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THE RESSURECTION OF THE SECOND AMENDMENT

By Peter Alan Kasler

Copyright (c) 1993 -- Peter Alan Kasler -- All Right Reserved
 
The 1980s have seen enormous new research on the origins of the 
constitutional right to arms. As a result, it is no longer intellectually 
credible to deny that the Second Amendment guarantees to every 
responsible,  law-abiding adult the right to own handguns, rifles, and 
shotguns. These days the only people who deny the individual right to 
arms are the under- or ill-informed and the anti-gun lobby. They dismiss 
the right afforded by the Second Amendment as a "collective right," 
claiming that it is a "right" which cannot be asserted by individuals for 
themselves or on behalf of the people collectively. This is, of course, 
nonsense  A right that no one can enforce is no right at all.  The 
meaningless "collective right" concept violates Chief Justice Marshall's 
basic rule of interpretation that it may not be presumed "that any clause 
in the Constitution is intended to be without effect."
 
Typical of the anti-Second Amendment argument is a guest editorial in the 
New York Times entitled "What Right To Bear Arms?" It was written by a 
young man named Abrams whose only stated qualification was that he was 
about to graduate from college and had been accepted into law school. He 
is, in fact, the son of the Times' lawyer.
 
Disagreement with Mr. Abrams by qualified constitutional scholars was not 
long in coming -- the most important a letter to the Times by Robert 
Cottrol, a liberal black legal historian then at Boston College School of 
Law, and other law professors and eminent constitutional historians. The 
only conservative co-signer was Charles Rice, Professor of Constitutional 
Law at Notre Dame Law School. Conspicuous liberal co-signers of Cottrol's 
letter included Akhil Amar of Yale Law School and Sanford Levinson of the 
University of Texas. Ray Diamond, a black law professor and legal 
historian at Louisiana State Law School, and historians from UCLA and two 
ultra-liberal colleges, Reed and Kenton. A particularly significant 
co-signer was Daniel Polsby, a law professor at Northwestern University 
Law school. Polsby is significant because a decade ago he was quoted 
ridiculing the Second Amendment by Chicago Sun Times columnist Mike Royko.
 
Since then, Professor Polsby has studied the issue and reviewed the 
scholarly literature of the 1980s. As a result of that effort Polsby has 
reversed his position, even to the extent that he co-authored  (without 
compensation)  an Amicus Curiae (Friend of the court) brief in support of 
the National Rifle Association's position in attacking California's 
Roberti-Roos Assault Weapon Control Act. The amici in that action are the 
American Federation of Police, the Congress of Racial Equality (the black 
civil rights organization which supported Bernhard Goetz), and the Second 
Amendment Foundation.
 
Predictably, the very anti-gun New York Times refused to print this 
letter by eminent academics which demolished its student editorialist and 
acknowledged the Second Amendment's guarantee of the individual's right 
to arms.
 
What convinced all these professors and scholars was the large amount of 
research on the Amendment that has appeared in the past decade. Perhaps 
the most important is direct legislative history. The written analysis 
before Congress when it enacted the Bill of Rights said of the Second 
Amendment: "the people are confirmed in their right to keep and bear 
their private arms."
 
The fact that the Amendment is phrased "right of the people" is 
emphasized by Professor Kates, probably the most authoritative scholarly 
writer on the Second Amendment, who notes that that phrase is used in 
every other Amendment to mean an individual right: "Clearly, having used 
that phrase for a personal right in the 1st Amendment, Congress did not 
use it to describe a states' (collective) right just 16 words later in 
the 2nd Amendment -- and then revert to the personal rights meaning 46 
words later in the 4th Amendment, and so on"
 
The Founding Fathers believed that only an armed citizenry could preserve 
free government. Such thinking was consistent with a political philosophy 
dating back to Aristotle, who said tyrants "mistrust the people, hence 
they deprive them of arms." The lesson was emphasized by the British 
attempt to confiscate the Patriots' arms at Lexington and Concord. As the 
Virginia patriot George Mason put it: "to disarm the people, that is the 
best and most effective way to enslave them."
 
The Founding Fathers' beliefs flowed from those of a British philosopher, 
John Locke, who felt that government will become ever more oppressive 
unless checked by fear of an armed people.  Moreover, Locke argued that 
having an armed populace would actually avoid bloodshed.  He said that a 
government unrestrained by fear of an armed populace would tend to 
tyrannize so that even an unarmed people would revolt. Then there would 
be a true blood bath, as occurred not long ago in Rumania. Locke and the 
founding Fathers believed an armed citizenry to be the first and foremost 
insurance against unendurable tyranny. To paraphrase Trenchard (a 
follower of Locke who was also much admired by the Founding Fathers), an 
armed people, like a strong man carrying a sword, will find the sword 
grows rusty in its sheath because it will never have to be drawn. Thus 

James Madison, author of the Second Amendment, tells us that tyranny 
would not occur here because of "the advantage of being armed, which the 
Americans possess over the people of almost every other nation."
 
Among the most important research in the 1980s was that of Professor 
Joyce Malcolm, a legal historian whose work on the English and American 
origins of the right to arms has been sponsored by the American Bar 
Foundation, Harvard Law School, and the National Endowment for the 
Humanities. Her research reveals how deeply l8th Century Englishmen and 
Americans cared about their legal right to arms.  Blackstone  (the l8th 
Century English authority on the common law, whose work forms the basis 
for much of American common law) held that there was an "absolute right 
of individuals" to possess arms.
 
The right is not outdated today. In fact, no 20th Century army has ever 
defeated a populace that had access to small arms. That's how, after all, 
nations such as Algeria, Angola, Ireland, Israel, Mozambique, and 
Zimbabwe came to be. That's why the USSR left Afghanistan, the U.S. left 
Viet Nam, and the French left Indochina, and why Chiang, Somoza, and 
Battista left China, Nicaragua, and Cuba, respectively.
 
For  further  evidence  of  the  new  recognition  of  the "individual 
rights" view of the Second Amendment, consider the turn-about by an 
eminent liberal constitutional theorist, Sanford Levinson. His recent 
Yale Law Journal article is titled The Embarrassing Second Amendment 
because he found it impossible to sustain his former belief that private 
gun ownership can be constitutionally prohibited and all guns confiscated.
 
Another eminent liberal is Michael Kinsley, former Editor-In-Chief of The 
New Republic (one of the nation's leading liberal publications), who 
moved down to the position of contributing editor in order to become the 
liberal commentator on the TV debate program Crossfire.
 
Staunchly anti-gun, Kinsley is a member of Handgun Control, Inc. But in a 
recent nationally-syndicated article he admitted that the evidence 
demonstrates the individual right to have guns embodied in the Second 
Amendment.  Quoting a New Republic colleague, Kinsley said: "If liberals 
interpreted the Second Amendment the way they interpret the rest of the 
Bill of Rights, there would be law professors arguing that gun ownership 
is mandatory" Nevertheless, Kinsley still dislikes guns and wishes the 
Constitution did not guarantee responsible adults the right to own them
 
Professor Levinson has come considerably further. His Yale Law Journal 
article articulates not only his new recognition that the Second 
Amendment guarantees the individual's right to arms, but also that he now 
sees the importance of an armed people:
 
".  .  . it seems foolhardy to assume that the armed state will 
necessarily be benevolent. The American tradition is,  for good or ill, 
based in large measure on a healthy mistrust of the state ... it is hard 
for me to see how one can argue that circumstances have so changed as to 
make mass disarmament constitutionally unproblematic ... a state facing a 
totally disarmed population is in a far better position, ... to suppress 
popular demonstrations and uprisings than one that must calculate the 
possibilities of its soldiers and officers being injured or killed."
 
It is heartening to see so many liberal scholars honestly acknowledge  
what gun owners have long known about the Second Amendment. Now all that 
seems left is for the nation's media to follow suit.


COPYRIGHT (c 1993 -- Peter Alan Kasler -- All Rights Reserved 
 
By Peter Alan Kasler
 
