Letters

From the June 1996 issue

(Page 2 of 2)

I must raise strong opposition to Daniel D. Polsby when he asserts, under the guise of community interest, that it may be permissible to insist "that those who keep and bear arms receive adequate education...to assure the responsible exercise of this right."

Any community mandate that requires anything before you can exercise a right degrades that right to a privilege. Rights require no permission nor any requirements to exercise them. I require no special training or classwork to write an editorial, nor to practice my Judaism. If the Second Amendment is to gain the same respect as the others, it must be treated as such. There are already civil and criminal penalties if you negligently keep and bear arms. Possible negligent use of this right is not an excuse to condition the people's exercise of it.
Cory Brickner

I am a big fan of Daniel D. Polsby's work on the Second Amendment. But I must express my disappointment that Prof. Polsby did not set the record straight about the erroneous punctuation that is nearly always given the amendment. Most reproductions contain a plethora of commas that confuse people because they are illogical: "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." But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. (The letter is reproduced in J. Neil Schulman's Stopping Power.) That version contained only one comma, after the word state, just as we would punctuate it today. If the superfluous commas have confused people about the amendment's meaning, that cause of confusion is now removed.

Sheldon Richman
Washington, DC

The question of the upper boundary of arms protected by the Second Amendment is a thorny one, as Daniel D. Polsby's article indicates. Certainly militia weapons are protected, as decided in U.S. v. Miller (1939). Militia weapons of the revolutionary period included cannons. But are militia weapons the only weapons so protected? Not necessarily. There is also evidence of an even wider range of free ownership of weapons within the body of the Constitution. "Congress shall have power...to grant letters of Marque and Reprisal" (Art. I, Sec. 8). A Letter of Marque and Reprisal is the legal distinction between a privateer and a pirate. It authorizes the owner of a privately owned warship to make war on the enemies of the issuing government. Clearly the framers contemplated privately owned warships. Indeed, the Continental Congress had issued such letters to American and French warships. Why should privately owned warships not be protected by the Second Amendment?
Charles Curley

Daniel D. Polsby replies: Thanks to Profs. Reynolds, Powe, McAffee, and Stell for their generous comments about my article. I accept Mr. Richman's correction regarding comma placement, though I think there is absolutely nothing one can do in the realm of punctuation to make the Second Amendment recognize a right other than that of "the people to keep and bear arms."

Though I am ultimately unpersuaded by his argument (and refutation must wait for another day), Cory Brickner does make an important point. There is tension between the notion of "rights" as a hedge against governmental abuse and the idea of government as an appropriate regulator of rights. It would certainly be unconstitutional for a state to make a person's free speech rights contingent on his having a certain amount of education. Why should the right to keep and bear arms be any different? I don't think a persuasive answer to this question can be constructed around the proposition that firearms are more virulent than words. The political speech of ignorant men has always been far more dangerous than the negligence or stupidity of gunowners. Charles Curley is correct that the founders contemplated private warships. But although Congress has the power to authorize the private ownership of such heavy armaments, it does not follow that anyone has a Second Amendment right to such weapons. Absent case law, of course, the question of what "arms" the people have a right to keep and bear will remain debatable.

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