The Resurrection of the Second Amendment
by Peter Alan Kasler
The 1980s have seen enormous new research on the origins of the
constitutional right to arms. As a result, it is no longer intellectually
credible to deny that the Second Amendment guarantees to every
responsible, law-abiding adult the right to own handguns, rifles, and
shotguns. These days the only people who deny the individual right to
arms are the under- or ill-informed and the anti-gun lobby. They dismiss
the right afforded by the Second Amendment as a "collective right,"
claiming that it is a "right" which cannot be asserted by individuals for
themselves or on behalf of the people collectively. This is, of course,
nonsense A right that no one can enforce is no right at all. The
meaningless "collective right" concept violates Chief Justice Marshall's
basic rule of interpretation that it may not be presumed "that any clause
in the Constitution is intended to be without effect."
Typical of the anti-Second Amendment argument is a guest editorial in the
New York Times entitled "What Right To Bear Arms?" It was written by a
young man named Abrams whose only stated qualification was that he was
about to graduate from college and had been accepted into law school. He
is, in fact, the son of the Times' lawyer.
Disagreement with Mr. Abrams by qualified constitutional scholars was not
long in coming -- the most important a letter to the Times by Robert
Cottrol, a liberal black legal historian then at Boston College School of
Law, and other law professors and eminent constitutional historians. The
only conservative co-signer was Charles Rice, Professor of Constitutional
Law at Notre Dame Law School. Conspicuous liberal co-signers of Cottrol's
letter included Akhil Amar of Yale Law School and Sanford Levinson of the
University of Texas. Ray Diamond, a black law professor and legal
historian at Louisiana State Law School, and historians from UCLA and two
ultra-liberal colleges, Reed and Kenton. A particularly significant
co-signer was Daniel Polsby, a law professor at Northwestern University
Law school. Polsby is significant because a decade ago he was quoted
ridiculing the Second Amendment by Chicago Sun Times columnist Mike Royko.
Since then, Professor Polsby has studied the issue and reviewed the
scholarly literature of the 1980s. As a result of that effort Polsby has
reversed his position, even to the extent that he co-authored (without
compensation) an Amicus Curiae (Friend of the court) brief in support of
the National Rifle Association's position in attacking California's
Roberti-Roos Assault Weapon Control Act. The amici in that action are the
American Federation of Police, the Congress of Racial Equality (the black
civil rights organization which supported Bernhard Goetz), and the Second
Amendment Foundation.
Predictably, the very anti-gun New York Times refused to print this
letter by eminent academics which demolished its student editorialist and
acknowledged the Second Amendment's guarantee of the individual's right
to arms.
What convinced all these professors and scholars was the large amount of
research on the Amendment that has appeared in the past decade. Perhaps
the most important is direct legislative history. The written analysis
before Congress when it enacted the Bill of Rights said of the Second
Amendment: "the people are confirmed in their right to keep and bear
their private arms."
The fact that the Amendment is phrased "right of the people" is
emphasized by Professor Kates, probably the most authoritative scholarly
writer on the Second Amendment, who notes that that phrase is used in
every other Amendment to mean an individual right: "Clearly, having used
that phrase for a personal right in the 1st Amendment, Congress did not
use it to describe a states' (collective) right just 16 words later in
the 2nd Amendment -- and then revert to the personal rights meaning 46
words later in the 4th Amendment, and so on"
The Founding Fathers believed that only an armed citizenry could preserve
free government. Such thinking was consistent with a political philosophy
dating back to Aristotle, who said tyrants "mistrust the people, hence
they deprive them of arms." The lesson was emphasized by the British
attempt to confiscate the Patriots' arms at Lexington and Concord. As the
Virginia patriot George Mason put it: "to disarm the people, that is the
best and most effective way to enslave them."
The Founding Fathers' beliefs flowed from those of a British philosopher,
John Locke, who felt that government will become ever more oppressive
unless checked by fear of an armed people. Moreover, Locke argued that
having an armed populace would actually avoid bloodshed. He said that a
government unrestrained by fear of an armed populace would tend to
tyrannize so that even an unarmed people would revolt. Then there would
be a true blood bath, as occurred not long ago in Rumania. Locke and the
founding Fathers believed an armed citizenry to be the first and foremost
insurance against unendurable tyranny. To paraphrase Trenchard (a
follower of Locke who was also much admired by the Founding Fathers), an
armed people, like a strong man carrying a sword, will find the sword
grows rusty in its sheath because it will never have to be drawn. Thus
James Madison, author of the Second Amendment, tells us that tyranny
would not occur here because of "the advantage of being armed, which the
Americans possess over the people of almost every other nation."
Among the most important research in the 1980s was that of Professor
Joyce Malcolm, a legal historian whose work on the English and American
origins of the right to arms has been sponsored by the American Bar
Foundation, Harvard Law School, and the National Endowment for the
Humanities. Her research reveals how deeply l8th Century Englishmen and
Americans cared about their legal right to arms. Blackstone (the l8th
Century English authority on the common law, whose work forms the basis
for much of American common law) held that there was an "absolute right
of individuals" to possess arms.
The right is not outdated today. In fact, no 20th Century army has ever
defeated a populace that had access to small arms. That's how, after all,
nations such as Algeria, Angola, Ireland, Israel, Mozambique, and
Zimbabwe came to be. That's why the USSR left Afghanistan, the U.S. left
Viet Nam, and the French left Indochina, and why Chiang, Somoza, and
Battista left China, Nicaragua, and Cuba, respectively.
For further evidence of the new recognition of the "individual
rights" view of the Second Amendment, consider the turn-about by an
eminent liberal constitutional theorist, Sanford Levinson. His recent
Yale Law Journal article is titled The Embarrassing Second Amendment
because he found it impossible to sustain his former belief that private
gun ownership can be constitutionally prohibited and all guns confiscated.
Another eminent liberal is Michael Kinsley, former Editor-In-Chief of The
New Republic (one of the nation's leading liberal publications), who
moved down to the position of contributing editor in order to become the
liberal commentator on the TV debate program Crossfire.
Staunchly anti-gun, Kinsley is a member of Handgun Control, Inc. But in a
recent nationally-syndicated article he admitted that the evidence
demonstrates the individual right to have guns embodied in the Second
Amendment. Quoting a New Republic colleague, Kinsley said: "If liberals
interpreted the Second Amendment the way they interpret the rest of the
Bill of Rights, there would be law professors arguing that gun ownership
is mandatory" Nevertheless, Kinsley still dislikes guns and wishes the
Constitution did not guarantee responsible adults the right to own them
Professor Levinson has come considerably further. His Yale Law Journal
article articulates not only his new recognition that the Second
Amendment guarantees the individual's right to arms, but also that he now
sees the importance of an armed people:
". . . it seems foolhardy to assume that the armed state will
necessarily be benevolent. The American tradition is, for good or ill,
based in large measure on a healthy mistrust of the state ... it is hard
for me to see how one can argue that circumstances have so changed as to
make mass disarmament constitutionally unproblematic ... a state facing a
totally disarmed population is in a far better position, ... to suppress
popular demonstrations and uprisings than one that must calculate the
possibilities of its soldiers and officers being injured or killed."
It is heartening to see so many liberal scholars honestly acknowledge
what gun owners have long known about the Second Amendment. Now all that
seems left is for the nation's media to follow suit.
|