Prepared statement 128 Article: The Christian Science Monitor, "Door No. 1: Muskets? Or WHOSE RIGHT TO KEEP AND BEAR ARMS? THE SECOND AMENDMENT AS A SOURCE OF INDIVIDUAL RIGHTS WEDNESDAY, SEPTEMBER 23, 1998 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 2:20 p.m., in room SD-226, Dirksen Senate Office Building, Hon. John Ashcroft (chairman of the subcommittee) presiding. Also present: Senators Hatch, Feingold, and Torricelli. OPENING STATEMENT OF HON. JOHN ASHCROFT, A U.S. Senator ASHCROFT. Good afternoon, and let me thank you for your indulgence as we were called to vote just over the time when the subcommittee would normally have begun its meeting. We meet today to discuss one of the most important, and yet neglected, provisions in our Constitution, the second amendment. Like the rest of our founding document and the Bill of Rights, the second amendment is a profound one; yet, it is brief. It provides, in full, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Unlike most constitutional provisions which simply outline a right or a power, the second amendment first underscores the importance of the right secured. The second amendment speaks in straightforward and broad terms about both the need for gun ownership and the fact that the right to gun ownership, “shall not be infringed." In recent years, some have argued that the very fact that the second amendment first emphasizes the importance of the right to gun ownership and of the militia, that that somehow lessens the rights of individuals to own firearms. They seem to argue that because the Constitution expressly recognizes that gun ownership promotes the formation of militia that there is no right to gun ownership for any other purpose. In other words, they contend that the second amendment confers rights only on the States for militia purposes and not on individuals. This argument makes no sense to me. It conflicts with both the text of the Constitution and the reported views of the Founders. (1) Nonetheless, the argument has found a receptive audience in the lower Federal courts. This conflict of views has prompted today's hearing, "Whose Right to Bear and Keep Arms? The Second Amendment as a Source of Individual Rights. Although there is a lively current debate over whether the second amendment secures individual rights, reflection on the historical evidence makes it clear to me that this debate is a relatively new one. Our Constitution's Framers understood the right to keep and bear arms to be personal and central to preserving liberty. In Federalist No. 46, James Madison, who later drafted the second amendment, argued that "the advantage of being armed, which the Americans possess over the people of almost every other nation," would deter the new central government from tyranny. The new Constitution respected individuals' rights, Madison writes, whereas the Old World governments were, "afraid to trust the people with arms." This was one point on which the Federalists and the anti-Federalists could agree. Though he was strongly critical of Madison in the course of many other constitutional disputes, Richard Henry Lee wrote, "To preserve liberty, it is essential that the whole body of the people always possess arms * * ** Inclusion of "the right of the people to keep and bear arms"-I am quoting the Constitution there in the Bill of Rights made it clear that the Framers thought that firearm ownership was an individual right. Madison used the phrase "right of the people,” as he did elsewhere in the Bill of Rights, to indicate that the right to keep and bear arms was an individual right. "The right of the people to keep and bear arms" cannot be dismissed as a collective right of the people without raising questions about the first and fourth amendments, both of which use the phrase "right of the people" to confer rights on individuals. The structure of the Constitution also lends support to the view that the second amendment is a guarantee of individual rights. The right to bear arms is listed early in the Bill of Rights with other undeniably personal liberties, such as the personal right to free speech, which we have always enshrined and understood; the right to free exercise of religion, which we understand to be personal; the right to assembly, as well as the freedom from unreasonable searches and seizures, which obviously is a personal right. Even more persuasive evidence comes from Madison's original proposal to interlineate the new rights within the Constitution's text rather than placing them at the end of the original text. Madison, in his proposed Constitution, did not place the right to bear arms in Article I, section 8, which deals with the Congress' power to organize and to call out the militia. Instead, Madison placed the first and second amendments immediately after Article I, section 1, clause 3, which includes the Constitution's original guarantees of individual liberties-freedom from ex post facto laws and bills of attainder. In addition, as we will hear later from Mr. Halbrook, the framing of the Reconstruction amendments provides further evidence that the second amendment is a source of individual rights. The text, the structure, the history of the second amendment strongly indicate that the Framers knew exactly what they were doing, namely protecting an important individual right to be en joyed by all Americans for all times. Indeed, the second amendment, like the First, protects an important individual liberty that in turn promotes good government. A citizen armed with the right both to possess firearms and to speak freely is less likely to fall victim to a tyrannical central government than a citizenry that is disarmed from criticizing government or from defending themselves. Anyone who has fired a gun knows the awesome feeling of responsibility and empowerment that comes with it. Gun ownership provides an ability to protect your family and your property that promotes individual liberty and diminishes dependence on government. Gun ownership also fills an individual with a sense of responsibility and of the need to ensure public safety through the proper use of the firearm. This sense of empowerment, no doubt, was even stronger among members of the founding generation, many of whom lived great distances from their nearest neighbor, and even greater distances from the nearest officer of the peace. When my son, Jay, and I work on sighting in his gun on our farm, we experience the empowerment that comes with responsible gun ownership firsthand. Based on our own experience, it is hard for me to concede that the second amendment is anything other than a guarantee of individual liberty. Today, I am glad to welcome an outstanding group of witnesses. First, we will hear from one of the most reliable friends of the second amendment in the United States of America, U.S. Senator Bob Smith from New Hampshire. Our next witness will be acting legend and newly elected President of the National Rifle Association, Charlton Heston. We are honored with his presence. The subcommittee next will hear from Dennis Henigan, Director of the Legal Action Project of the Coalition to Prevent Handgun Violence, and then from an extraordinary panel of second amendment scholars. Before we hear from the ranking member and the chairman of the full committee and our witnesses, let me add one point. Our oath of office requires Members of Congress to support the Constitution, the whole Constitution, not just the rights that Members support or the ones that correspond with their personal politics. On the subcommittee, and in the Senate as a whole, we have fulfilled our oath by considering the first amendment implications of campaign finance reform and the fourth amendment problems with the administration's encryption policy. However, too often Members have simply ignored second amendment implications of various proposals to tax, to regulate, and even to ban firearm possession. Indeed, some of the Members who seem most willing to defend the newly-created individual rights appearing nowhere in the Constitution are the same Members that deny the existence of this fundamental right that our Framers put in black and white in our founding charter. Hopefully, events like today's hearing will remind us that patriots such as James Madison saw an armed citizenry as an essential to good government, not as a threat to it. In Madison's view, the newly formed central government would not become an enemy of liberty because, unlike the Old World governments, it was not, "afraid to trust the people with arms." I wonder if Madison could say the same of our Government today. I believe it is time that we once again recognize the second amendment for what it is. It is a protection of individual liberty. If opponents of gun rights want to argue in favor of repealing the second amendment, I would welcome that debate, for whatever the outcome, that discussion would do far less damage to our constitutional structure than if Congress continues to act as if the second amendment was written in disappearing ink. It is my privilege now to call upon the ranking member, Senator Feingold. STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator FEINGOLD. Mr. Chairman, I am always pleased to attend a hearing which you chair, but I am particularly pleased today because we do not always agree, particularly with regard to constitutional issues. But I listened carefully to every word you said, and I reserve the right to change my mind after reading the transcript, but I believe I agree with every single word you have just said. Senator ASHCROFT. Well, that settles it. We are adjourned. [Laughter.] Senator FEINGOLD. And this does not happen all the time. And seeing Mr. Heston here, I can't help but comment that one of your most famous roles in the movies had to do with a document that had ten provisions, the Ten Commandments. Growing up, I had two very important things in my life, among others. One was my religion and one was my country, and I always noted as a young fellow that the basic documents in both cases involved 10 provisions. Now, I am not into numerology, but I noticed that the Ten Commandments had 10 provisions and the Bill of Rights had 10 provisions. Our rabbi at our synagogue used to, in sermons, lecture us quite severely that the Ten Commandments were not the 10 suggestions, he used to say. Well, I would say the same thing about the Bill of Rights. Every single one of them is, in effect, a commandment from our Founding Fathers and each one of them is valid. And so, Mr. Chairman, I want you to know that I have spent a great deal of time on this subject. In fact, I started working on it and thinking about it 25 years ago when I was an undergraduate at the University of Wisconsin, Madison. I chose to write my senior thesis in political science and constitutional law on this topic during my undergraduate days at the University of Wisconsin, Madison, in 1974 and 1975. And let me tell you that I easily concluded that the second amendment includes an individual as well as a collective right to bear arms, as you have said. Since that time, numerous books and articles have been written on the second amendment, many focusing on the issue of whether or to what extent it is a source of an individual right to bear arms. So I look forward to an interesting discussion with our distinguished witnesses and the opportunity to learn more about the latest trends in second amendment scholarship. The numerous articles and treatises on the second amendment are a testament to the fact that its meaning is, of course, subject to disagreement. It remains a dispute as to what the relationship |