Thursday, April 17, 2014

The Second Amendment: Historical Context for an Ambiguous Right

This article first appeared on The Epoch Times    

     Federalism has been at the root of many problems in American history.  It has fueled protests, furor, and even a civil war.  The fight rages on today - this time in Nevada where a rancher squares off against the federal government over property rights and jurisdiction.  In a heated standoff between the rancher's family, armed militiamen from surrounding states, and federal agents, the government backed down in the interest of public safety.  However, this recent, and ongoing spat raises questions to a longstanding issue worth diving into regarding the Second Amendment and its applicability because the standoff between the ranchers, militiamen, federal agents almost ended in disaster (in fact a family member of the rancher was tased by federal agents.)

     Gun reformers suggest that the Second Amendment is not absolute and certain types of weapons should be restricted from public accessibility, such as bazookas.  Anti-gun reformers believe the Second Amendment guarantees their right to bear arms and should not be infringed upon in any way by the government.  To examine this debate, it is important to look back at the founding of the nation and the legislative history pertaining to gun ownership in relation to the Second Amendment.

     It is imperative to start with the text of the amendment: "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."  Some scholars, such as the New Yorker's Jeffrey Toobin, believe this sentence is flawed grammatically, which contributes to the ambiguity and misinterpretation of the amendment.

     At the founding of the United States, there was a debate of whether or not to have a standing army and, if so, how big it should be.  Alexander Hamilton supported a large national army while others disagreed.  At the time, the individual states had militias.  These state militias were then codified through The Militia Act of 1792.  According to The Militia Act of 1792 and its subsequent amendments: shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
     Furthermore, the Act established that the members of the militia were to be paid officers of the United States and were subject to orders from the president.

     In 1903, the Dick Act was enacted, which replaced the Militia Act and established the National Guard, the modern "militia" in terms and scope of the late 18th Century founders view.  According to current US law:
The militia of the United States consists of all able-bodied males at least 17 years of age and...under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.  The classes of the militia are:
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

     Strangely, the new law established the National Guard and the Naval Militia (integrating them into the federal armed forces) to serve as the reserves as the state militias did previously, but still makes note of an "unorganized militia."  This strange new distinction established an ambiguity in regards to the Second Amendment, and to whom it may apply.

     Many liberals, such as former Supreme Court Justice John Paul Stevens and Justice Stephen Breyer, condemn the Court's decision in a 2008 case called District of Columbia v. Heller in which the Court effectively ruled that law abiding citizens who are not part of a "well regulated Militia" may possess a handgun for self-defense.  According to dissenters such as Stevens, self defense is not an inherent right afforded by the Second Amendment.  In fact, Justice Stevens has written a new book and proposes a constitutional amendment to clarify the issue.  Justice Stevens would like to amend the Constitution to read: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed."      

     In light of all the tragedies that have occurred recently from gun violence, liberals believe it behooves the nation to reform gun laws.  However, conservatives and gun enthusiasts believe these tragedies cannot solely be attributed to lax gun laws or even to the types of firearms or accessories used including high capacity magazines or "assault weapons" (a term conservatives do not like as they believe it was coined to negatively stigmatize a certain weapons class) but rather, to a flawed mental health system.

     While the Second Amendment's language remains ambiguous, it is difficult to completely ban firearms all together based on the language alone - "the right of the people to keep and bear Arms."  Some scholars point out that bearing arms is a military term, while simply keeping them applies to a more domestic sense.

     When judges examine challenges to laws, there are several factors they look at such as the Constitution, relevant statutes and their language, statutory history related to the subject, and Congress' intent in creating the statute among others.  When examining the Second Amendment, it is clear the founders did not want members of the state militias, who served as the reserve troops, to be without weapons to defend not only themselves, but the nation.  Conservatives hail the Bill of Rights as a set of protections against the government.

     When applying this argument to the situation in Nevada, it appeared as if there was the potential for conflict.  With no real definition for "unorganized militia," clashes between federal agents and these militia groups could have been volatile.  The Constitution does not guarantee the rights to all weapons (as it should not given caveats in most protected rights) but these militias do have Constitutional rights to their weapons.  In the scope of the history of this issue however, the militias were commissioned by the government to "execute the laws of Union, suppress insurrections, and repel invasions."  Does this apply to protections against the government itself?

     These are serious questions of constitutional rights and jurisdiction.  The federal government does have constitutional authority over the states afforded in the Supremacy Clause.  Case in point, as Matt Ford of The Atlantic points out by quoting the Nevada state constitution:

All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States...

      The issue of guns and the rights of ownership are a hot button issue today especially coupled with allegations of federal government overreach related to NSA spying.  Each side poses legitimate arguments and ultimately, it is up to the courts to decide who is right (coincidentally, the Court will be deciding in the April 18 conference whether or not to hear a case regarding the right to carry a hand gun outside the home for self defense and if it violates the Second Amendment to force those who wish to carry outside the home for self defense reasons to provide a "justifiable need" to carry.)   

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