Newsgroups: talk.politics.guns
From: [l v c] at [cbvox1.att.com]
Subject: Forefathers firm on bearing arms, by Don B. Kates
Date: Mon, 24 Jan 1994 19:34:29 GMT

	Chicago Tribune, Tuesday, 12/14/93
		Title: Forefathers firm on bearing arms
		Author: Don B. Kates Jr., San Francisco criminologist,
			civil liberties lawyer

Scholars differ dramatically with the popular media's view of the
constitutional right to arms.  Newspaper editorials routinely minimize
that right as applying only to the states and/or National Guard.  Scholars
overwhelmingly disagree, though recognizing that only the arms of
responsible, law abiding adults are protected.  A reasonably rapid
background check to prevent criminals from obtaining guns is constitutional.

Historical research shows that our Founding Fathers out-NRAed the National
Rifle Association.  "One loves to possess arms" wrote Thomas Jefferson, the
intellectual of his day, to George Washington on June 19, 1796.  Like
Washington, Jefferson maintained a sizable personal armory.  A model
state constitution, he penned, guaranteed that "[n]o free man shall be
debarred the use of arms in his own lands."

Thomas Paine urges "all the world to lay [arms] aside ... and settle
matters by negotiation" --- "but unless the whole will, the ends, and I
take up my musket and thank Heaven He has put it in my power."  Like
Jefferson, Paine both doubted that criminals could be disarmed and deemed
it a positive good that decent people were armed against them: "The peaceable
part of mankind will be overrun by the vile and abandoned while they neglect
the means of self-defense... [Weakness] allures the ruffian [but] arms
like laws discourage and keep the invader and plunderer in awe and preserve
order in the world....  Horrid mischief would ensue were [the good] deprived
of the use of them... the weak will become a prey to the strong."

The founders' belief in the social value (and sacred personal right) of
arms derived form the English philosophers Sidney and Locke and the legal
commentator Blackstone who ranked "the right of having and using airing [sic]
for self-preservation and defense" among the "absolute rights of
individuals at common law," a right he saw as preserving to England its
free government and to Englishmen their liberties.

Sidney was executed for asserting the right to revolt against tyranny.  He
and Locke defended that right as an aspect of personal self-defense: God
gives us our lives, liberties, property and the means to defend them;
so we may resist robbers and slavers even to the death -- so may we resist
a tyrant who would steal God's gifts.  "Swords were given to men, that
none might be slaves, but such as know not how to use them ... innocent
persona [would] be exposed to the violence of the most wicked, if men might
not justly defend themselves against injustice. ..."  (The French philosopher
Montesquieu, who so deeply influenced our founders, also denounced laws
disarming the citizenry as contrary to their natural rights.)

The Founders unanimously agreed.  "The great object," thundered anti-
Federalist Patrick Henry "is that every man be armed."  James Madison,
Federalist author of the Bill of Rights, reviled tyrants for being "afraid
to trust the people with arms" and extolled "the advantage of being armed,
which the Americans possess over the people of almost every other nation."
The anti-Federalists endorsed Madison's Bill of Rights while claiming it
was their own idea.  They characterized the 2nd Amendment as a mere rewording
of their Sam Adams' proposal "that the [federal] Constitution be never
construed to prevent the people who are peaceable citizens from keeping
their own arms."  (The Federalist analysis said the amendment confirmed to
the people "their private arms.")

The notion that the right to arms applies only to the states or National
Guard is refuted by the very language of the Bill of Rights.  Enacted as
one document, it consistently uses the phrase "right of the people"
(1st, 2nd and 4th Amendments) to mean rights of citizens, as the Supreme
Court has emphasized.  United States v. Verdugo-Urquidez (1990) ---
expressly citing the 2nd Amendment.  Moreover, in the 9th and 10th Amendments
the rights of the states are expressly differentiated from those of "the
people."

Of course, the 2nd Amendment also speaks of the "militia."  That refers not
to a formal military unit like the National Guard, but to early militia
laws which required every home to be armed and every man to muster regularly
for drill and, upon call, for duty.  Says the Supreme Court "The Militia
comprised all males physically capable of acting in concert for the common
defense" --- who "were expected to appear bearing arms supplied by
themselves..." Unites States v. Miller (1939).

Since the arms of the militia and of its members are the same, the
amendment's guarantee of their arms is a guarantee of militia arms.  Contrary
to common misstatements of the Miller case, it allowed ordinary citizens
to challenge a gun law, though they were not members of the National Guard.
The Court thus felt that the amendment guarantees the right to ordinary
citizens, though it held that only militia-type arms were covered --- not
blackjacks, improvised weapons or guns too shoddily made to meet military
standards.

When discussing the Bill of Rights, Madison and other founders (both
Federalist and Anti-Federalists) consistently mentioned the right to
arms in the same breath as freedom of speech, press and/or religion,
referring to them jointly as "human rights," "private rights," rights 
"respecting personal liberty."  Significantly, the Supreme Court has
consistently equated the 2nd Amendment to other basic constitutional
rights: Planned Parenthood v. Casey (1992), Moore v. City of East Cleveland
(1977), Konigsberg v. California (1961).

If the right to arms applies only to the states or National Guard, it is odd
that the founders and court and analysts near their time seemed wholly
unaware of it.  Its ultimate refutation lies in the fact that it is an
invention of the modern gun control struggle, with no pre-20th Century
antecedents.

Every court and every commentator discussing the right to arms from 1789
through the end of the 19th Century described it in individual right terms
without any inkling that there was any other way to understand it."  (Anti-
gun groups have dealt with this embarrassing fact by wantonly misrepresenting
19th-Century cases to the extent of bowdlerizing and even fabricating
quotations from them.)

As the 2nd Amendment doesn't say "right of the states," neither does it
read "Congress shall make no law the NRA disapproves."  Polling demonstrates
that most Americans --- including most gun owners --- support controls
designed to disarm criminals and the irresponsible.  Honest recognition
of the right to arms does not preclude such rational, moderate controls.
Gun owners oppose them in paranoid reaction to anti-gun leaders whose
program is far more extreme.  Declaring the Brady Bill "just the first
step," anti-gun leaders seriously propose to "fight crime" by laws which
would effectively disarm its victims, and the American people.

The real first step toward the consensus necessary to rational gun control,
however, is recognizing that such extreme measures are unconstitutional
as well as irrational.  Having quieted gun-owner fears, and the extremists
on both sides, we can move forward toward a reasonable accommodation between
society's needs to control deadly weapons and responsible adults' right
to have handguns for family defense.
--
Larry Cipriani, [l v cipriani] at [att.com] or attmail!lcipriani