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CURRENT VIEW OF THE 2ND

The Radical Amendment
Want sensible gun regulation?
Start by backing the right to bear arms.

BY EUGENE VOLOKH
Friday, May 10, 2002 12:01 a.m. EDT

Those dangerous radicals John Ashcroft and Ted Olson are at it again. The Second Amendment, the Justice Department has just asserted in two Supreme Court briefs, protects an individual right. People like you and me do indeed have the right to keep and bear arms.

This, a lawyer representing the antigun Violence Policy Center opined, is a departure from what was "the government's position for more than 60 years"--and an illegitimate one, because "people who happen to be in office temporarily shouldn't use the office to promote their personal views."

Unnamed "scholars and gun-control advocates" called this (according to the Los Angeles Times) a "'radical' shift in position" that "alarmed" them.

Our radical Justice Department, though, turns out to be in good company. Supreme Court Justice Joseph Story, probably the second most respected 19th-century justice--after the great John Marshall--and the author of the leading early-1800s constitutional-law treatise, also took the view that the right belongs to "the citizens," not the states.

Same for Michigan Supreme Court Justice Thomas Cooley, the leading constitutional-law commentator of the late 1800s. William Blackstone, the leading late-1700s British legal commentator, and a major influence on the Framing generation, saw even the much narrower English right to have arms as an individual right.

Framing-era documents confirm this understanding, as does the text itself. "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," the Second Amendment says. The right belongs to "the people," not the states or the National Guard. The reference to the "Militia" only reaffirms this. From the Militia Act of 1792 to the current Militia Act (enacted in 1956), the "militia" has meant pretty much the adult able-bodied male citizenry age 17 to 45. Following the Supreme Court's sex equality decisions of the 1970s, it almost certainly includes women, too. The two clauses both stress the Framers' commitment to keeping the citizenry--not the states or small state-selected groups--armed.

In fact, from the late 1700s to the early 1900s, the individual-rights view of the Second Amendment was the nearly unquestioned interpretation. Virtually no court or commentator of that era reasoned that the Second Amendment protects the rights of states. Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.

The individual-rights view is also in good modern company. In the 1986 Firearms Owners' Protection Act, Congress specifically reaffirmed "the right of the citizens to keep and bear arms." In 1960, those noted conservatives (or is it "radicals"?) John F. Kennedy and Hubert H. Humphrey both asserted their support for the right of each citizen to keep and bear arms.

Some leading liberal constitutional scholars today likewise take this view. Nor has the Supreme Court held the contrary. The 1939 U.S. v. Miller decision did say that the right extends only to arms that are related to the militia. But it also specifically stressed that "militia" meant "all males physically capable of acting in concert for the common defense," and that ordinarily "these men were expected to appear bearing arms supplied by themselves."

So the Ashcroft Justice Department may be going against the views of past Justice Departments, and of most federal courts of appeals, which have indeed endorsed the states'-rights view of the Second Amendment. But it's returning to a much broader consensus: the view, adopted throughout most of the nation's history, that the "right of the people to keep and bear arms" is as individual a right as "the right of the people to be secure . . . against unreasonable searches and seizures" or "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The right wouldn't be absolute, just like other rights aren't absolute. Forty-four of the 50 states have right-to-bear-arms provisions in their bills of rights, and the overwhelming majority are clearly individual rights. But state courts have nonetheless upheld many gun controls, such as bans on felons possessing guns, or restrictions on certain types of guns that are particularly likely to be used by criminals.

Nonetheless, the right would meaningfully protect private gun ownership.

The District of Columbia gun ban, for instance, which prohibits virtually all handguns and requires even rifles and shotguns to be kept locked and unloaded, may well be struck down. This law was upheld under a states'-rights theory by the D.C. Court of Appeals in the late 1980s. But a new challenge in federal court might lead to the law's invalidation. And the right, if firmly accepted by the courts, may actually facilitate the enactment of modest gun controls.

Today, many proposals, such as gun registration, are opposed largely because of a quite reasonable fear that they'll lead to D.C.-like gun prohibition.

But if the courts can make clear that the Constitution takes such a prohibition off the table, this slippery slope concern may become less serious. And some people may thus become willing to support compromise legislation, precisely because the core of the right will be protected--just as the radical and alarming Bill of Rights commands.