Newsgroups: talk.politics.guns
From: [l v c] at [cbnews.cb.att.com] (Larry Cipriani)
Subject: Re: Gun advocates LONELY without their 2nd Amendment...
Date: Sun, 10 Apr 1994 15:09:30 GMT

 
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.
*That* 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.

-- 
Larry Cipriani [lawrence v cipriani] at [att.com] or attmail!lcipriani