No Right to Bear Arms

The Supreme Court decision to uphold the ruling of a lower court which struck down a Washington DC law banning handgun ownership as unconstitutional is a bigger set back to American law and public safety than first meets the eye.

To many Americans the court's actions may make sense because even liberal publications often refer to the Second Amendment as if it speaks simply of a "right to bear arms." Actually the text reads, "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." You may say the text is ambiguous given that it speaks first about a militia and then about people. However, until this year, whenever this issue reached the highest court of the land, in cases that span nearly 125 years, the court ruled that there is no constitutional barrier to limiting or removing guns owned by individuals. It is this long accumulation of legal judgments which now has been undermined by a court loaded with conservatives.

In an overview of all the cases before 2008 none other than Erin N. Griswold, solicitor general in the Nixon administration, and former dean of Harvard Law School, noted:

"Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds. Indeed, that the Second Amendment poses no barrier to strong gun laws is perhaps the most well settled proposition in American constitutional law."

The relevant Supreme Court cases are United States v. Cruikshank (1875); Presser v. Illinois (1886); Miller v. Texas (1894); United States v. Miller (1939); Lewis v. United States (1980); Quilici v. The Village of Morton Grove (1983); Higgins v. Farmer (1991); and Printz v. United States (1997). Though the details of these cases vary, and like all such cases they are subject to different readings, the decisions reached in all of them fundamentally affirm that the Constitution does not limit the states' ability to restrict private gun ownership.

For instance, in United States v. Miller, the most often cited of these cases, Jack Miller had not properly registered his sawed-off shotgun, nor had he paid a tax for transporting this weapon in interstate commerce, both required under the 1934 Firearms Act. Miller claimed that the Act violated his Second Amendment rights. The Court ruled that because Miller could not prove that his shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Seems plain enough. But when I wrote previously about this subject I received a storm of critical emails. Many of the responses were composed merely of cuss words strung together, of the kind one would expect to find in a poorly kept public toilet. Some readers, though, offered actual arguments. They quoted Washington, Jefferson, Madison, and George Mason to show that our founding fathers were proponents of private gun ownership. My response is that ours is a government by laws which cannot be trumped by quotations from even the most highly regarded patriotic icons.

Recently some social scientists have claimed that their studies show that the more guns private citizens have, the lower the crime. These are the results of highly manipulated models, not actual empirical research. If one compared the murder rates in nations in which there is next to no private ownership of guns (such as the UK and Canada) one sees that for decades, they had much lower murder rates. Ditto for other kinds of violent crime.

The NRA argument that criminals kill people, not guns, ignores the fact that guns make it much easier for a person to kill scores of others than say knives or wrenches, to which guns are often compared. Moreover, one must note that guns in the house are more likely to be used by one spouse against another, or discharged accidentally, or to endanger children -- than ever be used against a criminal. In fact, for every justified use of a gun in the home, there are about 22 criminal or unintended shootings.

One can but hope that the recent Supreme Court ruling will not open the door to a widespread relaxation of laws in other cities or states which limit the availability of dangerous weapons. While unclear, the Supreme Court's decision does not deny that cases may be made for state limitations on the possession of firearms. However, by reversing course in the Court's history of interpreting the Second Amendment, it is likely to impose an unwelcome burden on attempts to improve public safety.

Amitai Etzioni is University Professor and director of the Institute for Communitarian Policy Studies at George Washington University. His most recent book is Security First (Yale 2007) www.securityfirstbook.com email: [e-mail]
For more on Second Amendment issues: http://dspace.wrlc.org/handle/1961/587

Comments

[muffinman2]

It's funny. There are a half dozen anti-gun blogs right now on Huffpo, and not one anti-gun blogger has breathed a word about stiffer penalties for perpetrators of violent crimes, or even imposing the full penalties on the books already.

However, these same people are all too ready to whine about over-crowded prisons, when a violent offender is put away for a long time. Seems to me, if gun-control was doing any good, maybe the prisons wouldn't be so crowded.

You need a deterrent to control crime. Gun control, being soft on criminals, and disarming the law abiding are not working, obviously.

[djkrlsn]

I have noticed the same thing--but then again it has always made more sense to punish the criminal as opposed to the law abiding.

[montestruc]

This article is an interesting read for those interested in gun control law in the USA. It discusses the details of the Miller case. The author of this article asserts that the Miller case ruled that Millers sawed off shotgun did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia" the second amendment did not protect it. In fact that is not the case.

http://www.reporter-times.com/stories/2008/08/05/opinion.qp-0320690.sto

Miller's side was never presented to the US Supreme court at all, and the government lawyers deliberately mislead the Supreme court justices indicating that sawed off shotguns were not, and never had been a weapon used by the US Military or militia. In fact sawed off shotguns had been issued by the US Army to US troops fighting the Germans in France in WWI about 20 years before the case was heard, and have been used by US troops and militia before and since then.

Further the court did not make any specific ruling, as they only remanded the case back to district court for the issues of fact to be determined at district court. That is why they said "we cannot say" in the quote he gives.

It was however moot as Jack Miller had been murdered before his case was heard at the US Supreme court.

[Thirdpower]

"One can but hope that the recent Supreme Court ruling will not open the door to a widespread relaxation of laws in other cities or states which limit the availability of dangerous weapons."

So Chicago, w/ 5x the murder rate of the rest of the state and severely " limits the availability of dangerous weapons." is the preferred situation?

[djkrlsn]

I don't know about you--it strikes me that reducing violent crime is the preferred situation--and wide spread gun ownership and non discretionary CCW seems to reduce violent crime much more effectively than gun control.

[Wilson333]

"They quoted Washington, Jefferson, Madison, and George Mason to show that our founding fathers were proponents of private gun ownership. My response is that ours is a government by laws which cannot be trumped by quotations from even the most highly regarded patriotic icons."

Sir, the Founding Father's provided us with such a law. It's called the 2nd Amendment.

Please do not pretend that all of those quotes, from the very people who wrote the Constitution, mean nothing.

[rwt1138]

It depends on the quotes and on the context. I think you would be hard pressed to find a single member of the constitutional convention who endorsed, agreed with or supported the entire document, including the Bill of Rights. The entire document represents a well-intentioned compromise, and numerous founding fathers thus offered their own interpretations of various points and clauses. Furthermore, as politicians, they are also possessed of numerous contradictory quotes, so taking any quote out of context is a parlous endeavor. For example, while Jefferson is oft (correctly) cited as one of the greatest champions of the press, as president he quarreled with them frequently and produced numerous quotes that, out of context, could be used to make a specious argument that Jefferson supported a tightly controlled press. I've actually seen it done, actually.

I think all he is saying is that the only quotes that really matter from the founding fathers are those they codified into law, with a special nod to the Federalist papers (as documents specifically pertinent to the reasoning and arguments behind specific points of the Constitution).

One last point to this particular issue, Washington, Madison, Jefferson and Mason lived in the country at a time when it was weak and had no standing army to speak of, and their opinions of private gun ownership and well regulated militias were probably colored by a frame of reference completely different from yours or mine.

[vespasian1]

If I felt like digging around for a few minutes, I could slap about forty quotes up here, from the founders, indicating their strong belief in individual firearms ownership, not only for national security purposes, but for protection of one's home and family as well. But, it's been done by one or another of us many times before.

There is only so much that you can write off to context and politics.

"and their opinions of private gun ownership and well regulated militias were probably colored by a frame of reference completely different from yours or mine."

Probably so. But one thing that hasn't changed over time, is the fact that people believe in the natural right of self-protection. That's as true now as it was then, and it appears that 3/4 of the population, including Congress, agree. (not to mention SCOTUS)

[Leifrakur]

Despite the Supreme Court"s recent 5-to-4 reinterpretation of the Second Amendment, the fact remains that the amendment"s true purpose was to affirm the right of the people to keep and bear arms as a well regulated militia.

The collective and individual right to mutual defense by the citizens of America was best described by James Monroe, who served in the militia during the Revolution and who became President Madison"s Secretary of War and Secretary of State before being elected the nation"s fifth President:

"The Commonwealth has a right to the service of all its citizens, or rather, the citizens composing the Commonwealth have a right collectively and individually to the service of each other, to repel any danger which may be menaced.

"The manner in which the service is to be apportioned among the citizens, and rendered by them, are the objects of legislation. All that is to be dreaded in such a case, is the abuse of power, and happily our Constitution has provided ample security against that evil."

And Monroe added this: "In support of this right in Congress, the militia service affords a conclusive proof and striking example."

( Source: Secretary of War James Madison, October 17, 1814, in a report to Congress, "Explanatory Observations accompanying the Letter from the Secretary of War to the Chairman of the Military Committee of the House of Representatives," published in the Annals of Congress, l3th Congress, 3rd Session of the House, pp 483-491.)

[muffinman2]

"the citizens composing the Commonwealth have a right collectively and individually to the service of each other, to repel any danger which may be menaced."

Sure sounds like Madison is talking about individuals here. And nowhere in the rest of it does he say that the militia is the only reason people have the right to keep and bear arms.

We DO read this stuff, you know.

[Thirdpower]

Oh, but what he said there isn't the important part. It's everything else. Didn't you know that?

[Leifrakur]

Thanks for reading it, muffinman2.

The concept of militia service presented by Monroe is quite consistent with, and supportive of, the "militia" reading of the Second Amendment.

[Thirdpower]

Let's note what he said after that, shall we?

"The manner in which the service is to be apportioned among the citizens, and rendered by them, are objects of legislations. All that is to be dreaded in such a case, is the abuse of power, and happily our Constitution has provided ample security against that evil."

Yep, an armed populace.

[Leifrakur]

Correction: In the first line of the last paragraph, substitute "James Monroe" in place of "James Madison."

[djkrlsn]

Leifrakur--I can not believe that you are still on this canard that the 2nd amendment was put in the Constitution to defend the "right" to serve in the military. MIlitary service is a responsibility not a right.

[djkrlsn]

2nd try--Leifrakur--why are you still on this canard about the 2nd amendment being about some right to join the military?

[research]

This liberal is telling you to go read the Declaration of Independence again.

[LtBromhead]

'This liberal is telling you to go read the Declaration of Independence again."

And so is this one. He might want to re-read this part, for example:

"that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,"

The right to life, and by extension, the right to protect and defend that life, I hope will not escape notice.

[randyjet]

It is too bad that Etzioni fails to remember that when the US Constitution was written there were NO police forces at all. It was up to the individuals to assure their own safety and secure that of their neighbors by being available to assist the sherrif in going after the bad guys WITH their ARMS in hand. To forget this FACT is to distort all the debate on this issue and the intention of our founders.

IT is NOT a progressive value to restrict the peoples ability to keep and bear arms. The history has been that it is the corporate interests who want the citizens disarmed, so that they can use their bought and paid for mercenaries against them.

[larry278]

Did anybody else notice that AE implied that if more people had guns [including cheap pistols, akd Sat night specials] it would bode ill for law enforcers such as the local police? Let's see if that's the case. The statistics could tell us if gun related crimes increase in the next few years.

[muffinman2]

It doesn't seem to be a problem in states where a lot of people are carrying guns legally already, and have been for years.

[UnbiasView]

"The NRA argument that criminals kill people, not guns, ignores the fact that guns make it much easier for a person to kill scores of others than say knives or wrenches, to which guns are often compared."

Not if someone they are shooting at has a gun too. The scores of people that get shot are all convienently at places that ban guns . . . churches, schools, malls, etc.

Considering the give security guards a flashlight and pepper spray . . . it is pretty hard to take down a criminal.

[muffinman2]

"The scores of people that get shot are all convienently at places that ban guns . . . churches, schools, malls, etc."

Good point, UV.

'Gun free zones' are only gun free, until somebody brings a gun. Is it better for that person to be a law abiding, armed citizen, or a murder-bent miscreant?

A cardboard sign never kept a gun out of anywhere, folks. You want gun free? Get a metal detector, and a couple of big, heavily armed cops to go with it.

[Leifrakur]

The Second Amendment has been painstakenly remodeled into a gun-marketing slogan. The Supreme Court's decision will be good for business -- if you're a gun shop or a mortuary.

[muffinman2]

Rakur, that was wrong when you posted it on Helmke's blog, and it's wrong now.

The 2nd Amendment was finally upheld as written, and in accordance with the well documented wishes of the founders.

Polls indicate that 75% of the population agrees that individuals have a right to own firearms. The vast majority of members of both houses of congress filed briefs in favor of Heller. And we now have Supreme Court justices who can read plain English.

Bravo.

[Leifrakur]

The whole area of gun law is now quite unsettled. New justcies can mean new law. Bloodletting may go out of style. Meanwhile, the mortuary business is fabulous.

[JimR]

How do you explain that in the 90s, when the handgun ban had been in place for nearly 15 years, DC was known as the murder capital of the year?

[Leifrakur]

Now things can get worse. DC can become known as the murder capital of the generation.

[djkrlsn]

Please explain why areas with high firearm ownership rates have lower crime rates than areas like Washington DC that have draconian gun laws. I have a working suspicion that it is because the more law abiding citizens are armed, the more the criminals are inhibited from acting.

[LtBromhead]

I think your fears are unfounded. Citizens of DC will have to go to a gun store, and undergo a background check, just like any other US city where guns have never been banned. Criminals don't do that now, in DC or anywhere else.

Mortuaries do a better business in places like DC and Chicago, than they do in places with less stringent gun laws, and that's a fact.

[UnbiasView]

So the DC gun ban must really not have had much effect since they are always in the top 10 for murder rate . . . why not allow the people of DC to have a gun instead of just the criminals. There is a reason the police had to setup baracades . . . they can't protect everyone so why not let the people protect themselves?

[muffinman2]

It might be pointed out that, according to a Supremem Court ruling some years back, the police are under no lega obligation to protect individuals.

So who's responsibility is it, if not our own?

[montestruc]

Why the Democratic Party or the Huffington Post puts up with gun control advocates is beyond me, they have been the single biggest cause of Democrats losing elections for the past 30 odd years.

The American people by a wide majority hold that they hold the right to keep and bear arms, and are not going to let anyone talk them out of it.

The supreme court has ruled on this issue, and the gun control advocates lost most of their talking points in that ruling. It is an individual right per that ruling and that ends the legality of banning gun ownership by otherwise law abiding citizens.

[UnbiasView]

Correct, I don't own a gun since I live in the burbs but if I lived in a city like DC I might own 5 of them.

[muffinman2]

5 would be about right. I live near Philly, and spend a fair amount of time there. It's damn near as bad as DC, if not worse.

Unfortunately UV, bad things happen in the burbs too, and average police response to a 911 call is not impressive. It's anywhere from about 10-20 minutes, depending on whose estimate you want to believe. That's an awful long time to be at the mercy of some low life who has broken into your home.

We are approaching the one-year anniversery of the destruction of Pettit family, of suburban CT. One night last August, at about 3AM, two recently released ex-cons broke into Dr. Pettit's home.

They took him to the basement and beat him senseless. Then they proceeded to assault Mrs. pettit, and her two daughters.

They took Mrs. Pettit to the bank at 9AM, and forced her to withdraw money. The teller sensed that something was wrong after they left, and notified police, who went to the home.

Back at the house, Mrs. Pettit was strangled to death. They set fire to the house, and the two daughters were tied to their beds and left to burn to death. Mercifully, they died from smoke-inhalation.

When these murders took place, the police had already been on the scene for thirty minutes.

The two miscreants were aprehended when they wrapped the Pettit's car around a tree, attempting to escape.

[wm1066]

By mischance I ended up in a bad neighborhood in the early 90's and I did own a gun and when the electric went out in the hood that gun was a comfort but for it to be effective you almost have to wear a loaded gun around the house and that is dangerous, and no way to live, plus it went against my gun training, and upbringing.
I settled on having an 18 in. 'pig sticker' by my bed and front door.

[montestruc]

The American people do think they have a right to bear arms by a wide majority, and as it is their constitution, not yours I suggest you need not bother with the long winded arguments, just pack it up and forget it.

You lost.

Your comment about "some social scientists have claimed that their studies show that the more guns private citizens have, the lower the crime. These are the results of highly manipulated models, not actual empirical research." is priceless.

Clearly this is an attack on John Lott, but I know why you do not name him. In the lawsuit brought by Lott against Levitt, Levitt was in the end forced to retract statements.

http://en.wikipedia.org/wiki/John_Lott

"Levitt settled the second defamation claim by admitting in a letter to John McCall that he himself was a peer reviewer in the 2001 issue of the Journal of Law and Economics, that Lott had not engaged in bribery, ,"

Might I point out that this is not true of the much ballyhooed study "Arming America" by Bellesilles, which turned out to be a basic case of academic fraud.

http://en.wikipedia.org/wiki/Michael_A._Bellesiles

Why the Democratic Party puts up with gun control advocates is beyond me, they have been the single biggest cause of Democrats losing elections for the past 30 odd years.

[OpusIsUnderTheBed]

The original leaders of this country never intended to guarantee all americans, personal gun ownership. Wasn't even on the radar. It was about rebellion and independence from the British Monarchy. American citizens and their leaders did not want to create a free union, only to see a Federal Government dominate the forming states. So.....for political compromise, it was established that each, individual state would have the right to form and maintain a militia, separate from any National army.

The Supreme Courts breathtaking decision, affirming a chicken in every pot and a gun in every household, is clearly wrong. Their decision is clearly political. Sad that we put these guy in a lifetime position to be incredibly independent, yet they still take calls from politicians, and answer to them.

Shame on you, Republican-appointed Justices. While I'm at it, Scalia is abusive of his position and has earned removal.

I like and own guns.

[montestruc]

They (Washington, Jefferson, Franklin and associates) would never have considered the possibility that the government of a free people would try to disarm the people. That was to them the mark of a tyrant.

As it should be to you.

[ladyshooter]

Baloney! The Founding Fathers saw the dangers of maintaining a standing army. So, they decided a militia consisting of all able-bodied citizens was the best solution. The Militia Act of 1791 specifically identified the militia as consisting of all able-bodied citizens. Furthermore, the act required the militia members to report with their own firearms and ammunition of the type currently used.

If we were to apply the Militia Act of 1791 to the present, the act would be requiring citizens to report with the current military rifle and ammunition, i.e. the M16 rifle (as specified in the act, the citizens would be required to be keeping a M16). This is an interesting conflict with the Hughes Amendment of 1986, which prohibited any newly manufactured machineguns for civilian ownership. It would also conflict with the National Firearms Act of 1934.

[muffinman2]

"The original leaders of this country never intended to guarantee all americans, personal gun ownership"

Baloney is right! You need to bone up on your history. Look up some quotes from the Founding Father's, and you will see that they all believed in the individual right to own firearms.

"Wasn't even on the radar."

Nonsense. And it didn't have to be on the radar, because the right already existed, since the first Englishman set foot in Jamestown (1607). The Bill of Rights grants nothing. It affirms and guarantees existing rights.

[vespasian1]

"I like and own guns."

So do I, and I'm a fairly liberal Dem. But, I don't quite understand your position. Do you not believe that other people have the same rights you do?

No offense, but if that's the case, then you have an elitist view of the situation, like many pro gun control advocates who own guns themselves, or hire armed body-guards. These include people like Rosie O' Donnell, Barbara Boxer, Dianne Feinstein, Chuck Schumer, and Jesse Jackson, to name a few.

[pizzmoe]

It wouldn't hurt to look at why so many Americans are so obsessed with guns, love violence live is such abject fear that the idea of not having a gun makes them crazy. The constitution does not give individuals the right to own guns, but even if it did, why are people so scared?

[UnbiasView]

Actually if you read the ruling, yes it does.

People use guns for hunting and protection from others . . . what is so hard to understand about that?

[1will]

Wanting to safeguard a right does not make someone an obsessive gun nut.
SCOTUS ruled that the Constitution does guarentee the right of citizens to own guns. When the laws are studied people will look at the views of SCOTUS not pizzmoe. You are wrong.

[muffinman2]

"The constitution does not give individuals the right to own guns,"

No, it doesn't. The Constitution (Bill of Rights) does not grant rights. It recognizes, affirms, and guarantees previously existing rights.