Advocates Argue History of the 2nd Amendment

[Gunners762]

Monday's event on the Heller v. District of Columbia gun rights case, sponsored by the American Constitution Society and the Federalist Society, felt more like a lesson in history than a legal battle. Attorneys Tom Goldstein, arguing for the District, and Alan Gura, speaking for the gun owners, took those in attendance into the depths of Constitutional history. Instead of sifting through precedent, most of the lunch hour conversation was spent attempting to come to grips with the framers' understanding of their own society and what those few lines in the Second Amendment were meant to say.

The reason that the event was so filled with history is the same reason that so many students showed up to hear the two advocates discuss the case; there has been essentially one Second Amendment case to ever go before the Supreme Court, the 1939 case of U.S. v. Miller, which left no one with a sense of where the Second Amendment stood.

What makes the Heller case (formerly Parker v. District of Columbia) so intriguing is that it is a "pure" Second Amendment case. The law in question covers the District of Columbia, meaning that no incorporation issues arise regarding the Fourteenth Amendment. Moreover, the law in question essentially bans handguns, and very severely limits ownership and usage of so called "long guns" such as shotguns, even in a person's own home. This means that instead of working at the margins of regulatory review, the case is at a point where both sides admit that the law would violate the Second Amendment if in fact the Amendment protected an individual right to bear arms.

The case cuts through to the core question of whether or not the Second Amendment protects an individual right to bear arms or whether the amendment dealt only with "militia" usage of weapons. It is also what led the panelists to approach the issue not just with the limited precedents available, but with a full-fledged journey into textual analysis and writings by the founders, and other historical approaches.

Arguing the position of the District of Columbia, Goldstein, an appellate lawyer at Akin Gump, began by noting that his position is also the position of mainstream legal thought. He then set about to connect the notion of an individual's right to carry arms with a militia purpose. Reading the preamble of the Second Amendment Mr. Goldstein focused on the fact that the militia portion gives a context to the right involved. He also noted that the terms "to keep and bear" at the time of their writing were terms that spoke of military usage.

He then went into historical analysis of the effect of Shay's Rebellion, the fight over the notion of a standing army at the Constitutional Convention, and the fact that the Federalists and Anti-Federalists had different conceptions of control over the militias. In looking at these aspects of history, he came to the proposition that the Second Amendment was meant primarily to prevent the federal government from allowing the militias to wither away unsupplied. While acknowledging fall-back arguments, Mr. Goldstein's main reasoning centered on the connection through words and intentions of the Second Amendment to the militias, not to individuals.

Unsurprisingly, Gura took a historical path through the time of the founders and managed to arrive at a completely different position on the notion of an individual right to bear arms. In looking at the preamble, Gura noted that preambles in the copyright clause and other places are given little weight, especially with "clear" language following them. He then went through the historical motivations of the founders and noted that one of the central acts the colonists noted in their march toward revolution was the disarming of Boston by General Thomas Gage. He mentioned how founders such as Jefferson, Adams, and Madison wrote of their belief in an individual right to bear arms, and how the notion of a militia is much broader than the view taken by Mr. Goldstein. In looking at these and numerous other historical analogies Mr. Gura concluded that the right to bear arms applied to the people themselves.

The Heller case gets to the heart of the issue of gun rights in America, and to resolve the issue, some sort of analysis of the history of the Second Amendment will have to be done. To see both sides of the case tear through the history and come up with different bases for their sides is to understand why the issue divides scholars, such that it has been said that Robert Bork is on the District's side and Prof. Tribe is on the gun owners side.

Heller v. D.C. is one of the most anticipated cases of the Supreme Court term. It will be argued March 18th.
http://media.www.hlrecord.org/media/storage/paper609/news/2008/02/07/News/Advocates.Argue.History.Of.The.2nd.Amendment-3195814.shtml

[DblTap]

Arguing the position of the District of Columbia, Goldstein, an appellate lawyer at Akin Gump, began by noting that his position is also the position of mainstream legal thought.

This is what's popular right now. That's a funny argument for a lawyer, isn't it? Especially when everyone who can read English knows that the militia and the People were the same group when the Framers referred to them. It's obvious that the 2nd amendment is an individual right, our forefathers didn't put amendments into the Constitution to give the Government more power or control, they did it for the people. DC has to lose on this one, otherwise our govt. condones gun control and is no longer using the Constitution.

[Rich Z]

All they need to do is to come up with a definition of "the people" that is consistent all throughout the document. It can't mean one thing one place and then another somewhere else within those same pages.

[cutter]

I agree with you, Rich. I also vehemently defend the individual right interpretation of the 2nd. Still, the militia clause at the beginning of the ammendment is a sticking point and what gives the Anti's their foothold. The confusion regarding the words "the people" centers around the question of whether those two words refer to each person individually or the American people collectively.

The individual interpretation: "The people" is used in the ammendment to refer to each citizen individually without naming each and every one of them separately in the document. This individual, separate naming would be impossible as the Founders could not know each individual of future generations. It follows that a populace, fully armed in its totality, is necessary to insure that the Militia, or citizen army, can and will be available in a condition to properly execute its duty of defending the Nation while at the same time being able to prosecute the Nation's wars if necessary. In closing, it is the right of each citizen to be armed in order to insure the existence and effectiveness of the militia, or citizen army. That right, in turn, compels each citizen to suitably arm and equip themselves for service in said militia as a responsibility of their citizenship. They are further compelled to render their service in the militia when needed to defend their nation and, by extention of the definition, themselves.

The collective interpretation: This interpretation views "the people" as citizens of the several states independently rather than the nation as a whole. These state citizens have a collective right to arm the designated defenders of their separate states in order to defend that state alone. While most states have language in their state constitutions or attendant laws establishing a state militia that is beholden to none but that individual state and is not subject to control by any other state or the Federal Government, those state militias largely disappeared with the advent of the Federally created National Guard. Those militias were supplanted with these Federal "home guard" or "state guard" units. The folly in this position is that the National guard is just that, a national guard, not a state guard. They are beholden to the state Governer until the whim of the President places them instead under the control of the Federal Government. Noone can faithfully serve two masters. This holds true with the guard as well as with any individual. The loyalty to one master will inevitably overrule the loyalty to the other. Further, the collective right theory places responsiblity to protect and defend the Nation and its Citizenry in the hands of the Government. This arrangement is exactly the one which our Citizenry fought the Revolutionary War to throw off.

Lastly, as with all documents, our Constitution's interpretation suffers from semantics. The grammer, syntax, and individual word meanings in any language will inevitably change over time. Certainly our Americanized English of today is a very different language than the King's English our Founding Fathers spoke and wrote 232 years ago. It is inevitable that some things will be lost in translation, just as some meanings are lost in translation between languages totally foreign to one another. In order to properly interpret the Constitution, we must be able to speak the language of another time and have sufficient understanding of it to carefully and accurately translate its meaning into the words of today. This is the task that awaits the SCOTUS. I firmly believe that the stakes are nothing less than the survival of our Nation as a free one.