Gun Fights

Daniel D. Polsby's article "Second Reading" (March) on the Second Amendment does an excellent job of summarizing the scholarly literature on the right to keep and bear arms. It is unfortunate that the academic writing in this area has received so little attention from courts and the popular press, essentially the only place where the discredited "collective right" approach still holds sway.

What is ironic is that gun control proponents who ignore or dismiss the Second Amendment's individual right to arms have actually made their own task more difficult. My state, Tennessee, passed a background check law more stringent than the Brady Bill with little fanfare some years ago, in no small part because the Tennessee state constitution has been interpreted to protect an individual right to keep and bear arms.

If the Supreme Court were to interpret the Second Amendment the same way, gun owners would have less reason to fear creeping confiscation, and sensible gun control laws–those aimed at disarming criminals, not ordinary citizens–would pass much more easily.

Glenn Harlan Reynolds
Associate Professor of Law
University of Tennessee College of Law
Knoxville, TN

Daniel Polsby's insightful article aptly demonstrates the consequences of the Second Amendment's seeming irrelevance in the debates over gun control. Because the Supreme Court avoids the amendment completely, no one else wants to think seriously about it either. Polsby is right on the money when he notes that "one of the by-products of the political polarization concerning the Second Amendment is that all sides seemingly agree [that what might constitute an abridgement of the right to bear arms] is a question that need never be seriously addressed." On the evening news of March 21, we saw Reps. Patrick Kennedy (D-R.I.) and Gerald Solomon (R- N.Y.) go out of their way to prove Polsby's point.

The two had an extraordinary exchange in the House debate over whether to repeal the assault-rifle ban. Kennedy came to the floor shaking with anger and attacked the Republicans: "Families like mine all across this country know all too well what the damage of weapons can do. Shame on you! There are families out there you'll never know–Mr. Chairman, you'll never know what it's like because you don't have someone in your family killed."

Solomon then responded in kind, literally shouting: "My wife lives alone five days a week in a rural area in upstate New York. She has the right to defend herself when I'm not there, son! And don't you ever forget it."

The exchange–where Kennedy was referring to literally any weapon and Solomon conjured up the image of his wife watching Letterman with an AK-47 by her side–was surreal. Kennedy's implicit assumption is the dominant one–that any ban on guns is constitutional because the Second Amendment means nothing. Solomon seems to believe the opposite: Any ban on guns is unconstitutional because the Second Amendment is absolute. Both are wrong.

There was a similarly sterile First Amendment debate 35 years ago over (supposed) internal security regulations, but it was wisely broken by three common sense observations: What is in the Constitution matters. Freedom of speech can't be absolute, but is a protected right. Therefore its dimensions should be ascertained and it should force a would-be abridging legislature to have a good reason to override the right.

Polsby is correct in wishing a similar future for the Second Amendment whereby each side would eschew its absolutism and recognize that there is a right to own guns, but under some circumstances the government may limit the ownership of certain types of weapons. Then the debate could eschew cheap shots and properly focus on how substantial the need for the legislation is and whether it shows any promise of meeting its articulated objectives.

L.A. Powe Jr.
Professor of Law and Government
University of Texas
Austin, TX

A student of mine insisted on doing a Second Amendment paper a few years ago, and at the time I viewed it as roughly the equivalent of writing on whether Congress could issue paper money–an issue resolved immediately after the Civil War. Until then I had taken for granted what is a conventional wisdom, that the Second Amendment is about militias, not personal ownership of firearms; any other view was simply National Rifle Association propaganda long since rejected, for good reasons, by the courts.

In the last five years or so, I have become acquainted with the textual and historical literature relating to the Second Amendment. Polsby's treatment summarizes a record that is indisputable. The Americans understood their English rights to include a personal right to have firearms, and they were deeply committed to a militia system that presupposed universal gun ownership. Given my own review of this history, the saddest comment of all is that modern liberal constitutional law scholars have lent the authority of their presumed expertise to the anti-gun movement by claiming that the history shows that the amendment intended only a right for states to have militias with which to counter federal power. I don't know which is the most disturbing in such claims by people who could so easily know better: the infidelity to the original meaning of the Constitution or the lack of commitment to canons of objectivity about historical and textual scholarship.

Former Chief Justice Burger suggested that the personal right to arms is a constitutional myth perpetrated by the gun lobby, but the real myth is the one perpetrated by the nation's legal elites. It is difficult to celebrate the bicentennial of the Bill of Rights, as we so recently have done, while we pick from among its guarantees the ones we will take seriously and the ones we will simply discard. This is the larger issue at stake in the Second Amendment debate.

Thomas B. McAffee
Professor of Law
Southern Illinois University School of Law
Carbondale, IL

Polsby's superb article removes any rational basis for doubting that the Second Amendment recognizes an individual right to keep and bear arms. Virtually every scholar of the Second Amendment agrees with Polsby on this point.

The morally important background question is what the right to keep and bear arms has to do with liberty and responsibility. Many American libertarians tend to see the right to keep and bear arms as an instance of the general right to liberty, on all fours with the right to purchase other potentially dangerous items such as cars, lawnmowers, alcohol, and high-cholesterol food. Others link the right more closely to the personal responsibility each person has to look after his or her own physical security. Fewer link the right with politics, as an essential rejection of a political absolutism which makes the monopoly over legitimate force the sine qua non for statehood.

The latter view is fiercest. It makes private arms possession symbolic of political liberty itself. It makes arms possession substantially more than a mere liberty, like a dietary choice or a take-it-or-leave-it attitude toward cars. On the contrary, keeping and bearing arms becomes a duty.

Presumably, all libertarians can feel comfortable wearing a T-shirt emblazoned with "Free Minds and Free Markets." I suspect substantially fewer would feel comfortable wearing a T-shirt that graphically linked arms bearing with the rejection of political absolutism. If this speculation is correct, we can better appreciate just how radical the Second Amendment is.

Lance K. Stell
Professor of Philosophy and Chair
Davidson College
Davidson, NC

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.