November 24, 2007

• 2nd Amendment Showdown

Posted in Politically Speaking tagged at 1:40 pm by Rid


November 23, 2007; Page A13

The Supreme Court has agreed to take up a case that will affect millions of Americans and could also have an impact on the 2008 elections. That case, Parker v. D.C., should settle the decades-old argument whether the right “to keep and bear arms” of the Constitution’s Second Amendment is an individual right — that all Americans enjoy — or only a collective right that states may regulate freely. Legal, historical and even empirical reasons all command a decision that recognizes the Second Amendment guarantee as an individual right.

The amendment reads: “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.” If “the right of the people” to keep and bear arms was merely an incident of, or subordinate to, a governmental (i.e., a collective) purpose — that of ensuring an efficient or “well regulated” militia — it would be logical to conclude, as does the District of Columbia — that government can outlaw the individual ownership of guns. But this collective interpretation is incorrect.

To analyze what “the right of the people” means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of “the right of the people peaceably to assemble . . .” No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.

The Fourth Amendment says, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ” The “people” here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Here, “the people” are separate from “the states”; thus, the Second Amendment must be about more than simply a “state” militia when it uses the term “the people.”

Consider the grammar. The Second Amendment is about the right to “keep and bear arms.” Before the conjunction “and” there is a right to “keep,” meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then Rep. Madison introduced 12 amendments, a “bill of rights,” to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison’s draft borrowed liberally from the English Bill of Rights of 1689 and Virginia’s Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the “greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government.” Accordingly, Mr. Rakove writes that “Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights.”

One of the earliest scholars of the Constitution and the Bill of Rights, Supreme Court Justice Joseph Story, confirmed this focus on individuals in his famous “Commentaries on the Constitution of the United States” in 1833. “The right of the citizens to keep and bear arms,” Story wrote, “has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . .”

It is also important to consider the social context at the time of the drafting and adoption of the Bill of Rights. Our Founding Fathers lived in an era where there were arms in virtually every household. Most of America was rural or, even more accurately, frontier. The idea that in the 1780s the common man, living in the remote woods of the Allegheny Mountains of western Pennsylvania and Virginia, would depend on the indulgence of his individual state or colony — not to mention the new federal government — to possess and use arms in order to defend himself is ludicrous. From the Minutemen of Concord and Lexington to the irregulars at Yorktown, members of the militias marched into battle with privately-owned weapons.

Lastly, consider the empirical arguments. The three D.C. ordinances at issue are of the broadest possible nature. According to the statute, a person is not legally able to own a handgun in D.C. at all and may have a long-gun — even in one’s home — only if it is kept unloaded and disassembled (or bound with a trigger lock). The statute was passed in 1976. What have been the results?

Illegal guns continue to be widely available in the district; criminals have easy access to guns while law-abiding citizens do not. Cathy L. Lanier, Acting Chief of Police, Metropolitan Police Department, was quoted as follows: “Last year [2006], more than 2,600 illegal firearms were recovered in D.C., a 13% increase over 2005.” Crime rose significantly after the gun ban went into effect. In the five years before the 1976 ban, the murder rate fell to 27 from 37 per 100,000. In the five years after it went into effect, the murder rate rose to 35. In fact, while murder rates have varied over time, during the 30 years since the ban, the murder rate has only once fallen below what it was in 1976.

This comports with my own personal experience. In almost 14 years as prosecutor and as head of the Homicide Unit of the Wayne County (Detroit) Prosecutor’s Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon. Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence (or lack of same), and failures in the supervision of parolees and probationers.

Not only does history demonstrate that the Second Amendment is an individual right, but experience demonstrates that the broad ban on gun ownership in the District of Columbia has led to precisely the opposite effect from what was intended. For legal and historical reasons, and for the safety of the residents of our nation’s capital, the Supreme Court should affirm an individual right to keep and bear arms.

Mr. Cox is the attorney general of Michigan.


  1. fastmetal said,

    Posted on Wed, Nov. 28, 2007

    Guns can be regulated, Second Amendment or not

    Daylin Leach

    is a Democrat who represents the 149th District in the Pennsylvania House.

    As a member of the House Judiciary Committee I received a lot of e-mails urging me to vote against the gun-control bills we considered last week. Many of these e-mails argued, in some form, that the governor’s proposals violated the Second Amendment to the United States Constitution. The writers seemed to feel that the Second Amendment prohibits any restrictions on gun ownership. However, that is simply not how the amendment works.

    The Second Amendment, like the First (and all other parts of the Bill of Rights) is not absolute. The First Amendment protects your right of free speech. But you can’t yell “Fire” in a crowded theater because there is a public-safety issue. You can say you are for or against the war, but not while standing with a sign in the passing lane of the turnpike. You generally can’t slander someone. You can’t publish CIA secrets in a book or claim the chewing gum you invented cures cancer. There are literally dozens of restrictions on speech.

    Constitutional law is never absolute. When someone asserts that their constitutional rights have been infringed upon, the courts employ a balancing test to evaluate the law in question. They measure how much a law infringes on a right and balance that against how important the state’s interest is in that law.

    If a fundamental constitutional right is affected, the court uses what it calls a “strict scrutiny test.” In order to survive a constitutional challenge, the law must serve a “compelling” state interest and the infringement on the constitutional right must be minimal and as narrowly tailored as possible to serve that interest.

    The Second Amendment offers two general rights: The right to keep (meaning own) and bear (meaning carry) arms. But that does not mean the state can’t regulate either of these areas. In fact, they do all the time. You can constitutionally be prohibited from owning a stolen gun, or a grenade launcher, or any gun if you have a criminal record. You can be prohibited from carrying a gun into a prison, an elementary school or a courtroom.

    Last week we voted down two bills dealing with guns. The first would have required people to report the loss or theft of a gun they owned. The second would have limited to one a month the number of guns a person could purchase.

    People can argue about the merits of these bills from a policy perspective, but there is clearly no constitutional impediment to either bill. The two rights spelled out in the Second Amendment do not bestow a constitutional “right” not to report a lost or stolen gun. Nothing in the wording of the amendment even arguably says that.

    One-gun-per-month is a restriction on ownership and thus does trigger a constitutional question. However, applying strict scrutiny to that law, it easily survives. The state’s interest in preventing criminal violence is well established to be “compelling.” These bills are tailored specifically to go after criminal straw-purchasers who sell guns illegally to those who could not legally get them. They do not target legitimate, law-abiding gun owners, who will be unaffected by the law.

    Under one-gun-per-month, an infringement on the right to own a gun does exist, but is so minimal as to be virtually nonexistent. A married couple could buy 24 guns per year. A restriction on your right to buy your 25th gun in one calendar year does not come close to infringing significantly on the underlying right. Even if one-gun-per-month becomes law, you will still be able to keep and bear arms, lots of them.

    The fact is that the Second Amendment does not prohibit passage of any law that happens to have the word “gun” in it. It allows the state to pass reasonable restrictions related to public safety, so long as they still respect and preserve the underlying right to have a gun to protect your home or to hunt. Overcoming false impressions about the nature and scope of the Second Amendment will allow us to actually consider legislation on its merits, which will be good for public safety and gun owners alike.

    E-mail State Rep. Daylin Leach, of King of Prussia, at

  2. Anonymous said,


    Explain how carrying a concealed weapon would cause the same deadly/dangerous/negative reactions as the examples of “restrictions” to the freedom of speech you have mentioned ? You have the right to bear arms not shoot people.

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