February 3, 2008

* Republican Presidential Candidates Position

Posted in Politically Speaking, Resources at 1:00 pm by Rid

Do you know where the Republican Candidates stand on gun control and the Second Amendment?

Mike Huckabee on the Second Amendment: http://www.mikehuckabee.com/?FuseAction=Issues.View&Issue_id=18

Gun Owners of America on Mike Huckabee: http://gunowners.org/pres08/huckabee.htm

Gun Owners of America on John McCain: http://gunowners.org/pres08/mccain.htm

Gun Owners Rating of John McCain: http://www.gunowners.org/mccaintb.htm

Gun Owners: "Abysmal, wretched, and pathetic" comment: http://www.gunowners.org/mccaintb.htm

Gun Owners of America on Mitt Romney: http://gunowners.org/pres08/romney.htm

Romney’s "chip away" comment: http://gunowners.org/pres08/romney.htm

Romney expressing support of Massachusetts laws: http://gunowners.org/pres08/romney.htm

Romney’s "lifelong hunting": http://abcnews.go.com/Politics/wireStory?id=3013787

Romney’s "lifetime" NRA membership (see last line of story): http://abcnews.go.com/Politics/wireStory?id=3013787http://www.google.com/search?hl=en&q=when+did+Romney+join+the+NRA&btnG=Google+Search 

Romney’s lack of actual gun ownership: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2

Romney signs permanent assault weapons ban: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2http://www.google.com/search?hl=en&q=Romney+sign+assault+weapon+ban&btnG=Google+Search

January 11, 2008

• Frevalous D.C. Suit Tossed

Posted in Case Reports, From The Blog-O-Sphere, Legal, Politically Speaking, Resources at 8:32 pm by Rid

ASSAULT WEAPONS
Federal Law Negates D.C.’s Suit Against Gunmakers, Judge Rules

By Henri E. Cauvin
Washington Post Staff Writer
Tuesday, May 23, 2006; Page B04

A lawsuit in the District against gunmakers was dismissed yesterday by a D.C. Superior Court judge who ruled that the suit was precisely the sort of claim that a new federal law was intended to block.

In a 37-page opinion, Judge Brook Hedge wrote that the city and the federal government had two competing policies, and only one could prevail.

The D.C. Council, she wrote, had determined that assault weapons have “little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors.” Congress, however, “has trumped local law by passing legislation to protect the profits of such manufacturers,” she wrote.

The suit, filed by the city and by victims of gun violence and their families, aimed to hold gun manufacturers liable for the flow of firearms into the District and for the carnage created by the sale of illegal weapons.

Under D.C. law, only law enforcement officers are authorized to carry firearms in the District. But gun violence is a chronic problem in the city, nourished by a steady supply of weapons from Maryland, Virginia, North Carolina and other states with more relaxed gun laws.

District of Columbia v. Beretta U.S.A. Corp ., filed in 2000, was an attempt to address the situation. The plaintiffs faced formidable challenges in the courts and on Capitol Hill, and an act of Congress last year appears to have sealed the fate of the lawsuit and others like it.

The Protection of Lawful Commerce in Arms Act, signed by President Bush in October after winning easy House and Senate approval, enacted broad liability protections for the country’s gun industry.

Gun-control advocates blame gunmakers for loose distribution systems that have allowed criminals easy access to assault weapons. Local governments have sued to force changes in the way guns are sold and repayment for police work and medical costs associated with treating victims, particularly those shot by high-powered weapons.

Gunmakers and trade groups say the industry has been made a scapegoat for lax law enforcement and the actions of criminals.

The suit filed by the District and gun violence victims was among the most aggressive of many such suits filed across the country. As with many of those suits, it claimed that the manufacturers create a public nuisance with their products and were conducting business with little regard for the risks their products created.

But the D.C. suit went a step further, arguing that under a 1990 District law, the manufacturer, dealer or importer of an assault weapon or machine gun can be held liable for damages arising from an injury or death that results from the discharge of a firearm in the District.

In 2002, D.C. Superior Court Judge Cheryl M. Long threw out the lawsuit, rejecting the nuisance and negligence claims and concluding that a 1990 statute, the Assault Weapon Manufacturing Strict Liability Act, was unconstitutional.

In 2004, a three-judge panel of the D.C. Court of Appeals upheld much of Long’s ruling but said the city could sue under the strict liability statute. In April 2005, the full Court of Appeals upheld that ruling, sending the case back to Superior Court.

After the new liability protections for the gun industry were enacted in 2005, manufacturers petitioned Superior Court to dismiss the suit. The plaintiffs countered that their suit met an exception in the new federal law and that the law was unconstitutional in any event.

Hedge rejected those legal arguments.

“The Court is faced with a classic tension between two elected branches of different governments, two equally clear legislative judgments, but each enforcing opposite policies,” Hedge wrote.

“At bottom,” she said, the federal law was enacted “to prohibit the very types of lawsuits the Strict Liability Act allows.”

And unless she was persuaded that the federal law was unconstitutional — which she was not — the federal law would prevail, she wrote.

The D.C. attorney general’s office and Wilmer Hale, the firm that is the lead counsel for the plaintiffs, said yesterday that they are weighing whether to appeal the ruling to the D.C. Court of Appeals.

January 9, 2008

• More Legal Guns=Less Crime?

Posted in From The Blog-O-Sphere, Resources tagged at 10:16 pm by Rid

With more people carrying guns, self-defense killings on increase

By Christopher Conley (Contact)

From: The Memphis Online Commercial Appeal dot Com                          Saturday, January 5, 2008

The number of justifiable homicides in Memphis jumped from 11 in 2006 to 32 in 2007.

No one is sure why, but one man has a theory.

“The thugs have started running into people who can protect themselves,” said Tom Givens, owner and instructor at the firearms training school RangeMaster, 2611 S. Mendenhall in Memphis.
Cookie Dungan, 65, (left) rolls up her target after taking her turn in a handgun class at RangeMaster, a Memphis firearms training school.

Police detectives and prosecutors don’t think it’s that simple, and they acknowledge the spike could be a one-time occurrence.

“It’s hard to put your finger on it,” said police Lt. Joseph Scott. “There are more handgun carry permits, there is more education, but you can’t say that’s the reason.”

More people are getting carry permits and more people know their rights. As many as 35,000 people in Shelby County have carry permits, which means they have had some training on the laws governing self-defense.

The education, Givens says, is “trickling down” to friends and family members.

There were 19 fewer criminal homicides in 2007 compared to 2006. There were fewer gang killings as well, which are less likely to be viewed as justified, and there were fewer beating deaths, which, again, are rarely justifiable.

But there were more deadly shootings by law enforcement officers last year — four by Memphis police, including one by an officer assigned to a federal fugitive task force. There was also one by a Shelby County sheriff’s deputy and one by a University of Tennessee officer. All were found to be what internal affairs investigators term “good shoots.”

Tennessee law gives citizens the right to defend themselves if they have a reasonable and imminent fear of harm from a carjacker, rapist, burglar or other violent assailant. They can also employ deadly force to protect another person.

And while a diminishing number of states require citizens to try to avoid a confrontation before using deadly force, Tennessee does not have such a “retreat law.”

When someone claims self-defense, it is the burden of the prosecutors to refute that claim. Tie goes to the shooter.

“The state has to prove it was not justified. … We have the burden of proof,” said Asst. Dist. Atty. Tom Henderson, a member of the review team that determines whether killings are justified.

Even if the shooting is found to be justified, the shooter often suffers trauma. Even if the shooter is a police officer.

Henderson has seen one trend: “The more the public is afraid of crime, the less concerned they are with criminals being shot.” But he can’t say that has affected the totals for justifiable homicides.

When someone claims self-defense, detectives often have to dig to determine what happened.

They look at the forensic evidence to see if it matches up with the shooter’s story. What does the gunshot look like? Is it at the right angle, the right distance? Did anyone see a gun?

Recently, a killing that looked like a case of a citizen defending himself and his girlfriend from a burglar had an odd twist.

Investigators said Antionita Clay, 31, called boyfriend Christopher Jones and told him someone had broken into her home and might still be there.

Jones went to Clay’s Camelot Lane apartment and confronted Asa Marmon, 22, who had a stun gun. When Marmon lunged at Jones, Jones shot him.

Clay filed a burglary report and denied knowing Marmon, but investigators quickly learned that Clay and Marmon were involved sexually.

Clay told police she knew Jones had a handgun and she wanted Jones to scare Marmon.

Jones told police he thought he was confronting a burglar or rapist based on what Clay told him. Prosecutors decided Jones was justified in killing Marmon, but they still charged Clay on Dec. 28 with reckless homicide.

– Chris Conley: 529-2595

Homicide, but justified

Justifiable homicides in Memphis nearly tripled from 2006 to 2007.
2007    2006    2005
Total    164    161    153
Justifiable    32    11    12

Source: Memphis Police Department

Reader Posts and Comments

Posted by bnndNbck on January 5, 2008 at 12:44 a.m. (Suggest removal)

Bravo! When the police can’t protect me, I can protect myself.

Posted by lucky397 on January 5, 2008 at 1:49 a.m. (Suggest removal)

I have never understood cops that don’t want an educated, properly trained, authorized citizen to carry a firearm.

Thugs thrive on victims that can’t protect themselves, but when the playing field is level the whole game changes. When law abiding citizens can protect themselves, crime WILL drop. It has been proven again and again. We’re just lucky that the politicians have finally figured that out.

Now if those hold-out states will just figure it out we’ll all be better off.

Posted by ronaldojs on January 5, 2008 at 2:42 a.m. (Suggest removal)

Most cops you see and hear about who are opposed to CCW are bureaucrats\politicians appointed to their post by politicians. They will usually get the appointment based on their views being in line with the boss.

For instance, while anti gun Rudi Guiliani was mayor of NYC, his political appointments to high leadership positions in the police dept would have to be anti gun. Then they can grab headlines the Brady bunch can use: “Breaking: NYC Police Director opposes a citizens right to carry firearms, calls for stricter gun control”.

When you talk to the average cop on the street, they mostly support and encourage citizens to take responsibility for their own safety. There are a exceptions of course, cops can be liberal too.

Posted by ljsh1027 on January 5, 2008 at 5:48 a.m. (Suggest removal)

I can go along with citizens having guns if the
proper training is also taken. Anyone who does not know anything about guns should let the educated person defend. We know the thugs learned from usage, they just shoot and run. Most of the people who want to defend themselves will do so with some sort of defense education. Lets make it mandatory to have some education for usage when a gun is purchased.

Posted by tjwillmsn on January 5, 2008 at 8:07 a.m. (Suggest removal)

I oppose legally mandating education for every firearm purchase.

Most people, at least if they are using their mind, will have learned how to use the firearm before they need to use it, either in self-defense or hunting.

Many a person learned, either from camps or from parents (in my case) how to use, and the consequences of said use. So why make them take a course when they already know how to use it?

If you are talking about taking a course for open or concealed carry, the law already stipulates such before a license is issued. This includes practice, and also the legal ramifications of such.

Maybe you should advocate more practice for those who might have to use it, that way if and or when they have to use this tool, they will have to confidence to use it properly?

Posted by techjas on January 5, 2008 at 8:23 a.m. (Suggest removal)

If you’re going to carry a handgun, be sure to know the law stating under what circumstances you can use it. The responsibility of having a handgun is more than knowing from which end the bullet(s) leave the gun.

Posted by Ben on January 5, 2008 at 8:46 a.m. (Suggest removal)

We need a “Castle Law” like Florida has. This protects a homeowner from civil liability if he/she has to shoot a thug on their property in self defense.

Just think of the money the taxpayers save when a thug is legally eliminated. An added bonus is that this thug will not hurt anyone ever again either.

Posted by grgric4967 on January 5, 2008 at 9:04 a.m. (Suggest removal)

Criminals beware! If you attempt to hurt hard working people you risk being shot! This is the only deterent! They are obviously not afraid of jail!

Posted by Poohbear on January 5, 2008 at 9:15 a.m. (Suggest removal)

Ref the above posts: Folks, I think we’re on the right track…

Posted by JustWatching on January 5, 2008 at 9:20 a.m. (Suggest removal)

I carry, I go to the range. I am a Viet Nam vet.
Warning to the bad guys: I have the guts to shoot.

Posted by Mary_Prankster on January 5, 2008 at 9:37 a.m. (Suggest removal)

tjwillmsn — we don’t have to have education for every firearm purchase– if we can pass a simple 1-minute background check we can buy as many guns as we want to keep at home or at work.

We just have to take and pass a class in order to carry a handgun when we are not at home or not at our place of business.

It is kind of like farmers– they can drive all over the farm with no license, but they need to pass a test to get a license to drive on the public roads.

Posted by Mary_Prankster on January 5, 2008 at 9:40 a.m. (Suggest removal)

Sheep, wolves, and sheep dogs—

If you have a permit to carry, please carry your weapon and use it legally as you were trained to use it.

Crooks are like wolves and most people are just sheep– they are clueless and easy to slaughter.

Permit holders are like sheep dogs- they protect the flock from the wolves.

When we have enough sheep dogs, the wolves/crooks will go hungry.

Posted by doctordancer on January 5, 2008 at 9:57 a.m. (Suggest removal)

Hey Mary,
You sound like my kind of girl.

Posted by Mary_Prankster on January 5, 2008 at 10 a.m. (Suggest removal)

Goodness gracious, doctordancer, is that a revolver in your pocket or are you just glad to see me?

Posted by bblue on January 5, 2008 at 10:08 a.m. (Suggest removal)

i agree with ben. if they come on your property u should be able to kill them and not worry about being sued. kill enough of the scum bags and maybe some will get the message and just stop because they will be afraid of getting killed. they sure wont stop raping, robbing, and stealing because they were brought up not to do it.

Posted by crstuart3118 on January 5, 2008 at 10:10 a.m. (Suggest removal)

Posted by tjwillmsn on January 5, 2008 at 8:07 a.m.

“I oppose legally mandating education for every firearm purchase.”

I haven’t shot a gun (rifle) in close to 30 years. I’ve discuss getting hand guns with my wife for security. Niether one of us would consider having guns without a safety training class, in addition to some range training. While I wouldn’t want a new class for every gun purchase, I don’t see where requiring a proof of a saftey class would be a problem. After all we already have to go through background checks and need hunting permits.

Posted by Not_Chicken_Little on January 5, 2008 at 11:23 a.m. (Suggest removal)

Just remember when your life is threatened and seconds count, the police are only minutes away…

Thanks to all the people who are putting the criminals on notice – try to rob me, try to break into my home – you WILL be shot!

Posted by msgbailey on January 5, 2008 at 11:57 a.m. (Suggest removal)

Thank God for those that have a permit to carry a handgun. That is that many more criminals that will not commit those crimes again. If they were tried in the courts, they will be out in 12/18 doing the same thing again. Thank you God

Posted by yellowdogmichael on January 5, 2008 at 12:02 p.m. (Suggest removal)

I am a trained citizen. I practice at the range regularly. I carry my gun always. I am armed, and I am not afraid to shoot.

And, by the way… For those who think only conservatives carry guns, I am also a very, very liberal democrat. You never know who might be armed and ready!

Posted by Mr_Kite on January 5, 2008 at 12:18 p.m. (Suggest removal)

tjwillmsn said: “I oppose legally mandating education for every firearm purchase.”
In Tennessee there is no such requirement, anyone without a criminal record, restraining order against them or history of mental illness can buy a pistol by filling out the paperwork and providing proper ID.
In order to legally carry it for protection however, what is required is passing a course that teaches a prospective hand gun carry permit applicant the proper handling of the firearm and when and how he is allowed to actually use and carry it. Then, after this training you must pass a background check that goes all the way through the FBI with complete sets of fingerprints from both hands. I know, I have a permit. I think this is a great approach and because we have it the shootings we have are generally justified. People who use a gun without this training and information are more likely to create problems rather than solve them. They are more likely to enter an area where weapons are prohibited ignorantly with a firearm on them because they don’t know the rules. They are more likely to have the weapon taken away from them by a perpetrator and used against themselves. They are more likely to harm themselves or others because they do not handle the weapon properly. They are more likely to hurt an innocent bystander or do other unnecessary damage by shooting wildly. The controls imposed on getting the permit are very good. The rules about retaining it are kind of a game though (in TN) because if you fail to renew before expiration, you must repeat the entire process, take a course, undergo the checks again, pay the initial higher fee… The state will not notify you that your permit is about to expire and so sort of sets a trap to let this happen… If you want and need your permit, you must be responsible enough to maintain it without their assistance.
I wish everyone qualified would take the time and expense to obtain a permit. It is a great education in itself.
I rarely carry, mostly if I am having to go to bad areas of town, out shopping or doing business at odd times. I am not afraid to walk around unarmed most of the time, but I wear an expensive watch, always carry some cash and occasionally wear other very expensive jewelry. I feel safer doing this with a weapon on me, especially if I am out and about.
Thank God, I have never had to hurt anyone and if I ever have to pull the weapon out I hope (and usually) just having it is enough to deter, I and most others with a permit feel the same. We are not out to hurt or intimidate anyone without a good reason, just to feel safe and protect ourselves.

Posted by bnndNbck on January 5, 2008 at 12:45 p.m. (Suggest removal)

This is one issue that should unite us all. All segments of society are affected by violent crime and all segments of society have the right to defend themselves and should have the right to defend their property. You just can’t count on the police all of the time.

Posted by ronaldojs on January 5, 2008 at 1:16 p.m. (Suggest removal)

There is protection from civil action:

http://www.wreg.com/Global/story.asp?S=6…

Posted by mdirector2 on January 5, 2008 at 1:59 p.m. (Suggest removal)

I hope many more people get their weapons and the license to carry tham. Then maybe we can get rid of some more of these worthless, lazy, pieces of garbage that steal, rob, rape, etc.

Posted by farstars on January 5, 2008 at 2:13 p.m. (Suggest removal)

This is so wrong !
If I was walking around someone’s home stealing stuff and terrorizing people I wouldn’t want to be shot.

Posted by loctennis on January 5, 2008 at 2:21 p.m. (Suggest removal)

My step-father took a bullet from me when i was 12…trust me i’ve learned to shoot & do it well over great distances. I am now licensed for a few years & my mother is too. Its a gr8 thing to educate the oublic about the right to bear arms & protect themselves. “Thugs” pray on victims that usually are older &/or women. My mother sometimes keeps her gun visible to people so they see she can handle it. Anyway, good article & not all minorities are thugs. Look at the comment by this minority!

Posted by denniskaren on January 5, 2008 at 2:44 p.m. (Suggest removal)

We both carry, if someone tries to carjack me he will regret it.

Posted by ronaldojs on January 5, 2008 at 2:55 p.m. (Suggest removal)

loctennis,

My permit class at Rangemaster had a good percentage of black folks. My favorite instructor there is black. There were a couple older black ladies in that class, and I was glad to see they were there. Unfortunately, they probably live in the worst areas and will probably need the ability more than some of the rest of us.

The best way to spot a criminal is not the color of their skin, but their demeanor and body language.

Posted by dxs on January 5, 2008 at 3:57 p.m. (Suggest removal)

They threw around some statistics, just not the one to justify the headline. How many justifiable shootings were by CCP holders?

Posted by mduke1 on January 5, 2008 at 4:33 p.m. (Suggest removal)

How typical of the Commercial Appeal to title and start an article about one subject (justifiable homicide) and to change it to a twisted love story resulting in a reckless homicide charge. Mr Conley could have offered a better service to his readers and better support for his article by providing more factual accounts of armed citizens successfully defending themselves and their families. This simple bit of research could have been accomplished by opening the January 2008 edition of America’s 1st Freedom magazine wherein
Mr Conley could find six such examples of armed citizens defending themselves.

Posted by easygoer00 on January 5, 2008 at 5:06 p.m. (Suggest removal)

Hey you tough guys will be in great shape if you get the crooks to read the paper. All you are doing now is bragging to a bunch of ppl who read the paper daily about how tough you are.
But it does feel good,I bet. I’m all for ppl having guns.

Posted by JeremyR on January 5, 2008 at 6:28 p.m. (Suggest removal)

Times are changing. Tradesmen now must complete regular classes to remain certified in many trades. For that reason I believe that firearms training should be mandatory. Every one should have to take a firearms class. I said EVERYONE and thats just what I mean. We have drivers ed in high school. The hunter safety should be done as well.
If you oppose shooting, fine, don’t. But you should get trained in the hows, whens and whys. Bad days happen. Some day you may be in a store when a robbery takes place. What would you do if the guy next to you was an off duty, and the perp won the round? If you had the chance would you know what to do with the pistol on the floor?
Regular refresher training is important as well. An occasional trip to the range keeps the skills sharp. If you give a hoot for your own skin, stay sharp.

Posted by spamidohate on January 5, 2008 at 6:41 p.m. (Suggest removal)

tjwillmsn –

I am at odds with your comment about not having mandatory training. The training provides the legal aspect of carrying a weapon. There is more than just learning how to aim and shoot.

I think a mandatory class on the “fallout from when you shoot someone” is a good thing and should be mandatory.

Ultimately, knowledge is good thing and may save a life or two.

Posted by rjcail on January 5, 2008 at 7:14 p.m. (Suggest removal)

I actually think that there should be more training (there isn’t any required in MS) and recurring certification for a carry-permit. I’ve had a carry permit and commssion for many years, and anytime I went through a public class (and a few law enforcement classes) there were people there that just shouldn’t be allowed to carry a weapon. If you can’t hit a paper target at 7 yards in a range, you should just take the gun back and get a refund.

This is just like driving…you should be required to demonstrate your ability to handle the weapon safely and accuratly on a recurring basis.

And yes…I’m a VERY conservative politically…but would fully support this restriction on carry-permits.

Posted by CodeJunkie on January 5, 2008 at 7:29 p.m. (Suggest removal)

Anyone ever heard of Kennesaw, GA? If thugs had an idea the person they’re getting ready to rob is armed they’d think twice. It’s simple and I have a hard time understanding why you liberals can’t get it!!

http://findarticles.com/p/articles/mi_m1…

Posted by wagonburner on January 5, 2008 at 7:59 p.m. (Suggest removal)

I have a video of a rabbit chasing a rattle snake up a tree! I have seen small cats fight off big dogs. I have laughted at birds swooping down and steeling hair right off a cats back! When people fight back, the thugs often loose.

Training is always good, though not always needed. I do not think it should be required. If someone is buying a gun for home defence only, they should learn to handle it. If they are going to carry it, by law they are already required to get a permit.

I learned something a very long time ago, I have always held dear. Its better to have 12 men trying you for carring a gun, than to have 6 men carring you because you did not!

Posted by 38104 on January 5, 2008 at 9:23 p.m. (Suggest removal)

It seems that the number of citizens (residents of Shelby County)legally permitted to carry firearms is approximately 35 times the number of MPD officers, on- or off- duty.

And the number is rising daily.

Those are pretty good odds.

I I were a carjacker or some other thug, I don’t think I’d risk it.

These days, you never know who has what.

Posted by bahkah on January 5, 2008 at 10:48 p.m. (Suggest removal)

With all due respect, if the ‘detectives’ can’t figure out the causes and effects here, then Memphis really is lost.
An old maxim is that criminals commit at least 10 crimes per capture. So, on-the-scene CCW Holders/victims are doing their part to save lives and property and to reduce area crime. It doesn’t take COMSTAT to game/spin those stats.

Posted by tjwillmsn on January 6, 2008 at 6:22 a.m. (Suggest removal)

I said I oppose mandatory training for “each and every firearm purchase.” I was responding to someone further upthread.
Sheesh, you guys need to read better.

I have no problem with people getting training and much needed practice – Heck, some of Memphis Finest need more training (see article where MPD officer shot himself in the foot while being charged by a pit bull)

If people want additional training, I am quite sure Rangemaster will be happy to accomodate them. What I am opposed to is legal madates for it. A wise person will learn how to use the tools at their disposal, not go off half-cocked.

Further, tho, if you choose personally to get refresher courses to update your knowledge, that’s great and swell. But having a legal mandate aside from the CCW license starts to slide down a slippery slope of government justification of being able to use said tool.

Posted by Allie on January 6, 2008 at 3:22 p.m. (Suggest removal)

Tjwillmsn, the law isn’t there for the sake of “wise people.” Laws are for the unwise people. If everyone in the whole world was wise, we wouldn’t need any laws at all!

If you took a moment to think about some of the people you’ve met, I’d be willing to bet you’d prefer some of Memphis’s citizens to be forced to take a class before carrying a gun in places where you or your children might be close to whatever they take it in mind to shoot at. It also demonstrates that the gun owner is conscientious enough to show up and act right for long enough to pass the class.

Anyway I’m in favor of more people carrying guns for self-defense. My friend and teacher was carjacked and murdered several years ago. Her husband still regrets that she never got around to getting her carry permit.

Posted by bigmemphistn on January 6, 2008 at 11:11 p.m. (Suggest removal)

Yep, leave it to the Commercial Appeal to print such a dumb article, pointing out a new trend, yet offering no explanation.

In all of five minutes, I figured it out. Granted someone else pointed out this website, but it nevertheless contains the answer: in 2007, the self-defense laws were changed and it made it easier for someone with a permit and no criminal record to blast away in self-defense. Thus, there were more succesful justifiable homicide defenses in 2007.

http://www.wreg.com/Global/story.asp?S=6…

Posted by bigmemphistn on January 6, 2008 at 11:41 p.m. (Suggest removal)

In light of such a good article, I must say to all: well done in 2007, and let’s make 2008 even better.

If you’re reading this and do not have a firearm and/or permit, go out and get you some. It may save your life one day, and I would hope that your life is at the top of your priority list.

I have several guns: a Browning Gold Series 12 gauge and a Gloc handgun being my favorites. Of course, I have a permit, so I usually have my Gloc on my person. Rarely ever do I venture out into the streets of M Town unarmed.

This is a war we can win. We may be losing the battles, but the war is far from over. We must unite, and we must revolt!

Posted by MaxPowers on January 7, 2008 at 6:08 a.m. (Suggest removal)

Wow, the responses to this article are some of the most well written the comment section has ever seen. Clearly, this is a well educated bunch.

I would feel comfortable with any of you carrying a firearm near me. However, I fear being around the total idiots with guns: the people you see on shows like Cops and Jerry Springer. Those who get drunk and mad, and wave them around wildly.

What we need is an IQ test for gun ownership.

Posted by frank_silbermann on January 7, 2008 at 7:31 a.m. (Suggest removal)

“Henderson has seen one trend: ‘The more the public is afraid of crime, the less concerned they are with criminals being shot.'”

Yes, concern for criminals being shot is a luxury to be enjoyed by people for whom street crime is a freak occurrence. It was like that in the 1950s — we could go anywhere we pleased, day or night, without fear.

For those who don’t want robbers and rapists to be shot, the burden should be upon them to keep robbers and rapists safely away from us.

Posted by fdxjettech on January 7, 2008 at 10:22 a.m. (Suggest removal)

While I agree about education being a good idea for any gun owner, I think it would be a bad idea to tie a class requirement to the ability to legally purchase a firearm. This would give the anti-gun crowd just one more avenue to explore for denying us our constitutional right to bear arms. Stop the education classes and you dont need to ban firearms. Education good….mandatory ?…no.

Posted by someguy on January 7, 2008 at 12:11 p.m. (Suggest removal)

Disclaimer: Have my permit, carry every day and have taken two different courses of instruction (already signed up for level III class.)

I’m all for not just education, but continued education… Being statutorily qualified doesn’t mean that you’re ready in the real world.

That said, I am against MANDATORY classes, unless they’re going to be free (which is a whole different can of worms – nothing’s really free, is it?) It comes down to disenfranchising a segment of the population from their God-given (and constitutionally protected) right.

I frankly feel the same way about the TN Permit class – I have no problem with the requirement, but I don’t recall having to pay to take my Drivers’ test… I am realistic enough to see that the gov’t isn’t going to willingly give up a revenue stream, though, and I certainly don’t begrudge private companies from charging.

Bottom line: Practice often, shoot straight, seek out quality instruction as often as you can afford it, and don’t ever become complacent with your environment OR your level of knowledge. Thinking you’ve mastered it all is a sure sign you haven’t.

Posted by bab57 on January 7, 2008 at 12:23 p.m. (Suggest removal)

a gun is a lethal weapon, just like a car. if you have to have training and pass a test to drive a car, why wouldn’t you need to do the same to own a weapon? it’s not a knick-knack. if you’re buying it, you have to assume at some point you will use it. it makes sense to require people to learn how. what’s the downside here?

Posted by chall on January 7, 2008 at 3:20 p.m. (Suggest removal)

Mandatory education for buying a gun?

What part of “shall not be infringed” do some of you not understand?

Interpreting the Second Amendment is not a policy assessment.

That discussion took place 230 years ago.

Don’t tell me that I need to be educated to exercise a Constitutional right.

I have my Tn Handgun Carry Permit, I am a NRA-certified Range Safety Office, and I practice quite a bit, but that is my choice.

The right to keep and bear arms is, like it says, a right. It’s not a privilege.

Nor is the right to free speech or the right to be free from warrantless searches.

Education as to Constitutional rights is great, but it is not a pre-condition to their exercise.

Posted by ronaldojs on January 7, 2008 at 10:58 p.m. (Suggest removal)

Undestand chall, most people who post here think we live in a democracy. “Constitutional liberty” if a foreign concept and lost on the average citizen.

That is how they are beating us, the dumbing down of America, and it started with the NEA taking over the education system.

December 25, 2007

• Commonplace 2nd Amendment

Posted in From The Blog-O-Sphere, Politically Speaking, Resources at 2:24 am by Rid

The Commonplace Second Amendment

Prof. Eugene Volokh, UCLA Law School *

(73 NYU L. Rev. 793 (1998))

The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause.  Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era:  State Bills of Rights contained justification clauses for many of the rights they secured.  Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted.  In particular, the provisions show that constitutional rights will often — and for good reason — be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.

Introduction

“The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms.” 1  This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions — perhaps to the point of reading it as having virtually no effect on government action. 2

My modest discovery 3 is that the Second Amendment is actually not unusual at all:  Many contemporaneous state constitutional provisions are structured similarly.  Rhode Island’s 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 4

Compare this to the Second Amendment’s

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. 5

The 1784 New Hampshire Constitution says

In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 6

The 1780 Massachusetts Constitution — followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution — says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. 7

I list dozens more such provisions in the Appendix.               These provisions, I believe, shed some light on the interpretation of the Second Amendment:

  1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
  2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
  3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause. 8
  4. They point to how the two clauses might be read together, without disregarding either.

The provisions also suggest two things about interpretation more generally.  First, they remind us that the U.S. Constitution is just one of the at least fifty-one American constitutions in force today, and one of the dozens of constitutions that existed during the Framing era. 9  The legal academy’s understandable focus on federal matters can blind us to some important details.

Second, these provisions help show the value of testing interpretive proposals against a politically mixed range of texts.  On a topic as incendiary as gun control, it’s obviously tempting for people to reach an interpretation based largely on their policy desires.  If we want to be honest interpreters, a broad set of test cases for our interpretive method is a good tool for checking our political biases.

I.  A Normal Right

To begin with, so long as the Second Amendment seems strikingly unusual — so long as it appears to be the only provision with a justification clause — people will naturally wonder whether this oddity is some sort of signal:  Perhaps, for instance, the Framers were themselves so hesitant about the right that they intentionally tried to limit its force; in any event, they must have been telling us something, or else why would they have written the Amendment so strangely?

The state provisions show that the Second Amendment is just one of many constitutional provisions that happen to be structured this way, and that the federal Bill of Rights is just one of many that contain only one or a few justification clauses. 10  I have seen no evidence of a correlation between the presence of a justification clause and the provision’s perceived importance. 11

These state provisions also remind us that early constitutions were political documents as well as legal ones.  They were meant to capture people’s allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it.  In this context, setting forth the justifications for a provision makes perfect rhetorical sense.  This observation doesn’t dispose of the question of what legal significance should be given to the clauses once they are enacted, but it does counsel against viewing the presence of the clauses as something deeply portentous.

II.  A Permanent Right

Some people suggest the justification clause provides a built-in expiration date for the right.  So long as a well-regulated militia is necessary to the security of a free state (or so long as the right to keep and bear arms contributes to a well-regulated militia, or so long as the militia is in fact well-regulated), the argument goes, the people have a right to keep and bear arms; but once the circumstances change and the necessity disappears, so does the right. 12

This reading seems at odds with the text:  The Amendment doesn’t say “so long as a militia is necessary”; it says “being necessary.”  Such a locution usually means the speaker is giving a justification for his command, not limiting its duration. 13  If anything, it might require the courts to operate on the assumption that a well-regulated militia is necessary to the security of a free state, since that’s what the justification clause asserts. 14

But the unsoundness of the “temporary right” reading becomes even starker when one considers the other state constitutional provisions.  Consider, for instance, the New Hampshire Venue Article:

In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 15

Today few believe that the trial of the facts in the vicinity where they happen is essential to life, liberty, and property.  Perhaps this was so when most jurors were expected to rely on their personal knowledge about the facts or about the characters of the defendants and the witnesses, when travel was very difficult, or when cultural divides were primarily geographical. 16  Today, though, it’s much more common to hear insistence on a trial being moved outside the vicinity where the crime was committed, on the theory that jurors in the area of the crime would be unduly inflamed against the defendant. 17  Even those who support local trials would probably only say that local trials are helpful, not “essential”; and even those who stress the importance of trial by jurors who come from a demographically similar place wouldn’t care much about trial in the same county.               We wouldn’t, however, interpret the “is so essential” language in the Venue Article as meaning “so long as it is believed by judges to be essential.”  Bills of Rights are born of mistrust of government:  The government is barred from prosecuting cases in another county because of the fear that some future government may not be attentive enough to “the security of the life, liberty, and estate of the citizen.”  The provision’s enactors doubtless contemplated that there’d be disagreement about the value of local trials. 18  It seems most likely that they mentioned the value of local trials in the constitution to show their commitment to this position, 19 not to leave the judiciary — itself a branch of the government — carte blanche to conclude otherwise, 20 and thus eliminate the operative clause’s check on government power. 21  The trial-in-the-county provision must remain in effect whether or not a judge thinks it still serves the purpose; the provision was enacted by the people, and it’s up to the people, not judges, to decide whether it’s obsolete. 22

Likewise, consider the Massachusetts, New Hampshire, and Vermont Speech and Debate Articles, each of which provides that

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. 23

Today, many might doubt that entirely unfettered freedom of speech in the legislature — including, for instance, the freedom to defame people with impunity — is really “so essential to the rights of the people.”  It may have been seen as “essential” by people who lived in a time when speech outside the legislature was more legally constrained than it is now, or who had lived under a mighty undemocratic executive, a judiciary appointed by that executive, and a legislature that was just starting to assert its prerogatives. 24  But today, even without a Speech and Debate Article, legislators would be as free to speak their minds as are newspaper publishers, political candidates, and so on — probably free enough to preserve “the rights of the people.”  Some might even say the rights of the people today are more jeopardized by legislators’ power to slander people or order arrests or issue subpoenas without risk of punishment than they would be by legislators made timid by the absence of the speech and debate privilege. 25  Even those who disagree could probably imagine a reasonable judge taking this view.               Nonetheless, I take it courts ought not use this altered context as a reason to nullify the Speech and Debate Articles.  Bills of Rights are meant to prevent certain kinds of governmental conduct precisely in the face of claims that this conduct is more conducive to people’s greater happiness or even greater liberty.  Courts should read the provision as (1) declaring that, no matter what you or I might think, the enactors of the right believed that unlimited legislative freedom of speech was indeed essential to the rights of the people, and (2) commanding that such freedom be preserved so long as the provision remains part of the Constitution.  They ought not read it as preserving the right only so long as a court believes the right is valuable. 26  The same should apply to the Second Amendment.

III.  A Right Broader and Narrower Than Its Justification

Some argue the justification clause should be read as a condition on the operative clause:  The right to keep and bear arms is protected only when it contributes to a well-regulated militia, or only when the well-regulated militia is necessary to the security of a free State.  Thus, one commentator says, because “the Framers included a preamble to the Second Amendment . . . [i]t is at least arguable that the only ‘gun rights’ protected by the Second Amendment are those that in fact support ‘the security of a free State´ — and that might mean none at all.” 27

Again, this seems inconsistent with the text, which contains no “only when” clause.  What’s more, the text itself suggests that the operative clause is sometimes broader and sometimes narrower than its justification.  The underinclusiveness of the operative clause is uncontroversial:  The government is entitled to act in ways that are at odds with the Amendment’s justification, so long as it doesn’t deprive the people of the right to keep and bear arms.  Congress has no obligation, for instance, to properly train the militia, or to demand that it be armed. 28  Congress may even take steps that might undercut the value of a well-regulated militia to the security of a free state, for instance by creating a standing army. 29

The overinclusiveness of the operative clause is likewise evident from the text.  The operative clause says the right to keep and bear arms belongs to “the people.”  Given that “the right of the people” is likewise used to describe the right to petition the government, the right to be free from unreasonable searches and seizures, and the rights to keep and bear arms recognized in various contemporaneous state constitutions — all individual rights that belong to each person, not just to members of the militia — “the people” seems to refer to people generally. 30  The justification clause, though, refers to the militia, which has always generally included pretty much all able-bodied men from age eighteen to forty-five 31 rather than all people. 32  People who aren’t in the militia, such as men over forty-five, 33 or those few whose professions have generally exempted them from militia service — such as ship pilots or post office employees 34 — don’t seem to further the purpose set forth in the justification clause, but their rights are still covered by the text of the operative clause.

Thinking about the other constitutional provisions further reminds us that we shouldn’t expect an operative provision to fit perfectly with its justification.  Let’s return for a moment to the New Hampshire Venue Article:

In criminal prosecutions, the trial of the facts near where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 35

The operative clause doesn’t serve the Article’s purposes in every case:  Some transfers from one county to another might actually bring the trial closer to where the crime took place.  Likewise, the trial of facts in the vicinity where they happen isn’t always essential to the security of life, liberty, and estate — for instance, if the defendant and the witnesses are unknown to the jurors, the defendant lives as far from the proposed alternate venue as from the county where the crime was committed, and the proposed venue and the county where the crime was committed are demographically similar.  Still, the provision means what it says:  The trial must be in the county in which the offense took place. 36  The provision is quite explicit about what is to be done, regardless of whether the particular application of the provision would serve its broader purpose.               Likewise, consider the New Hampshire Ex Post Facto Article:

Retrospective laws are highly injurious, oppressive and unjust.  No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offences. 37

One can probably imagine situations where retrospective laws, especially civil ones, are not in fact injurious, oppressive, and unjust (or at least not highly so). 38  Even those who believe that all ex post facto laws are highly unjust would probably concede that some reasonable judges could take a different view.  And yet the provision bans all ex post facto laws, not only the highly unjust ones.               These provisions, like constitutional rights provisions more generally, don’t just announce a purpose and ask courts to do whatever the judges think fits the purpose.  Their enactors could have done so — they could have broadly required “the trial of the facts near where they happen,” or required “the trial of facts in a way conducive to the security of the life, liberty, and estate of the citizen,” or banned “highly injurious, oppressive and unjust” laws generally.  But they instead chose to impose much more specific constraints, constraints that are both over- and underinclusive.

Those who enacted the Bills of Rights apparently didn’t trust courts to decide for themselves what’s “conducive to the security of the citizen” or what’s “highly injurious, oppressive and unjust,” or even what’s “near.”  They meant to constrain courts, not to leave them with complete discretion to do justice any way they think best.  The enactors had broad ends in mind, but they chose to serve those ends by enacting into law some particular means. 39

So it is with the Second Amendment.  The Framers may have intended the right to keep and bear arms as a means towards the end of maintaining a well-regulated militia — a well-trained armed citizenry 40 — which in turn would have been a means towards the end of ensuring the security of a free state.  But they didn’t merely say that “a well-regulated Militia is necessary to the security of a free State” 41 (as some state constitutions said), or “Congress shall ensure that the Militia is well-regulated,” or even “Congress shall make no law interfering with the security of a free State.”  Rather, they sought to further their purposes through a very specific means. 42

Congress thus may not deprive people of the right to keep and bear arms, even if their keeping and bearing arms in a particular instance doesn’t further the Amendment’s purposes.  As the other state constitutional provisions show, there should be nothing surprising in this.  When you mean to check government authority, 43  you do this by imposing specific commands on the government, even if they sometimes don’t match your purposes perfectly, rather than by letting the government decide how it thinks the purposes can best be served.

IV.  What the Justification Clause Might Mean

What then does the justification clause mean?  It might have a political and educational goal — stressing to the public and government officials the connection between an armed citizenry and freedom, 44 just as other provisions may aim to persuade people about the desirability of “a more perfect Union” 45 or the virtue of local trials 46 or the importance of the liberty of the press. 47  But we still properly expect the clause, like all constitutional provisions, to have some legal meaning.  To borrow from United States v. Miller, 48 the only 20th-century Supreme Court case that deals with the Second Amendment at any length, it seems reasonable to say:  “With obvious purpose to assure the continuation and render possible the effectiveness of [the Militia] the declaration and guarantee of the Second Amendment were made.  It must be interpreted and applied with that end in view.” 49

I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause:  To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can’t take away what the operative clause provides.  And because we know that operative clauses may be at times broader and at times narrower than justification clauses, we should accept that the two clauses will sometimes point in different directions.

This might seem like a gossamer distinction, but it’s what we would try to do with regard to the other constitutional provisions I’ve mentioned above. 50  (It’s also consistent with the general rules of statutory construction used in the late 1700s and 1800s. 51)  Does “no crime or offence ought to be tried in any other county than that in which it is committed” 52 prohibit hearings on preliminary motions — such as challenges to the sufficiency of an indictment — in another county?  Since the justification clause says that “the trial of the facts in the vicinity where they happen is so essential to the security of . . . the citizen,” the term “tried” in the operative clause should probably be read as covering only trial of the facts, not determination of purely legal questions. 53  But I assume that we’d reject a construction that allows a trial in another county, no matter how close the other county might be or how irrelevant the venue might in this case seem to preserving “the security of the life, liberty, and estate of the citizen.”  Likewise, when it is said that “any person may publish his sentiments on any subject,” 54 a justification clause stressing “the liberty of the press” can’t limit the right only to members of the institutional press.

“County” and “person” are, of course, particularly unambiguous terms; let’s consider a vaguer provision.  Say that a person is on trial for publishing books condemning private property.  He claims his speech is protected by a provision that says

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 55

The government argues that any speech that undermines “the security of freedom in a state” is per se an “abuse of . . . liberty,” and that the speech here undermines freedom because history shows that private property is necessary for freedom. 56               I take it that, though “abuse” is a vague term, we’d still try to make sure that the justification clause not trump the operative clause.  We’d consider the fact that “abuse” seems to suggest harmful use, and not merely use that’s inconsistent with the liberty’s justifications; thus, we’d probably demand at least that the speech have some substantial tendency to cause harm.  We’d also consider the fact that the operative clause is useful only if it’s a meaningful constraint on government discretion:  If the government can suppress any speech that it believes in some way undermines freedom, then this constraint disappears. 57  We’d recall that the provision protects “the liberty of the press,” and not “conduct that supports the security of freedom in a state,” and that the operative clause can does not seem limited to speech that would directly serve the purpose expressed in the justification clause.

The line between interpreting the operative clause in light of the justification clause and interpreting the justification clause to trump the operative clause is of course fairly uncertain.  Many problems of statutory construction are uncertain.  But the various constitutional provisions I collect here suggest that the line must be and can be drawn.

Let’s consider a few questions raised by the Second Amendment.  Whose rights does it secure?  The Second Amendment says the right is “the right of the people”; the First, Fourth, and Ninth Amendments use this phrase to refer to an individual right.  Early Kentucky, Massachusetts, North Carolina, Pennsylvania, and Vermont Bills of Rights speak of “the right of the people to bear arms.” 58  Since these provisions secure rights against the state governments, they must recognize a right belonging to someone other than the state or entities whose membership is defined by the state — this likewise suggests that “the right of the people to bear arms” refers to a right of individuals.

The justification clause can’t transform this rather unambiguous term into “the right of the States” or “the right of the militia.”  (Miller, in fact, never suggested that it did. 59)  True, reading “people” to refer to each person might mean that the right is somewhat broader than the justification, but one should expect the possibility of a mismatch between justification clauses and operative clauses:  The means chosen to serve the end will often be somewhat broader or narrower than the end itself.  But it’s the means that are being made into law.

What arms may be kept and borne?  Here Miller might well have been right to consider the justification clause.  Miller was indicted for transporting a sawed-off shotgun, in violation of the National Firearms Act of 1934. 60  There was no evidence introduced in any proceeding that this kind of weapon was useful to a citizen-militiaman, 61 and the Court held that such utility wasn’t so well-known that it could be judicially noticed. 62  The Court thus concluded that

[i]n the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 63

“[A]rms,” unlike “the right of the people,” is used only once in the U.S. Constitution, and rarely in early state constitutions.  Its meaning isn’t made clear by these provisions, and it’s plausible to interpret it as referring to something less than all the weapons known to humanity.  Reading “arms” as referring to weapons valuable to people as members of the militia thus seems textually consistent with the operative clause.  It also doesn’t nullify the right by making it easily evadable by those whom it’s meant to constrain.

What about a claim that, say, “to keep and bear arms” refers only to people’s keeping arms in state-run arsenals, and bearing them while they are under the direct command of state officers?  This position seems inconsistent with the operative clause (and again Miller did not hold this). 64  As I mentioned above, a right of the people to bear arms (or to keep and bear arms) is present in the pre-1791 constitutions of four states; because this right against the state government can’t be at the sufferance of the state, “the right of the people to bear arms” seems to have meant a right to have arms even without state authorization.  The Indiana, Kentucky, Missouri, Ohio, Pennsylvania, and Vermont provisions guaranteeing the right of the people to bear arms in “defense of themselves and the State” 65 likewise suggest that “bearing arms” meant more than just bearing them under state control.  What’s more, under the Militia Clauses, the federal government could at any time take direct command of the militia away from the states. 66  If the right was only a right to possess arms under the supervision of one’s militia superiors — who might well be under federal command — then the right would impose little constraint on the federal government.

Referring to the lessons learned from the other constitutional provisions won’t turn interpreting the Second Amendment into a mechanical process; no interpretive theory can promise this.  But the other provisions do show that it’s possible to interpret an operative clause in light of a justification clause without reading either out of the constitutional text, and without incorrectly insisting on each being coextensive with the other.

Conclusion

For better or worse, interpreting legal texts is a mushy business.  Lawyers who support a particular result on policy grounds can often come up with an interpretation that reaches this result, and even persuade themselves that it’s the best interpretation.

At the same time, I write from the premise that interpreting a text is not the same enterprise as reading the text to achieve whatever policy result one prefers.  Legal texts should to some extent constrain their interpreters, and interpreters should try to subordinate their policy views (even if they cannot ignore them entirely) to the inquiry into what the text says.  Sometimes, the interpreter must say, “Too bad, the best reading of the text is one that produces a result I dislike, but I guess I’m stuck with it.”  Interpretation means sometimes having to say you’re sorry.

One way of testing one’s interpretive approach — of distinguishing honest interpretation from mere inscription of one’s own policy preferences on the text — is applying it to a wide array of texts of different political valences.  It’s easy enough to craft an interpretive trick that reaches the result one wants in the case for which it was crafted.  But when one tests it against other provisions, one sees more clearly whether it’s a sound interpretive method.

My modest discovery is that the Second Amendment belongs to a large family of similarly structured constitutional provisions:  They command a certain thing while at the same time explaining their reasons.  Because some of the provisions appeal to liberals and some to conservatives, they offer a natural test suite for any proposed interpretation of the Second Amendment.  If the interpretive method makes sense with all the provisions, that’s a point in its favor.  But if it reaches the result that some may favor for the Second Amendment only by reaching patently unsound results for the other provisions, we should suspect that the method is flawed.

December 24, 2007

• Vanishing 2nd Amendment

Posted in From The Blog-O-Sphere, Politically Speaking, Resources at 4:30 am by Rid

The Amazing Vanishing Second Amendment

Prof. Eugene Volokh, UCLA Law School *

(73 NYU L. Rev. 831 (1998))

 

I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” 1 A part of the Bill of Rights has mysteriously vanished.

This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” 2 As the Court said when defending another unpopular right:

If it be thought that [a right] is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process. 3

And yet by an interpretive feat, a right specifically guaranteed by the Bill of Rights is gone. How is this vanishing act accomplished, and which rights can it turn to next? 4

I. “The Body of the People” and the Operative Clause

Professor Williams begins by claiming that, even setting aside the justification clause, 5 the Second Amendment’s operative clause — “the right of the people to keep and bear arms shall not be abridged” — doesn’t recognize a right of individual persons. Rather, he argues, it protects only “the right of the Body of the People,” “the people considered as a unified, homogeneous, organic, collective body devoted to the common good.” And “[b]ecause we no longer have a Body of the People, . . . the amendment simply cannot mean what once it meant.” 6

That’s a creative theory, but is it supported by the evidence? The clause itself speaks of a “right of the people,” the same language that’s used immediately before in the Petition Clause and shortly after in the Fourth Amendment. This seems like a strong suggestion that the right to keep and bear arms likewise belongs to each individual person.

Of course this suggestion might be rebutted by contrary evidence from other sources, such as the operative clause’s historical antecedents. None of them, though, mention any “Body of the People.” The English Bill of Rights provision on which the clause is based speaks of the right of “subjects.” 7 The 1776 North Carolina, 1776 Pennsylvania, 1777 Vermont, and 1780 Massachusetts Constitutions speak simply of “the right of the people,” with no hint of a “Body of the People”; the 1790 Pennsylvania and 1792 Kentucky Constitutions even more unambiguously speak of “the right of the citizens”; the 1796 Tennessee Constitution speaks of “the right of the freemen”; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitutions refer to the right of “every citizen.” 8

All the material I’ve seen suggests that these provisions were considered at the time to be basically similar. I know of no evidence that some were seen as creating an individual right and some as creating a right of a “Body of the People.” 9 This suggests that “the right of the people” means the same thing as the right of “subjects” or “the citizens” or “every citizen” — not of some “Body of the People.”

What about the commentators? Sir William Blackstone described the English right as the “right of the subject.” 10 St. George Tucker treated Blackstone’s “right of the subject” as equivalent to the Second Amendment’s “right of the people.” 11 William Rawle likewise treated the Second Amendment as an expansion of the English right of “subjects,” and seems to have assumed the right could be exercised even “by a single individual.” 12 Justice Joseph Story called the American right a “right of the citizens.” 13 Nowhere is there any hint that the right belongs not to each person, subject, or citizen, but to some “Body of the People.”

Finally, would it have made sense, in the legal environment of the time, for the Framers to recognize a constitutional right possessed by a “Body of the People”? Professor Williams admits, as he must, that the right does not belong to the states. 14 He claims it does not belong to individuals. But if that’s so, how can some intermediate entity — an entity with no independent legal existence and no official spokespeople who could assert the right — have a constitutionally guaranteed right that individual citizens do not have? I’ve seen no evidence that the Framers envisioned constitutional rights operating this way.

II. “The Body of the People” and the Justification Clause

So where does this “Body of the People” come from? Well, it does appear in one related state constitutional provision of the time, the Virginia Militia Clause: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.” 15 The Virginia Constitution lacked a right to keep and bear arms until 1971, but the Virginia Militia Clause indeed seems to have been a forebear of the Second Amendment’s justification clause. The Virginia ratifying convention included it in its proposals for a federal Bill of Rights, and the North Carolina, New York, and Rhode Island proposals — which were generally based on the Virginia proposal — copied this provision. 16

I’m not persuaded that the “Body of the People” here means “the people considered as a unified, homogeneous, organic, collective body, devoted to the common good.” 17 It seems to me to stand only for the bulk or great majority of the people. 18 But in any event, these provisions merely show that the militia consists of the body of the people. And the operative clause speaks of a “right of the people,” not a right of the militia.

So to get to his conclusion, Professor Williams must take two extra steps. First, he must conclude that the operative clause, which recognizes a right of “the people” (equivalent, as I argue above, to a right of each citizen or subject), should be read in light of the justification clause as creating a right of “the body of the people.” Second, he must conclude that, though the body of the people still literally exists, it no longer serves the purpose that was supposedly envisioned by the framers of the justification clause: Arming the body of the people is no longer necessary, or even helpful, to the security of a free state.

Thus, the argument must go, because the assumptions underlying the justification clause are no longer true, the right created by the operative clause has disappeared. This is basically the argument I attribute to Professor Williams in my Article. 19 Professor Williams does indeed argue, under his “unitary” method of interpretation, that the right exists only so long as the justification remains valid.

Here is where I would have liked to see Professor Williams confront my core observation — the existence of the other state constitutional provisions that contain justificatory clauses. Would his “unitary framework” apply to the state Speech and Debate Articles or the New Hampshire Venue Article? Should they also be “meaningless” to judges who conclude that the Articles’ justifications are no longer valid? Do the state Liberty of the Press Articles vanish because we no longer have a virtuous, republican press? 20

Madison’s original draft of the Seventh Amendment’s Civil Jury Trial Clause read, “In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.” 21 Has this right also become “meaningless” or “outdated” as enlightened opinion has retreated from the premise that the civil jury trial is indeed “one of the best securities to the rights of the people”? 22 After all, if the people have lost the virtue needed to possess arms, maybe they’ve also lost the virtue needed to serve on juries. 23

As I argue in my Article, the state constitutional provisions show that many operative clauses will be overinclusive and underinclusive with respect to their justificatory clauses: Checks on government authority often take the form of bright line rules that don’t perfectly fit their justifications. 24 If I’m right in this, then a “unitary” framework that insists on trying to “make the two clauses as consistent as possible” 25 — thus ignoring the possibility of intentional over- and underinclusiveness — is the wrong way to deal with justification clauses.

But even if I’m wrong, it might have been profitable for Professor Williams to

test[] [his] interpretive approach [by] applying it to a wide array of texts of different political valences. It’s easy enough to craft an interpretive trick that reaches the result one wants in the case for which it was crafted. But when one tests it against other provisions, one sees more clearly whether it’s a sound interpretive method. 26

III. The Unchanged Changed Circumstances

Professor Williams conjures with more than just the text and original meaning; he also makes a changed circumstances argument. The Second Amendment, he concedes, once recognized a right that was a potent check on the government, but today things are different. The Second Amendment “by its own terms . . . makes sense ‘only so long as pretty much everyone has arms, and so long as the arms-bearers are “virtuous,”´” 27 because otherwise the arms “will necessarily be [used] in the interests of a slice of the population, rather than for the common good.” 28 And today, “the American citizenry is so fractured . . . that [a true] Revolution [made by the Body of the People for the commonweal] is impossible.” 29

Rather than “pretty much everyone [having] arms,” 30 “gun ownership today is markedly demographically skewed.” 31 “Today, because of social changes, we can see [as the Framers did not] the possible contradiction between [the people as individuals and the Body of the People], as American citizens are more individual than ever, but they have given up aspirations to peoplehood in the strong republican sense . . . .” 32 Today, there “no longer exists” the “organic collectivity” on which the Second Amendment is based. 33 “[T]he Framers did intend to guarantee a right for all Americans to own guns, but . . . they presupposed that Americans would have a collective identity that they now lack.” 34 Americans once had this right, but things are different today, so the right is gone.

But Professor Williams provides no evidence that the circumstances on which he relies have actually changed. Sure, American society today is to some extent fractured. So was American society in the late 1700s, when Americans divided in their loyalties in the Revolutionary War, 35 in their private economic and religious interests, 36 along geographical lines, and in other ways. 37 Now as then, many look out for the common good, and aspire to “peoplehood in the strong republican sense.” Then as now, many people instead focused on individual or factional interests. The notion of a virtuous “organic” republican past, as contrasted to a fragmented collective-identity-less present, is myth. 38

Likewise, gun ownership today is indeed not universal — about 35% to 50% of all households now have guns 39 — but Professor Williams gives no evidence that things were ever different.

[2002: The accuracy of Professor Bellesiles’ research has been cast into very serious question, so I have to, with apologies to my readers, retract the material in the next two sentences. Nonetheless, I believe my broader point remains correct; I doubt that gun ownership around the time of the Framing was materially higher than the 35-50% ownership level today, and Professor Williams definitely does not give any evidence that Framing-era gun ownership was above 35-50%.

— Eugene Volokh.]

In fact, historian Michael Bellesiles (who opposes the individual rights theory of the Second Amendment) has estimated that gun ownership levels in the late 1700s were lower than today, perhaps 15% of all households. 40 Professor Bellesiles estimates that in 1810, no more than 5% of Americans, or 20% of adult white males, were armed. 41

[End of retracted material.]

Today 25% to 30% of adult Americans, and about 40% to 50% of adult males, own guns. 42 Even without these estimates, it seems quite plausible that the fraction of late 1700s households who possessed what was at the time quite an expensive piece of technology would not have been much greater than 35% to 50%.

Similarly, gun ownership today is indeed demographically skewed; for instance, 44% of white households and only 29% of black households own guns. 43 But we have no reason to believe that ownership wasn’t skewed in the late 1700s, whether by race, ethnicity, or geography. 44

The Framers well understood human selfishness and the tendency of society to “fracture.” The drafter of the Second Amendment, after all, also wrote about the inevitability of “faction” — “citizens . . . united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 45 I suspect the Framers knew that their neighbors were not “a unified, homogeneous, organic, collective body, devoted to the Common Good,” 46 and saw that they did not all own guns. How then can it be said that the Second Amendment “by its own terms . . . makes sense ‘only so long as pretty much everyone has arms, and so long as the arms-bearers are “virtuous”´” 47 — a supposed condition precedent that was false even when the Amendment’s “own terms” were written? 48

Professor Williams’s argument reinforces my skepticism about reading justification clauses as excuses to nullify rights. If we authorize judges to conclude that, because of some supposed historical change, a constitutionally guaranteed right is “outdated,” we jeopardize all constitutional liberties — including those secured by the Speech and Debate Articles, the Liberty of the Press Articles, the Civil Jury Trial Clause, and any other constitutional provision that indicates, explicitly or even implicitly, 49 its justification. Is this how a Bill of Rights should be read?

IV. Avoiding Amazing Vanishing Acts

My interpretive approach is built on the notion that Bills of Rights are aimed at constraining the government. This is why operative clauses are often overinclusive and underinclusive with regard to their justifications, and why we shouldn’t adopt interpretive methods that let courts read justification clauses as implicit authorizations for making rights vanish. 50 I try to support my approach by giving examples from other constitutional provisions, ones I like and ones I dislike, ones that appeal to the Left and ones that appeal to the Right. There’s a certain discipline that comes from recognizing that the interpretive method we sow today for one provision might be reaped by us tomorrow for another.

My approach, as my Article concedes, has its difficulties. 51 But at least it doesn’t lead to a right mysteriously vanishing on the grounds that some find it “meaningless” and “outdated.” That, it seems to me, is a point in favor of my method — especially when there are other rights that many would happily read out of our Constitution.


 

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