Senator ASHCROFT. I am pleased now to call upon Professor Robert Spitzer, who is from Cortland, NY, where he is the Distinguished Service Professor of Political Science at the State University of New York. STATEMENT OF ROBERT J. SPITZER Mr. SPITZER. Thank you, Mr. Chairman. It is a pleasure to be here, and political scientists can be brief. I want to just make a few points to try and complement or comment on some of the other things that have been said thus far. One of the things I observe is that in some of the commentary about this subject, there has been a side-stepping of sort of primary evidence, and we saw that, I think, in part, with the exchange concerning court cases. I mean, it took us a while to sort of get to that and I think there is some agreement that the courts have taken an interpretation of the second amendment that it does pertain to militias. And, indeed, the Court might change its mind at some point in the future, but the Court indeed has been pretty clear about that in four Federal cases. I want to say something about the meaning of the phrase "the people" in the second amendment, the point you were raising. During the First Congress-this gets us, in part, to what the people who wrote the second amendment were thinking about because those debates are available to us, and all of the debate in the First Congress concerning what is now the second amendment-was then originally the fourth amendment, actually-pertained to military matters; that is to say, it pertained to conscientious objector status, that is, the ability to opt out of military service because of religious beliefs. It pertained to the relationship between militias and standing armies and the value of liberty; also, to the need to subordinate the military to civilian authority, which was a very big question, and on reliability of militias compared to the relative reliability of professional armies in a battlefield situation. Part of this comes through when you look at the early text of the second amendment as it was first introduced in June 1789. It said, "The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country. But no person religiously scrupulous of bearing arms shall be compelled to render military service in person." Again, really the only textual change, aside from linguistic cleaning-up editorially, is this conscientious objector status issue, which is an issue of military service. The court cases have been discussed. Congress itself has contributed to the constitutional law of the second amendment. And Louis Fischer, who you may know is your employee for the Congressional Research Service, Library of Congress, has written quite a bit about how Congress and the Presidency contribute to constitutional law, just as the courts do. And Congress has contributed to that process through not only the Militia Act of 1792, but the Militia Act of 1903, the so-called Dick Act, and the National Defense Act of 1916, all tying to this question. And I want to get to exactly how by pointing out that the term "militia" itself is somewhat confusing because the militia had two 54-996 99-5 parts 200 years ago. There was the unorganized or general militia, which was every able-bodied man roughly between the ages of 18 and 45, and then there was the select or organized militia, which was a much smaller and more elite kind of fighting group. And what fell by the wayside over time was the unorganized or general militia. The last time we relied on such a fighting force was in the War of 1812, where frankly the United States got its-if I can say this in this chamber, the United States got its butts kicked by the British, a smaller but professional force. And there was a general understanding that an unorganized general militia was simply not effective on the battlefield, and that led essentially to the abandonment of that element of the militia. The select or voluntary militia continued on, and that is what eventually became the National Guard when it was brought under Federal control by the Federal enactment starting with the Dick Act in 1903. So there were really two parts to it. We still have the National Guard today. The old sort of unorganized militia, the massive callup that you might need to rely on for a full-scale national emergency, would today be handled by the national draft, not by a callup of militia, although Congress still retains the power even today to call up an unorganized militia if it chooses to do so. So that power still exists on the books. On the incorporation matter, Mr. Halbrook said that it remained unresolved as to whether the second amendment applies to the States. Well, that is not really right. The courts have chosen not to incorporate the second amendment, as they have other parts of the Bill of Rights. The incorporation process, as you pointed out, began in 1897 when eminent domain was incorporated. Free speech was incorporated in 1925, the Lochner case. Free press was incorporated in 1931, Near v. Minnesota. So by the time you get to 1939 and U.S. v. Miller, the Court is well on its way in terms of incorporation and clearly chose not to incorporate in 1939, and has had numerous opportunities from then up until 1996 to accept such a case and incorporate the second amendment and it has not chosen to do so. There is general agreement that the incorporation process was pretty much at an end about 1969, with the possible exception of the Excessive Fines and Bails Clause in, I think, the seventh amendment. One final point. I have spent quite a bit of time looking at law review articles. Last winter, I read through over 250 law review articles that dealt with gun control generally to find those that had comment on the second amendment. And I culled a list of 145 law journal articles that offer significant comment on the second amendment and I examined articles from 1907 to 1997, and you can see that I don't have much else to do with my time. And that was a very revealing exercise for me, and I would have brought that information as well, but it is under review for a journal right now and I am sort of waiting to hear from them and would rather see that published and then presented. And perhaps I can pass that information on at some later time. Thank you for your time. Senator ASHCROFT. Well, I thank you very much, and we would be pleased if you would choose to send that material to us to have it for inclusion in the record. Mr. SPITZER. I would be happy to do so. [The prepared statement of Mr. Spitzer follows:] THE SECOND AMENDMENT: A SOURCE OF INDIVIDUAL RIGHTS? Testimony Presented by Distinguished Service Professor of Political Science Presented to the U.S. Senate Judiciary Committee, Various public opinion polls have reported that most Americans believe that the Second Amendment protects an individual's right to own weapons. For example, a 1995 U.S. News and World Report poll reported that 75 percent of Americans believe that "the Constitution guarantees you the right to own a gun.”1 In order to answer the question posed by today's hearing -- whether the Second Amendment is a fountainhead of or for individual rights -- this testimony will examine 1) the circumstances and thinking that led to the formation of the Second Amendment, and to its insertion in the Bill of Rights, 2) its interpretation by the courts, and 3) its connection to the modern gun control debate. The Text We begin with the plain text. The Second Amendment says, "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." As the sentence makes clear, the right to bear arms is prefaced by the necessity for the state to maintain a militia in order to insure security. As Chief Justice Warren Burger noted, the Second Amendment "must be read as though the word `because' was the opening word" of the sentence. That is, the keeping and bearing of arms stems from the maintenance of a government-organized and regulated militia. Yet the Constitution's plain text can be confusing or ambiguous. We thus turn to constitutional background, the intent of those who framed the Second Amendment, pertinent history, and the courts. 2 1"The Fight to Bear Arms," U.S. News and World Report, May 22, 1995, p. 29. For more on this and other elements of the gun control debate, see Robert J. Spitzer, The Politics of Gun Control, 2nd ed. (Chatham, NJ: Chatham House, 1998). See also James D. Wright, "Public Opinion and Gun Control: A Comparison of Results From Two Recent National Surveys," Annals of the American Academy of Political and Social Science 455(May 1981): 37; and Nelson Lund, "The Second Amendment, Political Liberty, and the Right to SelfPreservation," Alabama Law Review 39(1987): 105, n. 3. 2Warren Burger, "The Right to Bear Arms," Parade, January 14, 1990, p. 5. 2 The Constitution America's first constitution, the Articles of Confederation (1777-1789), reflected not only suspicion of standing armies, but of a strong national government. Formulated and adopted during the Revolution, the Articles placed the primary burden of national defense on the states, stipulating specifically that "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred" (Article VI) and that Congress's military powers could only be exercised by a vote of nine of thirteen states (Article IX). No specific provision was made for a national standing army. These and other shortcomings of the Articles led to the Federal Convention of 1787, and the adoption of the modern Constitution. The military issue was resolved by recognition of both the militia and a standing army, and it split powers between the national government and the states. In Article I, section 8, Congress was given the power to "raise and support armies," "provide and maintain a Navy," and to finance and regulate both. In an important departure from the Articles, Congress would now have key authority over the state militias, as it could "provide for calling forth the Militia" in order "to execute the Laws of the Union, suppress Insurrections and repel Invasions"; and it could "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States." On the other hand, the states retained some control, as the Constitution reserved "to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." In addition, the president would serve as commander-in-chief of the military forces, including the militia (Article II, section 2). The founders recognized the longstanding mistrust of standing armies," but accepted the reality that the militia was no substitute for a trained professional "The Articles specifically granted sovereignty to the states in Article II, and severely limited the power of Congress. The numerous weaknesses of this system led to the adoption of the modern constitution, which created a much stronger national government. *According to James Madison, Congress's power to arm the militia "did not extend to furnishing arms." Presumably, this meant that Congress was merely empowered to see that the militia had arms, although this would not preclude governmental arming if it chose to do so. Max Farrand, The Records of the Federal Convention, 4 vols. (New Haven: Yale University Press, 1966), II, p. 385. "During the Revolution, Congress was extremely reluctant to accede to General Washington's repeated requests for a larger professional force because of their fear that it "weakened the soldiers' state ties and seemed a possible instrument of tyranny." James Flexner, Washington: The Indispensable Man (New York: New American Library, 1984), p. 111. |