Showing papers in "Journal on firearms and public policy in 1993"

The Second Amendment and the historiography of the Bill of Rights

Abstract: That there is controversy surrounding the interpretation of the second amendment, or any provision of the Bill of Rights, is hardly surprising. While the disputes relating to the first, fourth and remaining amendments focus upon their detailed application, the conflict over the second amendment concerns the question of its very subject matter. One school of thought contends that the second amendment protects a collective right, a narrow guarantee of a state right to maintain organized reserve military units. This interpretation emphasized the phrase "A well regulated militia being necessary to a free state," and maintains that the subsequent recognition of the people's right to bear arms is a mere restatement of this collective (i.e., state) right. The other school of thought contends that the amendment recognizes an individual right to possess and use arms. This interpretation emphasizes the phrase "the right of the people to keep and bear arms shall not be infringed," and maintains that the preceding description of the militia (i.e., all individuals capable of arms bearing) is a mere explanation of one objective of this guarantee. The works of neither school entertain the possibility that an "either/or" test may be a gross oversimplification of what are in fact two different sets of constitutional priorities.

The role of the militia in the development of the Englishman's right to be armed -- clarifying the legacy

Abstract: When it comes to the origins of the Second Amendment Americans seem to have reversed the old adage that it is a wise child that knows its father. Our Constitution's founding fathers are far better known to us than that "mother country" from which those gentlemen sought, and with some difficulty obtained, a divorce. This is doubly unfortunate: first, because the founders' notions of liberty, including the right to be armed, were profoundly shaped by the British model. And, secondly, because the language in which they couched the Second Amendment has become obscure. An examination of the English right to have arms, the attitude it embodied and the intent behind it, can provide insight into the meaning of our Second Amendment. Clarifying the English legacy can help us clarify our own.

The "assault weapon" panic

Abstract: Persons who claim that the Second Amendment protects only "sporting guns" implicitly assert that protection of recreational hunting and target shooting was seen by the authors of the Bill of Rights as some particularly important activity to a free society. The framers, as the "sporting gun" theory goes, apparently intended to exalt sports equipment used in recreational hunting to a level of protection not enjoyed by equipment for any other sport. It is true that the framers did see sport hunting as an activity better suited for building good character than other sports. Nevertheless, it is difficult to believe that the Framers would follow an amendment guaranteeing speech, assembly, and the free exercise of religion with an amendment protecting sporting goods. Moreover, to the extent that there is a real conflict between public safety and sports equipment, public safety should win. Hence, if "assault weapons" posed a substantial threat to public safety, control would be in order because protecting many people from death is more important than enjoying sports. One reason that "assault weapon" bans are improper is that government statistics prove that "assault weapons" are no more threat to public safety than any other gun; the "safety vs. sports" conflict is non-existent. Reflecting a sports-based theory of gun ownership, "assault weapon" prohibitionists claim that these guns have no purpose except to kill. As a factual matter, the claims are incorrect. The guns, are frequently used for sports. But even if the gun prohibitions' claim were correct, it would do nothing to militate for a ban on the guns. Despite their "evil" appearance, so-called "assault weapons" are no more dangerous than many non-semiautomatics. According to empirical evidence and police experience, the guns are not the weapons of choice of drug dealers or other criminals. Even if these guns played a significant role in violent crime, sociological evidence suggests that "assault weapon" legislation would not reduce the criminal misuse. To limit the criminal misuse of firearms, legislators must take the more difficult and costly steps of providing sufficient funding to the prosecutors and prisons that directly confront the problems of firearms misuse. While these measures may not seem as simple as passing a severe "assault weapon" prohibition, an effective firearms policy -- one that preserves basic Constitutional rights -- will be logical, legal, and moral, and well worth the effort.

The right to keep and bear arms in state bills of rights and judicial interpretation

Abstract: Guarantees of individual liberties under federalism have two components: the Federal Constitution and state constitutions. Reliance should first be placed on a state's bill of rights, of declaration of rights, because the U.S. Supreme Court has explicitly acknowledged each state's "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution [Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)]. The constitutions of forty-three states guarantee a right to arms.