second Amendment. It is simply silly to respond that small arms are irrelevant against nuclear-armed states: Witness contemporary Northern Ireland and the territories occupied by Israel, where the sophisticated weaponry of Great Britain and Israel have proved almost totally beside the point. The fact that these may not be pleasant examples does not affect the principal point, that a state facing a totally disarmed population is in a far better position, for good or for ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed.
For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.
http://www.ohioccw.org/modules.php?name=News&file=article&sid=3526*FW Note:How a politician stands on the Second Amendment tells you how he or she views you as an individual... as a trustworthy and productive citizen, or as part of an unruly crowd that needs to be lorded over, controlled, supervised, and taken care of. ~~
Representative Suzanna Gratia Hupp (TX)Never Forget, even for an instant, that the one and only reason anybody has for taking your gun away is to make you weaker than he is, so he can do something to you that you wouldn't allow him to do if you were equipped to prevent it. This goes for burglars, muggers, and rapists, and even more so for policemen, bureaucrats, and politicians."-
Alexander HopeIs this message getting through?
:wink:
