by Stephen P. Halbrook
The Second Amendment to the U.S. Constitution protects an individual right to keep and bear arms, explained U.S. Attorney General John Ashcroft, by letter dated May 17, 2001, to James Jay Baker, Executive Director of the National Rifle Association's Institute for Legislative Action. The Violence Policy Center, a lobbying organization which seeks to ban guns, has responded with a superficial attack entitled Shot Full of Holes: Deconstructing John Ashcroft's Second Amendment.
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The VPC document combines flawed historical interpretation with hysteria, such as that Ashcroft's views would protect "armed career criminals" in their deadly pursuits. While the Fourth Amendment right against unreasonable search and seizure and other Bill of Rights guarantees protect even criminals, no one disputes that such criminals have no right to keep and bear arms. Indeed, the Ashcroft Justice Department has launched a vigorous campaign -- absent in the Reno Department -- against felons who possess firearms. On assuming office, Attorney General Ashcroft took an oath to support and defend the Constitution, which includes the Second Amendment. From the standpoint of legal ethics, it is admirable when prosecuting authorities candidly concede that they or their predecessors took an erroneous position regarding the law, for their duty is to see that justice is done, not to win cases at any price. Yet VPC has filed an ethics complaint against Ashcroft for expressing in good faith (and with persuasive documentation) an opinion about a provision of the Bill of Rights. |
VPC purports to refute Ashcroft's two-page letter on the Second Amendment, but VPC's silence on the Constitution's text is deafening. The Second Amendment provides: "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed." This "right of the people" is not limited, as VPC claims, to actual service in a state military force. The Framers knew how to limit a right to actual service -- the Fifth Amendment provides for indictment by grand jury "except in cases arising . . . in the militia, when in actual service . . . ."
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The declaration for a well regulated militia expresses the serious federal principle that the ultimate purpose of the Second Amendment is to secure a free state, not simply to guarantee sport and recreation. Such a militia is encouraged by recognition of the people's right to keep and bear arms. The Second Amendment declares a "right of the people," not a "power of the states." Only individuals have "rights," and only governmental units have "powers." The state militia power is declared in Article I, Section 8 of the Constitution, which "reserv(es) to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress . . . ."
The Ashcroft letter begins by noting that comment would not be made on existing litigation. VPC launched an attack on the opinion by Judge Cummings in United States v. Emerson, 46 F. Supp. 598 (N.D. Tex. 1999), the appeal of which is pending in the Fifth Circuit. This opinion is unequaled in its scholarship and analysis in federal jurisprudence concerning the Second Amendment. The court held the Second Amendment to invalidate a federal law which prohibits possession of a firearm by a person against whom a domestic violence restraining order has been entered without benefit of a hearing and with no factual finding of danger by the court. Such orders are routinely entered in Texas divorce cases. [Editor's Note: On October 16, 2001, a three judge panel of the Fifth Circut Court upheld the interpretation of the Second Amendment Judge Cummings handed down in U.S. v. Emerson.]
VPC points to federal decisions which state that the Second Amendment only protects a "collective" state power to maintain militias. Such statements are typically dicta in cases upholding convictions against felons in possession of firearms. No federal court has ever upheld a general prohibition by law-abiding citizens of firearms. While the lack of serious judicial treatment of the Second Amendment resembles the shoddy treatment of the First Amendment through the 1920s, the Fifth Circuit noted in a previous case:
It is also conceivable that some applications of section 922(q) might raise Second Amendment concerns. Lopez does not raise the Second Amendment and thus we do not now consider it. Nevertheless, this orphan of the Bill of Rights may be something of a brooding omnipresence here. For an argument that the Second Amendment should be taken seriously, see Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
United States v. Lopez, 2 F. 3d 1342, 1364 n.46 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995) (declaring unconstitutional federal prohibition on possession of a firearm in a school zone).
Contrary to VPC, it can hardly be said that under Fifth Circuit precedent the Second Amendment does not protect individuals. VPC cites Kostmayer v. Department of Treasury, 178 F.3d 1291 (5th Cir.), cert. denied, 528 U.S. 928 (1999), but that opinion is unpublished and, according to circuit rules, may not be cited as precedent. VPC also cites some district courts that have rejected Emerson. The fact remains that Emerson is the only decision squarely to face the music -- the text of the Second Amendment, the Framers' intent, and the Supreme Court decisions.
Attorney General Ashcroft states that "the text and the original intent of the Second Amendment clearly protect the of right of individuals to keep and bear firearms." VPC claims that this contradicts United States v. Miller, 307 U.S. 174 (1939), but Miller held only that absent evidence in the trial court that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."1 Id. at 178. The test was not whether the person in possession of the arm was a member of a formal militia unit, but whether the arm "at this time" is "ordinary military equipment" or its use "could" potentially assist in the common defense. Yet VPC cites this page for the blatant assertion that "Miller holds that such a right is not legitimately transformed into a right of any individual to acquire and possess weapons."
Referring to the militia clause of the Constitution, Miller stated that "to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." Id. at 178. Historically "the Militia comprised all males physically capable of acting in concert for the common defense," and "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Id. at 179. Contrary to VPC, the Second Amendment's two clauses complement each other: guaranteeing the right of the people to keep and bear arms ensures that a well regulated militia will be available.
While Miller does not support its position, VPC argues that this single precedent resolves everything for all time -- a curious assumption when one considers the ever evolving case law on other constitutional provisions. VPC cites Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 841 (1992), but that case states:
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9. As the second Justice Harlan recognized:
"(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution . . . (such as) the freedom of speech, press, and religion; the right to keep and bear arms. . . . It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . . ."
Thus, the right to keep and bear arms is characterized as one of the "specific guarantees" of the Constitution, and no restriction to military service is mentioned.
Ashcroft's letter continues that "some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias . . . ." VPC claims that this "some" includes the Supreme Court, which is false, along with certain "eminent scholars." Not a single one of these "eminent scholars" has published a book on the Second Amendment, and the Standard Model among scholars is the individual rights interpretation. No scholar or court has argued seriously that the Second Amendment guarantees a "right" to join or bear arms in the National Guard or a state militia -- such organizations make their own recruitment and employment decisions. This argument, contrived in the twentieth century to emasculate the Second Amendment, has never been taken seriously on the merits.
The Standard Model is buttressed by two books and scores of scholarly articles. Concurring in Printz v. United States, 521 U.S. 898, 938-39 n.2 (1997), Justice Thomas cited some of them:
Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). . . .
As Justice Thomas further noted, Miller "did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment." 521 U.S. at 938 n.1. "Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.'" Id. at 938, quoting 3 J. Story, Commentaries sec. 1890, p. 746 (1833).
Attorney General Ashcroft's letter also paraphrases references to the Second Amendment in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Court made clear that all law-abiding Americans are protected by the Second Amendment as follows:
"The people" seems to have been a term of art employed in select parts of the Constitution. . . . The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"); Art. I, sec. 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second year by the People of the several States")(emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
VPC responds with the assertion that Verdugo-Urquidez does not say "whether the Second Amendment protects either the right of the 'people' to bear arms in military service under state regulation or an individual right of the 'people' to bear arms . . . ." While the Supreme Court has upheld conscription into the military, no court has ever recognized an enforceable "right" to join the National Guard or a state force, regardless of whether the military force accepts the applicant. And the language of Verdugo-Urquidez could not be clearer: "the people" are the same in the First and Second Amendments.
Ashcroft next turns to the Framers, remarking that "this view of the text comports with the all but unanimous understanding of the Founding Fathers." He cites four references, one in the Revolutionary period and three in 1788, the period of the Constitution's ratification. VPC complains that the references were not in 1791, the year the Second Amendment was finally ratified. Yet the Bill of Rights is explained by the rights claimed by the colonists during the Revolution, by the explanations of the Constitution's proponents, and by the demands for a bill of rights during its ratification period, particularly in 1788. The Bill of Rights was proposed and debated in Congress in 1789. The following are the four references.
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be debarred the use of arms." -- Thomas Jefferson |
First, Thomas Jefferson's Proposed Virginia Constitution (1776) would have provided: "No freeman shall ever be debarred the use of arms." 1 Jefferson, Papers 344-45 (Boyd ed. 1951). He also mentioned freedom of the press and religion. VPC suggests that this only shows that the Framers knew how to describe the right more expansively. Yet neither version of the right limited it to military service.
Second, in The Federalist No. 46, James Madison discusses how the people may maintain a free society against an oppressive government. He contends that "the ultimate authority . . . resides in the people alone." Against a federal standing army "would be opposed a militia amounting to near half a million citizens with arms in their hands." Alluding to "the advantage of being armed, which the Americans possess over the people of almost every other nation," Madison continued: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." 15 Documentary History of the Ratification of the Constitution 492-93 (1986).
Try as it might, VPC cannot come to terms with this model of an armed populace. Europe's monarchies disarmed their subjects but the Americans had "the advantage of being armed." VPC asserts that this quote does not address whether the people can even keep arms in their homes or use them for self defense. That just does not square with the phrase, "to trust the people with arms." Here and elsewhere, VPC creates the false dilemma that arms may be borne for collective or individual defense, but not both. The Framers intended otherwise. As Rep. Roger Sherman declared in militia debates in 1790: "He conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded." 14 Debates in the House of Representatives, eds. William Charles DiGiacomantonio et al. (Baltimore: The Johns Hopkins University Press, 1995), 92-3.
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Third, Ashcroft cited The Federalist No. 29 by Alexander Hamilton. VPC quotes a discussion about the militia explicitly reciting the federal-state militia powers in Article I, sec. 8 of the Constitution. VPC again refers to "the right of a citizen to be part of the militia," but the quote shows that the state power to have a militia is in Article I, sec. 8, not the Second Amendment. VPC ignores the critical language in which Hamilton expounded the argument that it would be wrong for a government to require:
the great body of yeomanry and of the other classes of citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia. . . .Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped. . . .
. . . This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens.
15 Documentary History of the Ratification of the Constitution 230 (1986). A "large body of citizens," armed and "ready to defend their rights"? This language is fatal to VPC's thesis.
Fourth, Ashcroft quotes George Mason at the Virginia ratification convention in 1788: "I ask, sir, what is the militia? It is the whole people . . . To disarm the people is the best and most effectual way to enslave them." VPC claims Mason is "misquoted" because the two statements were made two days apart, but both quotations are authentic and relate to the same subject. Mason recalled:
Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man (Sir William Keith), who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. (Here Mr. Mason quoted sundry passages to this effect.) This was a most iniquitous project.
3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 380 (1836).
Thus, Mason denounced "disarm(ing) the people" either "openly" or by "neglecting the militia." Sir William Keith "question'd how far it would be consistent with good Policy, to accustom all the able Men in the Colonies to be well exercised in Arms," and expressed fear of "Rebellion." Sir William Keith, A Collection of Papers and Other Tracts 180 (London 1740). Again, it is clear that Mason was concerned -- as is the Second Amendment &-- both with encouraging a popular militia and guaranteeing the personal right to possess arms.
Consistent with these themes, Mason asked: "Who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table (the Constitution) gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor . . . ." 3 J. Elliot, Debates at 425-46. For Mason, promoting a militia of the whole people would be met in part by guaranteeing the individual right of all people to keep and bear arms. Accordingly, Mason and others persuaded the Virginia convention to demand a federal bill of rights asserting "the essential and unalienable rights of the people" included the following: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state . . . ." Id. at 657, 659.
Incredibly, VPC asserts that "Mason took the position that a national government should have the power to disarm the people," and that "he understood the general population will be unarmed." VPC has completely turned upside down the Framers' explanations and objectives.
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The Ashcroft letter was hardly intended to be a definitive account. It did not mention, for instance, the analysis by Federalist writer Tench Coxe published just after Madison introduced the Bill of Rights in Congress. Coxe stated of what became the Second Amendment: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed . . . in their right to keep and bear their private arms." A Pennsylvanian,"Remarks on the First Part of the Amendments to the Federal Constitution," Federal Gazette, June 18, 1789, at 2, col. 1. Madison praised Coxe for his analysis. 12 Madison Papers 257 (1978).
VPC cannot cite a single one of the Founding Fathers who asserted its argument, for not one did so. VPC refers to an obscure comment on a tariff for firearms imports in Hamilton's Report on the Subject of Manufactures, but it has no bearing on the Second Amendment.
The Ashcroft letter continues: "In early decisions, the United States Supreme Court routinely indicated that the right protected by the Second Amendment applied to individuals." Four cases are cited, each one of which presupposed a personal right and none of which stated that the right exists only during active militia service. VPC's attempt to spin these cases fails. Each case is discussed below.
Logan v. United States, 144 U.S. 263, 281 (1892), concerned whether a federal prisoner has "a right secured to him by the Constitution or laws" to be protected against lawless violence. The Court summarized its prior holding in United States v. Cruikshank, 92 U.S. 542, 552-53 (1876) as follows:
1st. It was held that the First Amendment of the Constitution, by which it was ordained that Congress should make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances, did not grant to the people the right peaceably to assemble for lawful purposes, but recognized that right as already existing, and did not guarantee its continuance except as against acts of Congress; and therefore the general right was not a right secured by the Constitution of the United States. . . .2d. It was held that the Second Amendment of the Constitution, declaring that "the right of the people to keep and bear arms shall not be infringed," was equally limited in its scope.
Logan, 144 U.S. at 286-87.
In short, the rights to assemble and to keep and bear arms were not "granted" by the Constitution because the Constitution recognized those rights "as already existing." Similarly, "the rights of life and liberty were not granted by the Constitution, but were natural and inalienable rights of man . . . ." However, since the Fourteenth Amendment declared only that no State shall deprive any person of life, liberty or property, without due process of law, any deprivation by private persons could be prosecuted only by the states. Id. at 287. Accordingly, Cruikshank held that private individuals could not be indicted under federal law for disrupting an assembly, seizing firearms, and murdering the victims. See "The Cruikshank Case, from Trial to the Supreme Court," in Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (Westport, Conn.: Praeger Publishers, 1998), 159-82. Similarly, Logan treats the First and Second Amendments equally and does not question the individual character of the right to keep and bear arms.
Miller v. Texas, 153 U.S. 535 (1893), the next case cited by Ashcroft, likewise presupposed that the Second Amendment was a private right and does not mention any requirement of militia duty. The Court held that the Fourth Amendment right against unreasonable search and seizure, like the Second Amendment, limited federal action but did not apply directly to the states. The Court refused to consider whether the Second and Fourth Amendments were incorporated into the Fourteenth Amendment and thus limited the states, because the petitioner had not raised that issue in the courts below. VPC completely misses this clear holding by the Court.
The opinion in Miller v. Texas includes the following comment:
In his motion for a rehearing, however, defendant claimed that the law of the State of Texas forbidding the carrying of weapons, and authorizing the arrest without warrant of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the Second and Fourth Amendments to the Constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions . . . .
Id. at 538. Given that "the restrictions of these amendments operate only upon the Federal power, and have no reference whatever to proceedings in state courts," id., it was hardly surprising that the Court decided that state laws could not violate the Second and Fourth Amendments. VPC's assertion that the Court somehow upheld a gun control law is simply false.
Most critically, Miller refused to consider whether the Fourteenth Amendment incorporates the Second and Fourth Amendments because the issue was raised too late:
And if the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. . . . A privilege or immunity under the Constitution of the United States cannot be set up here . . . when suggested for the first time in a petition for rehearing after judgment.
Id. at 538-39. Contrary to VPC, the Court did not consider whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement. See Leonardatos, Kopel, and Halbrook, "Miller versus Texas," 9 Journal of Law and Policy, No. 3, 737, 761-66 (2001).
Ashcroft next cites Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897), which states:
The law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors, and which from time immemorial had been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by law prohibiting the carrying of concealed weapons . . . .
Surely VPC does not suggest that the power of states to maintain militias is a guarantee which we "inherited from our English ancestors," given that England did not even have states! To the contrary, the right of the people to keep and bear arms has existed "from time immemorial" and is "incorporat(ed). . . into the fundamental law." And it would be nonsensical to say that the right to bear arms is limited to military duty -- the exception for carrying concealed weapons applies to the private carrying of arms, not to carrying arms in the militia. Once again, the Supreme Court's clear language precludes VPC's spin.
Finally, Ashcroft cites Maxwell v. Dow, 176 U.S. 581, 597 (1900), which held that the privileges-and-immunities clause of the Fourteenth Amendment does not incorporate the right to jury trial. Among precedents holding that various Bill of Rights guarantees do not apply directly to the states was the following:
In Presser v. Illinois, 116 U.S. 252 (1886), it was held that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the National Government, and not of the States. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the National Government, the States could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.
Maxwell, 176 U.S. at 597.
Indeed, Presser stated that an ordinance requiring a permit for a parade with arms in a city does "not infringe the right of the people to keep and bear arms," and in any event the Second Amendment limited Congress, not the states. 116 U.S. at 265. Parading in arms went beyond the individual right of keeping and bearing of arms as well as the First Amendment right of assembly. Id. at 267. It is noteworthy that the Court did not suggest -- as VPC would have it -- that the Second Amendment did not protect the paraders because they were not on official state militia duty. Instead, when referring to "all citizens capable of bearing arms" as the "reserve militia," the Court stated that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms . . . ." Id. at 265. In other words, the militia power was not to be found in the Second Amendment but elsewhere.2
It is noteworthy that Maxwell referred to "all the privileges and immunities set forth in the first eight amendments to the Federal Constitution,"176 U.S. at 600, and surely the state militia power cannot be characterized as a "privilege or immunity" -- only individuals have privileges and immunities. Similarly, in his dissent, Justice Harlan stated "that the great men who laid the foundations of our Government regarded the preservation of the privileges and immunities specified in the first ten amendments as vital to the personal security of American citizens." Id. at 615.
Nineteenth century cases held that the Bill of Rights did not apply directly to the states, and some held that it did not apply to the states through the Fourteenth Amendment's privileges-and-immunities clause. In the twentieth century, the Supreme Court has held most Bill of Rights guarantees applicable to the states through the Fourteenth Amendment's due process clause. Contrary to VPC, the Court has never held that the Second Amendment is not incorporated into the Fourteenth Amendment. Further, in each of the above cases, Ashcroft was correct in stating that the Court "routinely indicated that the right protected by the Second Amendment applied to individuals."
The Ashcroft letter continues: "Justice Story embraced the same view in his influential Commentaries on the Constitution." 3 J. Story, Commentaries on the Constitution sec. 1890, p. 746 (1833), states: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.." In support of this statement, Story cites 1 St. George Tucker, Blackstone's Commentaries 300 (1803), which explains:
The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game . . . . So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Story further cited William Rawle, A View of the Constitution, ch. 10, p. 125 (1829), which states: "No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people." Story's statement and his citation to Tucker and Rawle leave no question that the Second Amendment protects individuals from being disarmed by the government.
Story also discussed the need for a militia, which -- contrary to VPC -- is promoted by a general right to keep and bear arms. Indeed, Story wrote elsewhere: "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 . . . ." J. Story, A Familiar Exposition of the Constitution of the United States 264 (1893). That is, of course, VPC's chief objective.
Ashcroft writes: "It is the view that was adopted by United States Attorney General Homer Cummings before Congress in testifying about the constitutionality of the first federal gun control statute, the National Firearms Act of 1934." See The National Firearms Act of 1934: Hearings on H.R. 9066 Before the House Comm. On Ways and Means, 73rd Cong. 6, 13, 19 (1934). Specifically, Rep. David J. Lewis confessed that "I have never quite understood how the laws of the various States (on concealed weapons) have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms." Id. at 19. He asked about the bill to require taxation and registration of machine guns, "I was curious to know how we escaped that provision in the Constitution." The following discussion ensued:
Attorney General Cummings. Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "We will tax the machine gun," and when you say that "the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated" you are easily within the law.Mr. Lewis. In other words, it does not amount to prohibition, but allows of regulation.
Attorney General Cummings. That is the idea. We have studied that very carefully.
Id.
Thus, the discussion was over how certain narrowly-defined firearms could be regulated consistent with the Second Amendment, not whether firearms could be prohibited from all persons not on militia duty. In yet another instance, VPC has falsely accused Ashcroft of error.
VPC faults Ashcroft for taking a different view from ex-Solicitor General Seth Waxman, who discusses neither the text nor the intent of the Second Amendment, and a Nixon-era Office of Legal Counsel opinion with the bare assertion that the Second Amendment, when "first presented to the Congress," protected "the right of the States to maintain a militia." No source is cited for the latter statement because none exists. VPC refers to a brief signed by former Solicitor General Kenneth Starr stating that Miller held that "the possession of that firearm did not fall within the rights guaranteed by the Second Amendment." Yet arguing that the Second Amendment does not protect possession of one specific type of firearm is not equivalent to arguing that it does not protect an individual right to possess any firearm.
Ashcroft continues: "As recently as 1986, the United States Congress and President Ronald Reagan explicitly adopted this view in the Firearms Owners' Protection Act. See Pub. L. No. 99-308, sec. 1 (b) (1986)." That Act includes the following: "The Congress finds that -- (1) the rights of citizens -- (A) to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies." This finding was amply supported by The Right to Keep and Bear Arms: Report of the Subcommittee on the Constitution, Senate Judiciary Committee, 97th Cong., 2d Sess., 12 (1982), which found:
The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.
VPC writes as if Congress' 1986 declaration was an anomaly, but in fact Congress has passed similar declarations in pursuit of its duty to interpret the Constitution when it passes legislation. Following the Civil War, the Southern States reenacted the slave codes which made it illegal for blacks to exercise basic civil rights, including the possession of firearms. Congress responded by passing the Freedmen's Bureau Act of 1866, which provided:
the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.
14 Statutes at Large 176-77 (1866). This was approved by the same votes of over two-thirds of members of Congress who voted in favor of the Fourteenth Amendment. Senator Jacob Howard, when introducing the Amendment, explained that its purpose was to protect "personal rights" such as "the right to keep and bear arms" from State infringement. Cong. Globe, 39th Cong., 1st Sess., 2765 (May 23, 1866). See "The Civil Rights and Freedmen's Bureau Acts and the Proposal of the Fourteenth Amendment," in Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1-55.
In 1941, just before Pearl Harbor, Congress authorized the President to requisition property from the private sector on payment of fair compensation. The Property Requisition Act prohibited any construction "(1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), (or) (2) to impair or infringe in any manner the right of any individual to keep and bear arms . . . ." P.L. 274, 77th Cong., 1st Sess., Ch. 445, 55 Stat., pt. 1, 742 (1941). A committee report explained:
In view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, our committee deem it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms. . . . There is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.
Rept. No. 1120 (to accompany S. 1579), House Committee on Military Affairs, 77th Cong., 1st Sess., at 2 (Aug. 4, 1941). Nazi Germany was at that time disarming Jews and conquered people and committing crimes against humanity.
In short, as a co-equal branch of government, the Congress has enacted declarations making clear that the Second Amendment protects a fundamental civil right. Presidents Franklin Roosevelt and Ronald Reagan respectively signed two of these enactments. VPC's implication that such declarations are unprecedented and of no weight simply ignores Congress' historic and constitutional duty to interpret the Constitution in the first instance.
Ashcroft writes: "Significantly, the individual rights view embraced by the preponderance of legal scholarship on the subject, which, I note, includes articles by academics on both ends of the political spectrum." He cites the law review articles by Professors Van Alstyne, Amar, Cottrol & Diamond, Levinson, and Kates which are referenced above by Justice Thomas. VPC deletes these references. It tries but cannot refute what is accepted as the Standard Model of the Second Amendment as an individual right. Hardly any of the professors cited by VPC who lent their names to the amicus brief in Emerson have published anything on the Second Amendment.
Ashcroft comments: "the Constitution protects the private ownership of firearms for lawful purposes." "Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests . . . ." VPC objects to treating the right to keep and bear arms as a fundamental right which evokes the "compelling state interest" test. Yet "the key to discovering whether (a right) is 'fundamental'" lies in assessing whether it is "explicitly or implicitly guaranteed by the Constitution." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33 (1973). The Second Amendment is every bit a part of the Constitution as is the First Amendment.
VPC suggests that "compelling state interest" standard would never be overcome, but ignores the most obvious case which the rest of Ashcroft's sentence describes and which VPC deletes: "such as prohibiting firearms ownership by convicted felons . . . ." Ashcroft adds: "As Samuel Adams explained at the Massachusetts ratifying convention, the proposed Constitution should 'never (be) construed . . . to prevent the people of the United States who are peaceable citizens, from keeping their own arms.'" 2 B. Schwartz, The Bill of Rights: A Documentary History 675 (1971) (emphasis added).
VPC frivolously questions whether Adams even made this proposal. The historical record is clear that he did. Debates of the Massachusetts Convention of 1788, 86-87, 266 (Boston, 1856); 6 Documentary History of the Ratification of the Constitution, eds. John P. Kaminski and Gaspare J. Saladino (Madison: State Historical Society of Wisconsin, 2000), 1452-53. Moreover, Adams' proposal that the Constitution would not be construed to prevent the people "from keeping their own arms" was contemporaneously interpreted to embody the House committee draft of what became the Second Amendment.3
VPC concludes that several of Ashcroft's quotes were the same as presented by the district court in Emerson. This is hardly surprising, in that these are significant statements in the history of the Second Amendment. VPC blames Ashcroft for recognizing this historical reality rather than turning a blind eye to it. VPC ignores that Ashcroft swore to uphold the Constitution, not to win cases through dishonesty.
1 Since no factual record was made in the trial court that a short-barreled shotgun could have militia uses, the Court did not consider whether the tax and related registration requirements of the National Firearms Act violated the Second Amendment. However, the Court has held of a newspaper tax: "It is a license tax--a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v. Pennsylvania, 319 U.S. 106, 113 (1943). return
2 See Halbrook, The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, 76 University of Detroit Mercy Law Review 943 (Summer 1999). return
3"The following 'amendments' to the new constitution of these United States, were introduced to the convention of this commonwealth by . . . SAMUEL ADAMS . . . (E)very one of the intended alterations but one (i.e., proscription of standing armies) have been already reported by the committee of the House of Representatives, and most probably will be adopted by the federal legislature." From the Boston Independent Chronicle, Independent Gazetteer, Aug. 20, 1789, at 2, col. 2 (reprinting Adams' proposal). return
Stephen P. Halbrook is a distinguished author and lawyer who has written extensively on the Constitution and the Second Amendment in particular. He is the author of That Every Man Be Armed: The Evolution of a Constitutional Right, (Independent Institute, 2000) the most comprehensive work ever written on the right to keep and bear arms. |
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