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Politics Mondays: Constitution Not The Right Target in Debate Over Firearms by Matthew Dennis


The debate over gun ownership in America threatens to make history its latest victim.

It might be a good idea to allow individual firearm ownership in the United States with little or no restriction. Or it might be a good idea to sharply restrict the possession of guns among Americans. But however such questions are resolved, we should not slaughter early American history - or assault constitutional principles - in the process. Gun advocates will need to make their case on its contemporary merits, because in fact the Constitution, specifically the Second Amendment, gives them no ammunition. An individual "right" to own firearms simply does not exist.

This might come as a surprise. Certainly partisans such as Pat Wray, writing in The Register-Guard on March 11, frequently invoke the Second Amendment, as does the National Rifle Association and other special interest groups. Repetition remains a tried and true educational technique, and repeating a claim persistently and with bravado can lead innocent hearers to regard it as true. But a misconstruction is a misconstruction, no matter how often repeated, whether out of ignorance or willful disregard for the facts.

Wray believes this issue will emerge prominently in the next presidential contest. He might be right, particularly given the recent unprecedented decision by the U.S. Court of Appeals for the District of Columbia. In a 2-1 vote, a panel of the court, ruling on the basis of the Second Amendment, overturned provisions in a D.C. gun-control law. The ruling might be revised by the full appeals court, but if it is not it could well work itself up to the Supreme Court, which will need to make its own ruling consistent with precedent or wrestle the Constitution itself into compliance with the gun lobby.

To clarify, we need a refresher course in early American history, etymology, and perhaps grammar 101. The Second Amendment, added to the Constitution in 1791 along with nine others, is a charter member of the Bill of Rights. It 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."

Why the ungainly opening clause? In the awkwardness of the sentence, there is purpose. It begins with the premise that explains the meaning and reason for the necessity of a "well-regulated militia" to ensure national security. It refers to "the State," not to individuals, and it expects security to be achieved not through individual action, but rather through militias that are "well-regulated," composed and subject to regulation by the state.

The idea that individuals would be empowered in the Constitution to mobilize without regulation in the face of some menace from the state itself is preposterous. Why would the Constitution arrange for armed rebellion against itself? In fact, in the late 18th and early 19th century, the insurrections that most worried the state were those emanating not from self-styled white "patriots" but from African-American slaves seeking freedom or native people defending homelands.

Having established its reason for being, the Second Amendment stipulates "the right of the people to keep and bear Arms." Why not say "persons" or "a person," as in other amendments, or why not be specific by specifying "a citizen"?

Actually the Constitution's rights are often not restricted to citizens, a fact that the current administration often forgets.

More to the point, "the people" refers to a collective body, and a collective right, not to individuals. In the First Amend- ment, for example, "the right of the people peaceably to assemble" is guaranteed. A "person" cannot assemble - only collectively, among people, does the right of assembly have meaning. But as we know from the prefatory first clause of the Second Amendment, the point here is to protect "the people" who collectively constitute the state.

And what are the people by right entitled to have done on their behalf? "To keep and bear arms." In the context of the sentence, and in the historical context of debates in the late 18th century, "to keep and bear Arms" has a quite specific meaning for state-controlled militias to collect, maintain and deploy the arms necessary for national defense.

The framers and initial amenders of the Constitution never discussed or ever imagined that they were enabling individual gun ownership. To "bear" arms is an ancient construction - indeed, it refers not merely to guns but to medieval pikes, bows and shields - and connotes the use of such arms in organized military actions.

Like many gun advocates who hope to sanctify their cause by wrapping it in the Constitution, Wray simply argues by assertion, unfettered by actual historical facts: "Our nation was built on individual freedoms, including the right to own guns." Yes, it was built on individual freedoms, among other things, but an individual right to own firearms was not one of them.

The recent U.S. Court of Appeals decision represents a stark and classic case of judicial activism in that it imposes on society an idiosyncratic and tendentious reading of the Constitution, at odds with precedent and historically informed readings of the Second Amendment, in order to overturn a law framed by a democratically elected body to serve the public interest.

The Constitution is a remarkable, living document that continues to guide and protect us. But some constructions of its meaning are more convincing than others. It's ironic that some seek to deploy the doctrine of "original intent" here - the effort to construe the meaning of the Constitution in exactly the same way as its 18th century framers. Such an approach is fraught, but in any case it's useless here. It won't arm gun advocates with credible arguments.

The Constitution neither precludes nor protects the individual ownership of firearms, and in ratification debates there is no smoking gun. Let gun advocates make their case, but they should not take the Second Amendment hostage in the process.

This article appears in The Register Guard


Matthew Dennis

Monday, April 2, 2007

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