Showing papers in "Journal on firearms and public policy in 1988"

The Bill of Rights and the military

Abstract: It is almost a commonplace to say that free government is on trial for its life. But it is the truth. And it has been so throughout history. What is almost as certain: It will probably be true throughout the foreseeable future. Why should this be so? Why is it that, over the centuries of world history, the right to liberty that our Declaration of Independence declares to be "inalienable" has been more often abridged than enforced? One important reason, surely, is that the members of a free society are called up-on to bear an extraordinarily heavy responsibility, for such a society is based upon the reciprocal self-imposed discipline of both the governed and their government. Many nations in the past have attempted to develop democratic institutions, only to lose them when either the people or their government lapsed from the rigorous self-control that is essential to the maintenance of a proper relation between freedom and order. Such failures have produced the totalitarianism or the anarchy that, however masked, are the twin mortal enemies of an ordered liberty. Our forebears, well understanding this problem, sought to solve it in unique fashion by incorporating the concept of mutual restraint into our Nation's basic Charter. In the body of our Constitution, the Founding Fathers insured that the Government would have the power necessary to govern. Most of them felt that the self-discipline basic to a democratic government of delegated powers was implicit in that document in the light of our Anglo-Saxon heritage. But our people wanted explicit assurances. The Bill of Rights was the result. This act of political creation was a remarkable beginning. It was only that, of course, for every generation of Americans must preserve its own freedoms. In so doing, we must turn time and again to the political consensus that is our heritage. Nor should we confine ourselves to examining the diverse, complicated, and sometimes subordinate issues that arise in the day-to-day application of the Bill of Rights. It is perhaps more important that we seek to understand in its fullness the nature of the spirit of liberty that gave that document its birth. Determining the proper role to be assigned to the military in a democratic society has been a troublesome problem for every nation that has aspired to a free political life. The military establishment is of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society. The critical importance of achieving a proper accommodation is apparent when one considers the corrosive effect upon liberty of exaggerated military power. In the last analysis, it is the military--or at least a militant organization of power--that dominates life in totalitarian countries regardless of their nominal political arrangements. This is true, moreover, not only with respect to Iron Curtain countries, but also with respect to many countries that have all of the formal trappings of constitutional democracy. Reprinted by permission of New York University Law Review 1962, 37(181): 181-185.

The right of the individual to bear arms: A recent judicial trend

Abstract: During 1981, courts in both Oregon and Indiana re-asserted their 1980 holdings that their respective state constitutional provisions for a right of the people to bear arms guaranteed an individual right to the private citizen. More specifically, the Oregon Supreme Court in State v. Blocker re-asserted its 1980 holding in State v. Kessler invalidating an Oregon state statute banning the private possession of certain arms, such as billy clubs. The Indiana Court of Appeals in Shettle v. Shearer reaffirmed its 1980 holding in Shubert v. Debard that an applicant for a license to carry a handgun who claimed "self-defense" as a reason for the license could not constitutionally be required to demonstrate factually the "need" for the license. The Kessler and Schubert opinions both contain detailed discussions on the scope and policy of the right of the people to keep and bear arms as a private individual right. This article reviews the historical background of that right, and the consequent signaling of judicial trend rejecting the exclusively collective right theory of the right of the people to keep and bear arms. The exclusively collective right theory stands for the proposition that the "right of the people to keep and bear arms" - as expressed in the second amendment of the United States Constitution, or as specified in various ways in thirty-seven state constitutions - is strictly limited to guaranteeing a collective right of the organized militia or National Guard. However, both the Indiana and the Oregon courts rejected the exclusively collective right theory in favor of a theory that recognizes both a private individual constitutional right and a collective right. Because these decisions set forth with great clarity the underlying fundamental issues in a concrete context, a rather detailed review of the reasoning of these decisions is useful in understanding their important implications. Moreover, the Oregon court in State v. Kessler based its decision on an explicit acceptance of the English legal traditions of the right of self-defense and the right of the individual citizen to have arms for that purpose. Accordingly, this tradition will be explored first, followed by a review of the holdings of Schubert and Kessler. Finally, this article will explore the implications of these cases regarding the exclusively collective right theory of the right of the people to bear arms. Reprinted by permission of: Detroit College of Law Review 1982, Winter, Issue 4. (Revised and updated by the author.)

Standing armies and armed citizens: An historical analysis of the Second Amendment

Abstract: There has been very little case law construing the Second Amendment, perhaps because there has been very little federal legislation on the subject of firearms. This may change, and it may become necessary for the Supreme Court to rule upon constitutional challenges to federal statutes based on the Second Amendment. Even before this occurs, it would be helpful to dispel the uncertainties that exist in Congress about the extent of federal legislative power. In order to determine accurately the intended meaning of the Second Amendment, it is necessary to delve into history. It is necessary to consider the very nature of a constitutional guarantee -- whether it is an inherent, fundamental right, derived from abstract human nature and natural law or, alternatively, a restriction on governmental power imposed after experience with abuse of power. Historically, the right to keep and bear arms has been closely intertwined with questions of political sovereignty, the right of revolution, civil and military power, military organization, crime and personal security. The Second Amendment was written neither by accident nor without purpose; it was the product of centuries of Anglo-American legal and political experience. This development will be examined in order to determine whether the "collectivist" or "individualist" construction of the Second Amendment is correct.

Historical development and subsequent erosion of the right to keep and bear arms

Abstract: Two serious challenges exist to the effectiveness of any form of firearms control program. One has been tested in the courts and the other has not. If either or both are accepted, then no firearms control legislation will be effective. First, there is the question of prior restraint which would apply primarily to firearms registration or licensing legislation. In 1931 the Supreme Court held that the states cannot preclude the publication of a newspaper simply because that publication had a history of libelous activity. In short, prior censorship was not permitted regardless of the circumstances. Instead of enjoining an individual from publishing, the most the state can do in the exercise of its police power is to exercise its power to punish individuals for violations of the law as these breaches occur. If the principle of prior restraint is applicable to the right to keep and bear arms, and no court has yet held that it is, then the states could not enjoin the citizen-soldier from owning firearms as would be allowed under court definitions. The state could then punish at will violations of the law when and if a citizen used his firearm illegally, but it could not prevent him from owning a firearm through some form of prior restraint mechanism. Because of the grave dangers which firearms can present, the courts might allow the states or the federal government to prevent certain classes of people from bearing or keeping arms within the mitigated doctrine of prior restraint provided that this decision is made on a rational basis. Such groups could include, for example, former convicted felons, drug addicts or alcoholics. The second challenge to the effectiveness of firearm control programs involves a citizen's right against self-incrimination. In a series of 1968 decisions the Supreme Court invalidated a federal gambling tax stamp on the grounds that to identify one's self as a gambler pursuant to federal law might subject an individual to state prosecution. The Court also indicated that a criminal might not have to follow certain provisions of the 1968 Federal Gun Control Act for the same reason. This might mean, as it is interpreted further by the courts, that only law abiding citizens would have to abide by provisions of this law and any similar subsequent legislation. If this principle is judiciously continued the right against self-incrimination could be more significant in the protection of the right to keep and bear arms than the second amendment. Presumably, the same protection could be offered against state controls since the fifth amendment has been incorporated through the fourteenth amendment and is thus applicable to the states.