23 is not, and never has been, a right enjoyed by all citizens, unlike other Bill of Rights protections such as free speech, religious freedom, or right to counsel." 87 Some have argued that the reference to "the people" in the Second Amendment has the same meaning as it does in other parts of the Bill of Rights, as in "the right of the people [to] peaceably assemble" in the First Amendment, or the "right of the people to be secure in their persons, houses, papers and effects" from the Fourth Amendment. After all, all citizens are considered to have such First and Fourth Amendment protections, so why shouldn't the Second Amendment be read as meaning that all citizens have a right to bear arms? In support of this claim, some have pointed to a 1990 Supreme Court case, U.S. v. Verdugo-Urquidez (494 U.S. 259) for support. This claim is false on three grounds. First, as discussed earlier, militia service, from colonial times on, always pertained only to those capable and eligible to serve in a militia -- that is, healthy young-to-middle-aged men (excluding the infirm, old men, and nearly all women). Second, the courts (especially in the Presser case) and federal law have clearly defined and interpreted the Second Amendment as having this specific meaning. And third, the Verdugo-Urquidez case has nothing to do with interpreting the Second Amendment. In fact, the case deals with the Fourth Amendment issue of whether an illegal alien from Mexico was entitled to constitutional protection regarding searches. In the majority decision, Chief Justice Rehnquist discussed what was meant by the phrase "the people," given that the phrase appears not only in several parts of the Bill of Rights, but also in the Constitution's preamble, in order to determine its applicability to a non-citizen. Rehnquist speculated that the phrase "seems to have been a term of art" that probably pertains to people who have developed a connection with the national community. Rehnquist's speculations about whether the meaning of "the people" could be extended to a non-citizen, and his two passing mentions of the Second Amendment in that discussion, shed no light, much less legal meaning, on this amendment. 87 This also puts to rest the assertion of some that the phrase "the people" in the Second Amendment somehow means all of the people, as is the case when the phrase appears in other parts of the Bill of Rights. Obviously, the Second Amendment is talking about only those people who could serve in a militia. This argument is raised in Cottrol, "The Second Amendment," pp. xxxi-xxxii; and Dowlut, "The Right to Arms," pp. 93-94. In Fresno Rifle & Pistol Club v. Van De Kamp, the court of appeals rejected the idea that the phrase "the people" had the same, uniform meaning throughout the Bill of Rights (965 F.2d 723; 9th Cir. 1992); No. 91-15466, at 5938-39. "For example, William Van Alstyne, "The Second Amendment and the Personal Right to Bear Arms," Duke Law Journal 43(April 1994): 1243, n.19. 24 Self-Defense Critics also argue that the principle of self-protection or self-defense is (or ought to be) covered by the Second Amendment." In doing so, some of this analysis intermixes the defense needs of early Americans (against Indians, or predators, for example) with modern personal self-defense against robberies, assaults, rapes, intrusions into people's homes, or other life-threatening circumstances. Yet as this discussion shows, the Second Amendment by design and interpretation has nothing to do with these very real modern-day threats, but rather with the threats confronted by armies and militias. This does not mean that the law affords no legal protection to individuals who engage in personal self-defense -- far from it. American and British common law has recognized and legally sanctioned personal self-defense for hundreds of years, prior to and independent of the Second Amendment. But it arises from the area of criminal law, not constitutional law. A standard, long accepted definition of self-defense from common law says: A man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor, by violence or surprise, to commit a known felony on either. In such a case he is not obliged to retreat, but may pursue his adversary until he find himself out of danger; and if, in a conflict between them, he happen to kill, such killing is justifiable. The right of self-defense in cases of this kind is founded on the law of nature; and is not, nor can be, superseded by any law of society. . . .91 The Second Amendment is as superfluous to legal protection for personal defense or defense of the home today as it was two centuries ago. Indeed, as defined in the common law tradition, the self-defense principle supersedes even constitutional guidelines. The "Right of Revolution" and Oppression An additional challenge to the standard view that takes an extreme 89See for example David I. Caplan, "Restoring the Balance: The Second Amendment Revisited," Fordham Urban Law Journal 5(Fall 1976): 52; Robert Dowlut, "The Right to Arms," Oklahoma Law Review 36(Winter 1983): 67; Don B. Kates, "The Second Amendment and the Ideology of Self-Protection," Constitutional Commentary 9(Winter 1992): 87-104; and Lund, "The Second Amendment, Political Liberty, and the Right to Self-Preservation," pp. 118, 130. 9oSee Samaha, Criminal Law, chap. 6. 91 American Law Institute, Model Penal Code and Commentaries (Philadelphia: American Law Institute, 1985), I, pt. 1, pp. 380-381. See also the definition of self-defense in Henry C. Black, Black's Law Dictionary (St. Paul, MN: West Pub. Co., 1983), p. 707. 25 individualist perspective argues that the Second Amendment does or should incorporate arms for everyone because of an innate "right of revolution," or as a mechanism to keep the country's rulers responsive to the citizens. While these theories pose interesting intellectual questions about the relationship between citizens and the state, they do not translate into meaningful policies for modern America. Most citizens recognize the importance of exercising democratic values through elections, public opinion, the interest group process, and the jury box, rather than by pointing guns (whether by threat or deed) at congressional leaders or the White House. Few Americans approve of those few groups in America that actively pursue something resembling a right of revolution -- the Ku Klux Klan, the skinheads, the Branch Davidians, or Los Angeles rioters. As legal scholar Roscoe Pound noted, a "legal right of the citizen to wage war on the government is something that cannot be admitted. . . .In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights." In any event, any so-called right of revolution is carried out against the government, which means against that government's constitution as well, including the Bill of Rights and the Second Amendment. In short, one cannot carry out a right of revolution against the government while at the same time claiming protections within it.' 93 94 92 Robert E. Shalhope says the Second Amendment protects weapons possession for Americans in part "for the purpose of keeping their rulers sensitive to the rights of the people." Would this make, say, Lee Harvey Oswald, John Wilkes Booth, David Koresh, and Timothy McVeigh true democrats? "The Ideological Origins of the Second Amendment," Journal of American History 69(December 1982): 614. See also Halbrook, That Every Man Be Armed, pp. 68, 194-195; Lund, "The Second Amendment, Political Liberty, and the Right to SelfPreservation," pp. 111-116; Wayne LaPierre, Guns, Crime, and Freedom (Washington, D.C.: Regnery, 1994), pp. 19-20; Glenn H. Reynolds, "The Right to Keep and Bear Arms under the Tennessee Constitution," Tennessee Law Review 61(Winter 1994): 668-69. For a more complex discussion, see David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," Yale Law Journal 101(1991): 588-594. 93 Roscoe Pound, The Development of Constitutional Guarantees of Liberty (New Haven: Yale University Press, 1957), pp. 90-91. See also Wendy Brown, "Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's 'The Embarrassing Second Amendment,'" Yale Law Journal 99(December 1989): 661-667. "Stuart R. Hays goes so far as to cite with approval the Civil War as an instance of "the right to revolt when the laws of the government began to oppress. Whatever one thinks of that conflict, the effort of southern states 26 The Constitution itself makes this point forcefully, as Congress is given the powers "To provide for calling forth the Militia to execute the Laws of the Union, Suppress Insurrections and repel Invasions (emphasis added)" in Article I, section 8; to suspend habeas corpus "in Cases of Rebellion or Invasion" in section 9; and to protect individual states "against domestic Violence" if requested to do so by a state legislature or governor in Article IV, section 4. Further, the Constitution defines treason in Article III, section 3, this way: "Treason against the United States, shall consist only in levying War against them [the United States was originally referred to in the plural). . . ." In other words, the Constitution specifically and explicitly gives the national government the power to forcefully suppress anything even vaguely resembling revolution. Such revolt or revolution is by constitutional definition an act of treason against the United States. The militias are thus to be used to suppress, not cause, revolution or insurrection. These powers were further detailed and expanded in the Calling Forth Act of 1792 (1 U.S. Stat. 264), which give the president broad powers to use state militias to enforce both state and federal laws in instances where the law is ignored or in cases of open insurrection. This act was passed by the Second Congress shortly after the passage of the Bill of Rights. In current law, these powers are further elaborated in the U.S. Code (10 U.S.C. 331-334) sections on "Insurrection." Along these lines, others have argued that traditionally oppressed groups, such as women and African Americans, should aggressively claim for themselves a to break away from the Union was not within the bounds of the Constitution, but was rather a threat to the Union's continued existence. "The Right to Bear Arms," p. 382. Sanford Levinson states in a widely cited article that the Second Amendment is an expression of republicanism that does and should take citizen participation beyond peaceful, constitutional means: ...just as ordinary citizens should participate actively in governmental decisionmaking through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professional peacekeepers, whether we call them standing armies or police [emphasis added]. Levinson offers as a bona fide constitutional argument the proposition that vigilantism and citizen violence, including armed insurrection, against the government are legal, proper, and even beneficial activities that fall under the Second Amendment umbrella. The idea that vigilantism and armed insurrection are as constitutionally sanctioned as voting is a proposition of such absurdity that one is struck more by its boldness than by its pretensions to seriousness. See "The Embarrassing Second Amendment," Yale Law Journal 99(December 1989): 650 51. 27 95 -96 right to bear arms. Blacks in particular have been subject to race-based violence for hundreds of years, and were undeniably denied arms "as a means of racial oppression." Yet the key handicap for blacks and other oppressed groups has not been the denial of Second Amendment rights in particular, but the denial of all basic Bill of Rights freedoms, not to mention denial of the basic common law principle of self-defense. Further, Carl T. Bogus has marshalled substantial evidence to support the proposition that southern leaders supported the inclusion of the Second Amendment to ensure that they could use their state militias to suppress slave revolts. Conclusion 97 The inescapable conclusion of this analysis and discussion is that the Second Amendment does not provide any set of individual rights distinct or apart from service in a government-organized and regulated militia. Even if the old-style militia system were re-activated, these strictures would apply. The Constitution's founders, the authors of the Bill of Rights, and court rulings, all point to this conclusion. While some may view this conclusion as a threat to liberty, or as an entree to undesirable gun regulations, neither concern is supported by this analysis. America's long and sentimental attachment to legitimate gun uses, referred to as the gun culture, continues to preserve and protect the proper place of guns in modern America. And resolution of gun control issues will continue to play itself out where it should -- that is, in the political arena. As for the Constitution itself, those who honor it most fully are those who conserve, and therefore preserve, its meaning and intentions. 95 See for example Robert J. Cottrol and Raymond T. Diamond, "The Second Amendment: Toward an Afro-Americanist Reconsideration," Georgetown Law Journal 80(1991): 309-361; and Stefan B. Tahmassebi, "Gun Control and Racism," George Mason University Civil Rights Law Journal 1(Winter 1990): 6799. Blacks were undeniably deprived of the fundamental right of self-protection, pertaining to but not limited to, weapons possession. Yet extension of weapons ownership to a subdominant group in society at a time when the group was deprived of most other basic freedoms and protections would in all likelihood be a formula for racial annihilation, as was the case with Native Americans. A discussion of women and the Second Amendment can be found in Jeffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein, eds., The Bill of Rights in the Modern State (Chicago: University of Chicago Press, 1992). 96 Cottrol and Diamond, "The Second Amendment," p. 335. "Carl T. Bogus, "The Hidden History of the Second Amendment," U.C. Davis Law Review 31(Winter 1998). |