Showing papers in "Journal on firearms and public policy in 1989"

To keep and bear their private arms: The adoption of the Second Amendment 1787-1791

Abstract: After the Constitution was submitted for ratification in 1787, political writings and debates in state conventions revealed two basic positions: the federalist view that a bill of rights was unnecessary because the proposed government had no positive grant of power to deprive individuals of rights, and the anti-federalist contention that a formal declaration would enhance protection of those rights. On the subject of arms, the federalists promised that the people, far from ever being disarmed, would be sufficiently armed to check an oppressive standing army. The anti-federalists feared that the body or the people as militia would be overpowered by a select militia of standing army unless there was a specific recognition of the individual right to keep and bear arms.

The right to have arms and use deadly force under the Second and Third Amendments

Abstract: The constitutional right of the people to keep arms has deep roots in common law and constitutional history, and it remains of fundamental importance to this day. This right is explicitly guaranteed in the Second Amendment in the Bill of Rights and includes the keeping by private citizens of any hand-carried arms commonly used by private individuals and police for personal defense. Because "A man's house is his castle and his defense," and because the Third Amendment in the Bill of Rights prohibits government from quartering soldiers in a person's house during times of peace without his consent, the constitutional right of the people to keep arms must guarantee at its core the legally unfettered ability of the householder to acquire speedily and to keep permanently and anonymously in his house such arms as are commonly used for home defense, not only as a means for resistance against violent burglars but also as a strong moral check and deterrent against illegal quartering of troops in his house. A key purpose of the constitutional right of the people to keep arms was enunciated in Presser v. Illinois decided by the U.S. Supreme Court in 1886, to wit, "for maintaining the public security" -- that is, for citizen participation in preventing and suppressing violent felonies and capturing violent felons on the spot, a public purpose of great current importance and necessity, as at the common law. Note: A printer's error led to the omission of end-notes beyond #14. Notes 15 through 32 are available online at: http://www.saf.org/journal/2/caplan.htm.

Can the Second Amendment survive

Abstract: As of this moment, it is the official position of the Federal Government that the Second Amendment does not protect the right of individual citizens to keep and bear firearms. The exact words used are that "the Second Amendment does not apply to private citizens as an individual right." Although that flat statement was made at a relatively low level -- by an Assistant U.S. Attorney in Indiana this Jan. 5 -- a spokesman for the U.S. Department of Justice in Washington, D.C. confirmed that it is the government's current stand. The official declaration that the Second Amendment is a dead letter so far as individual gun owners are concerned, while shocking in its bluntness, came as no surprise to those in Washington long familiar with the legal situation. The government's position goes back, in fact, to a 1939 decision of the U.S. Supreme Court in an obscure case involving a sawed-off shotgun. From a gun owner viewpoint, the big and burning question at present is whether the high court interpreted the Second Amendment wrongly nearly 34 years ago, and if it was wrong, what can be done about it now?