It's Time for Gun Control Proponents to Reclaim the Constitutional High Ground





Mr. Cornell, a writer for the History News Service, is a professor of history at Ohio State University and author of A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (2006).

Few issues in America are more controversial than guns. Yet even among hot button topics in American public life there is something perverse about the dynamics of the debate over guns.

Polling data for decades have shown that most Americans favor stronger gun laws. Indeed, surveys demonstrate that such policies are even supported by most gun owners. Yet pundits and political soothsayers have written off this issue because it is perceived to be a loser at the polls.

Gun rights and gun control have long histories. Although both sides in the great American gun debate have claimed to have history on their side, each has presented a version of the past that is highly selective. One of the many embarrassing truths about the debate over the right to bear arms that neither side wishes to admit is that gun rights ideology is the illegitimate and spurned child of gun control.

Efforts at gun control, particularly policies aimed at broad scale prohibitions of firearms, have generally led to an intensification of gun rights rhetoric and activism. Understanding the history of this tangled relationship, one of American history's more bizarre examples of ideological co-dependency, may provide some insights into how we might move this debate forward and break this cycle.

As long as there have been guns in America there have been regulations governing their use and storage. Without government direction there would have been no body of Minutemen to muster on the town greens at Lexington and Concord. If the Founders had imbibed the strong gun rights ideology that drives today's gun debate we would all be drinking tea and singing,"God save our gracious Queen."

Ironically, the Second Amendment does not prohibit robust gun regulation, it compels it. Today's gun rights ideology is antithetical to the original understanding of the Second Amendment and only emerged in the 19th century when individual states began passing the first gun control laws to deal with the new problems posed by hand guns.

Mayor Michael Bloomberg's recent summit on gun violence reminds us that this is not the first time in American history that gun violence and gun control have been on the minds of New Yorkers. DeWitt Clinton, mayor from 1803 to 1815, bemoaned the problem posed by hand guns almost two hundred years ago.

There is much to be learned from America's first gun violence crisis and the first gun control movement. It is not surprising that during that struggle gun rights supporters tried to lay claim to the Second Amendment by reinterpreting it as an individual right of self defense. This argument continues to be effectively employed by opponents of gun regulation.

Modern gun control proponents have generally been embarrassed by the Second Amendment, viewing it as an anachronism. Early proponents of gun regulation did not make the same mistake. Rather than dismiss the Second Amendment as a remnant of America 's revolutionary past, they venerated it, reminding their opponents that the Second Amendment was about an obligation citizens owed to their government and communities to contribute to public defense. They also staked out another right that has not been much talked about recently in this debate: a right to be free from the fear of gun violence.

What does all of this mean for the contemporary gun debate? Proponents of gun control must not demonize gun owners, particularly given the fact that most gun owners support reasonable gun regulation. Any solution to America's gun problem must have the support of gun owners.

Rather than abandon the Second Amendment and dismiss it as a relic of another era, supporters of gun regulation need to reclaim this part of our constitutional heritage. Supporters of regulation need to point out that liberty without regulation is impossible. The right to be free from the threat of gun violence deserves as much respect as the right to bear arms.


This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.



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Bradley Smith - 3/5/2008

I agree entirely with your final observation. It occurs to me that if the word "guns" is replaced with the word "arms," which surely is what is intended to be discussed, then we have got a problem with the State that needs to be addressed.


Tim Matthewson - 10/21/2007

Right, America is a real polite place. Why not ask the 20,000 dead people and their families if they think that America is real polite? Indeed, the southern US has long had a reputation as being the region characterized by its good manners. But it also has a reputation for dueling and lynching and mob violence against white and blacks.
Get real. Guns don't solve problems, they create problems, such as homicide!


andy mahan - 9/19/2006

I think we pretty much understand that the rights and liberties granted citizens by the US Constitution are the minimum levels that MUST be protected. States, on the other hand, can guarantee additional, and higher level protections yet cannot diminish the rights extended by the US Constitution.


Irfan Khawaja - 8/4/2006

I find the message of this article confused and confusing.

The author tells us that the 2nd Amendment implies gun control. I can accept that; I'm in favor of gun control. He then tells us the 2nd Amendment cannot be read as supporting an individual right of self-defense. This latter claim makes no sense whatsoever.

The 2nd Amendment makes reference to "a well-regulated militia." It is one thing--and a legitimate thing-- to take the phrase "well-regulated" to imply a commitment to some sort of gun control. It is quite another thing--and simply incoherent--to take the word "militia" to exclude a right of individual self-defense. If individuals didn't have a right of self-defense, how could militias get them? If individuals didn't have a right of self-defense, how would anyone or anything have any rights at all?

The author needs to come clean on the status of individual self-defense. Is it his view that we literally give up that right because we've entered government? In that case, if I'm attacked, is he saying I can't use force to resist an attack on me? But if he thinks I can resist my attacker, and my attacker has a gun, why can't I resist him with a gun? Commonsensically, it seems that I should have the right to shoot him.

I've often heard the more unrealistic proponents of gun control insist that instead of firing a gun, we should dial 911. But this claim is patently silly. What if I don't have a cell phone? What if there's no time to dial it? What if I'll be killed by the time the police come? More importantly, why should my very life have to take a back seat to some historian's interpretation of the original intention behind the 2nd Amendment?

There is a sensible middle-of-the-road position here. Grant that individuals have a right of self-defense. Grant that in America, this right includes a right to firearms of certain types (but not others). Then appeal to the State's legitimate monopoly on the legitimate use of force to regulate firearms in a reasonable way. None of this violates the 2nd Amendment, but none of it requires that we literally ask ourselves what its authors would do to figure out what we should do.


Irfan Khawaja - 8/4/2006

Thanks. I think my view would only be controversial to people who believe (a) that we have an unlimited right to purchase any sort of weapon we want regardless of any other consideration, and (b) those who deny that individuals have a right to self-defense (or have any individual rights at all).

Claim (a) presupposes anarchism, and claim (b) presupposes totalitarianism.

Once you reject those two positions, gun control is just a technical legal matter about which guns are to be regulated how. That's not an easy issue, but it's not a deep philosophical problem, either.


Neal J. Lang - 6/22/2006

"At the start of the Civil War, Abraham Lincoln had to call up the Militia to protect Washington --because many of his top military officers were with his Secretary of War Jefferson Davis organizing an army to attack Washington."

Hmmm! Under what Article, Section and Clause of our Constitution does the President base hit authority to "call forth the militia?"


Neal J. Lang - 6/22/2006

"The Federalist papers are not particularly relevant to this discussion because all three authors opposed a bill of rights at that point in time. They were politicians arguing for passage of the constitution as drafted in Philadephia."

But one of the Federealist Papers authors, James Madison, actually present the original draft of the Bill of Rights to Congress, and by such received the recognition of being both the "Father of the Constitution and the Bill of Rights"?


Neal J. Lang - 6/22/2006

"Be wary of where your "non sequitor" argument leads. State governments, unlike our national governments, are not limited by the concept of enumerated powers."

Really? A just what do you suppose the various State constitution do, if not limiting the "power" of the State governments by delgating to them "limited" Powers?

"It takes no effort to stand your argument on its head and ask, "Where is the indication that the people, through their government, do not have the power to interpret that right as narrowly as the wording allows?"

If a "majority" can narrowly limit a "right", then that "right" is no longer a "right", but a simply "privilege" granted by government. You forget that the Constitution was originally passed and ratified without a "Bill of Rights", primarily because the Framers believed that the "rights" in question existed with "the People" before the institution of their government. Unlike our British rulers, the Founding Fathers established the United States based on a "new World order". The "old World order" was based on a construction of sovereignty whereby the King (government) was given its power by God, and on that basis government was the source of "the People" right. The Founders, as stated in the founding document of this Nation, the "Declaration of Indepence", established the "new order" whereby God granted to "the People" sovereignty, and then "the People" could "delegated" some of their sovereignty to government through a Charter, such as our Constitution. If you note that the 2nd Amendment does not speak of "Congress making no laws respecting". Instead, it definitively STATES - "the right of the People to keep and bear arms SHALL NOT BE INFRINGED", thus limiting the Federal government authority when it came to an armed people way beyond simple law making.


Neal J. Lang - 6/22/2006

"Proof: The vast majority of people with strong-line anti-gun positions (ban them all!) nonetheless would agree that, for example, a woman has the right to strike back at a rapist."

Unfortunatedly they don't. See Great Britain as an example.


Neal J. Lang - 6/22/2006

"There are three types of regulation at issue here.
1. Regulation of ownership.
2. Regulation of use.
3. Regulation of purchase."

Regualtion of ownership: Actually, the 2nd Amendment provides for two "rights" - the "right to keep" and the "right to bear" arms - free from the "infringement of governmet.

Regulation of use: Actually ALL RIGHTS are subject to "restriction" on their use, including "freedom speech and the press". "Rights" are not license, as "rights" never can be exercised for "evil purposes", only "good". "The People's right" to "keep and bear arms" exists inorder to allow "the People" to exercise "self-defense" for themselves, their families, their neighbors, their communities, their States, and the Nation.

Regulation of purchase: If the government retains the "power" to regulate purchase", than "the People's right to keep and bear arms" does not exist. A with the "sufferage right", the State can "debar" and individual the right to "keep and bear arms" if the have proved themselves to be "untrustworthy" by being convicted of a felony. Beyond that, the government cannot "regulate" trade in firearms.

As for just what types of "arms" were contemplated by the 2nd Amendment, according to "Miller" the Reynold's Supreme Court found that specifically weapons that might be considered part of the equipment of a "well-regulated" military force could not be regulated by the Federal government without violating the restraints of the 2nd AMendment. That being the case, sales of firearms, such as the AK47, BAR, Thompson Submachine Gun, and M-16 (all fully automatic machine guns or TRUE "assault rifles") could never be limte by Federal law. The National Firearms Act of 1934, merely taxed the purchase of fully automatic and short barrelled firearms. However, the "ability to tax" is also the "ability to destroy".


Neal J. Lang - 6/22/2006

"The statement by (Tim) is crap! "(Tim) does not know what he is talking about."

The Colonies rebelled against England because the King demonstrated NO RESPECT for "individual rights" of the colonists. The 1775 "Shot heard 'round the World" was fired at Lexington and Concord by armed "citizen militia" at British troops on a "gun control" raid. BTW, until the 1920s and '30s, Englishmen enjoyed virtually NO restrictions on their individual "right to keep and bear arms". Even beyond what their American cousins enjoyed. However, on the pretext of "fear of rebellion and anarchy" by radical communists, the British government gradually began resticting "the right of the People to keep and bear arms", along with the "right of self-defense", both of which are today all but non-existent.

Japan, until losing to the US in WWII, had a culture where the average person was debarred "the right to keep and bear" while a caste of mercenary warriors, the Samurai, were the only ones permitted to be armed. Of course, the royalty and wealthy landowners, which made up the government, hired these Samurai mercenaries to insure their power by keeping down the peasant population. To hold Japan up as an emample of an enlightened, free society is truly quite dumb. In addition to nothing meeting any resemblance of US 2nd Amendment Rights, the Japanese also lack 4th and 5th Amendment protections for their citizens. Also their 1st Amendment rights are substantially curtailed. As for Japan being a "civilized, advanced industrial democray with regards to "individual rights", I suggest that you ask the Japanese-Koreans who have lived and worked in Japan for generations over centuries and to this day are still considered "gaijin" (foreigners), by the bigoted and racist Japanese.

"West European countries and other similar societies have highly rescrictive gun laws and ceeabrate their respect for individual rights."

You mean like Germany, that first had to disarm its popultion with draconian Gun Control Laws (that, BTW, became the model for the US Gun Contral Act of 1968) before that government could effectively demonstrate its the true "respect for individual rights" by slaughtering some 6 million Jews and other "undesirables" in their "Final Solution". Had the Jews met the Gestopo and SS with legally owned firearms when they came for them, Hitler would have found recruiting Gestopo and SS to be a lot more difficult task.

"The rights of Englishmen were the foundation for the American constitution and bill of rights and England is as free or freerer than the Unites States and Brits are far safer from violence than the citizens of the U.S." Actually, unless you live in one of the America's "gun free" zones, such as Washington, DC, Americans experience substantially less violence than do their English cousins.

"The US is a second class country when it comes to the question of violence, more like some third world dictatorship than a civilized advanced industrial democracy."

If you bother to check, you will see that the violence in most "third World dictatorships" is inflicted on "unarmed" private citizens by armed "dictatorial" governments or their armed "henchmen". For an example see the "ethnic cleansing" in Kosovo, Bosnia, Sudan, and Rwanda as merely a few of the most recent examples. In Rwanda, had the Tutsis been armed, they might have ended the Hutus' "ethnic cleansing" before it began, by merely meeting the "machete weilding" Hutu mobs with legally owned firearms.

"An armed population is a polite population".


Tom Gunn - 5/20/2006

5 years ago an article like this would have generated 100's if not 1000's of posts.

Gun control is a failed proposition.

Can't even gererate a buzz here.

I'm sure happy.

I currently have two ccw permits and will be getting a third soon.

Life is grand with a defensive gun in hand.


tom gunn




Henry Sydney - 5/19/2006

Well, Mr. Khawaja, at least you've leveled your logical fallacies against both sides.

FALSE DICHOTOMY I (against pro-gun people)
A person either agrees that some guns should be regulated or he is an anarchist who rejects consideration of other factors.

Proof: Most pro-gun people oppose the regulation of particular guns as "bad guns," but most (including the NRA) also accept that certain classes of people should not be allowed to buy or otherwise access weapons (the insane, toddlers, etc).


FALSE DICHOTOMY II (against anti-gun people)
A person either agrees that people should have access to some guns or he is a totalitarian who rejects the concept of self defense (if not all individual rights).

Proof: The vast majority of people with strong-line anti-gun positions (ban them all!) nonetheless would agree that, for example, a woman has the right to strike back at a rapist.


Bill Heuisler - 5/19/2006

Mr. Matthewson,
Lunch meat is a very private matter. But your naivete about the world has become embarrassingly public. You obviously know nothing about guns, the Second Amendment, England or freedom. England's crime rate has risen since most guns were banned. Japan's personal freedoms are very restricted in matters of housing and work and their justice system. Just once travel to a third world country like Egypt, Morocco or even Mexico and compare your safety with the US.

And when you graduate from school and peek into the world of grownups you'll realize how difficult it would be to "remove" guns. How?
Wave a wand, perhaps?

Or would you try to confiscate all guns from citizens - maybe search every home and person? And disarming all those criminals would be quite a task, wouldn't it? And where do you see people shooting down others? Try to remember television isn't real. Read something other than DC comic books, travel beyond the playground, talk to adults. Grow up.
Bill Heuisler


Tim Matthewson - 5/19/2006

The streets of American cities are not safe because of the presence of guns on American streets. Remove the guns and the safety of Americans would increase.
The US is like some Third World dictatorship when it comes to guns for everybody thinks that it's OK to shoot down those you don't like.
It is far safer in countries such as England and Japan where guns are restricted and said countries are also freer than the United States for they genuinely respect the right of the individual to life.


Oscar Chamberlain - 5/18/2006

The Federalist papers are not particularly relevant to this discussion because all three authors opposed a bill of rights at that point in time. They were politicians arguing for passage of the constitution as drafted in Philadephia.

There may be an assumption of a core right to own some form of firearm behind the second amendment. But the amendment itself has more to do with the ratification arguments over the dangers of a standing army (Don Williams is probably correct about that) and the relations between states and the national government than it does with protecting the rights of people to bear arms. Both the framers of the original constitution and the framers of the Bill of Rights left that to the states just as they left the recognition and protection of many other rights to the states.

You are correct in questioning the assertion that the second amendment was intended to "compel" regulation, except perhaps in clarifying the role of the states in the militia system. I will be interested to see in Cornell's book what evidence he uses in backing that assertion.


Tim Matthewson - 5/18/2006

The statement by Jacoby is crap! Jacoby does not know what he is talking about. England, Japan, west European countries and other similar societies have highly rescrictive gun laws and ceeabrate their respect for individual rights. The rights of Englishmen were the foundation for the American constitution and bill of rights and England is as free or freerer than the Unites States and Brits are far safer from violence than the citizens of the U.S. The US is a second class country when it comes to the question of violence, more like some third world dictatorship than a civilized advanced industrial democracy.


mark safranski - 5/18/2006

I was very much amused by the author's attempt to revise the history behind the 2nd amendment by accusing his opponents of revising the history behind the 2nd amendment. Either he's exceptionally cynical or is a true believer in gun control the sense meant by Eric Hoffer.

Here is a neat juxtaposition. In this passage Cornell writes about the opponents of gun control as revisionists:

" It is not surprising that during that struggle gun rights supporters tried to lay claim to the Second Amendment by reinterpreting it as an individual right of self defense"

And here he writes about Gun control advocates:

"They also staked out another right that has not been much talked about recently in this debate: a right to be free from the fear of gun" violence."

Really ? Where is that found in the 2nd amendment ? I don't recall Hamilton, Madison and Jay writing in the Federalist Papers about the need for a well-regulated militia as a mechanism to get guns out of the hands of irresponsible frontiersmen either. I guess one man's illegitimate "reinterpretation" is another man's " right not talked about much lately"

Self-Defense, by contrast, can at least make the appeal to hundreds of years of common law precedent as well as statutes defining the legal use of deadly force.

Perhaps the whole root of the gun control argument is a psychological discomfort with self-defense.

http://zenpundit.blogspot.com


Don Williams - 5/18/2006

I'm not talking about a "right of revolution." as you use it. I'm talking about Congress and the State Governments having the power to protect themselves from illegal and unconstitutional aggression by the President. The Supreme Court and Congress do not have the power to impose a tyranny on the US --the Executive Branch does.

The Congress has the power to impeach the President -- not the reverse.

But the problem may not be the President --it may be a faction within the military or Executive Branch. At the start of the Civil War, Abraham Lincoln had to call up the Militia to protect Washington --because many of his top military officers were with his Secretary of War Jefferson Davis organizing an army to attack Washington.

Congress controls the Militia but Congress does not have the right to destroy the Militia with gun control legislation. Just as Congress does not have the power to scrap freedom of speech, press, and assembly. The reason is that if a specific Congress did those things it would endanger the Constitution and the existence of future Congresses.

There are other such constraints in the Constitution --e.g., the ban on Congress appropriating military funding for a time period beyond its time of office. I.e, the 107th Congress can fund the military during its two year period of existence -- the 107th cannot pass a law funding
the military into the future --into the time periods of the 108th and 109th Congress.

The purpose of the Bill of Rights --including the Second Amendment -- was explicitly stated as being one of contraining the power of the federal government.

Your analysis of our present day situation is incomplete. The problem
is not just the size of the standing army but the extent to which it is "fixed" by a countervailing power or opponent.


We built up a huge military establishment under the pressure of the Cold War but we are keeping it after our opponent collapsed. For the first time in 225 years we have a huge standing army unopposed by any countervailing force.


Oscar Chamberlain - 5/17/2006

I like your approach to the problem.


Oscar Chamberlain - 5/17/2006

Bellesiles cooked his findings concerning gun ownership, for which he has rightly been exiled from most scholarly circles. The dimensions of the right to bear arms and the ability of government, state or federal, to regulate or restrict aspects of that are a legitimate topic for debate.

If you think someone here is lying or using information misleadingly, indentify it. If you think someone is wrong, say why. If you think an interpretation is bad, give your own.

But if the best you can do is guilt by association, then you don't have much to say.


Oscar Chamberlain - 5/17/2006

A few points

1. Most of my comments above were directed at the state level, not the national level. The situation at the state level is very different constitutionally.

2. There is, in fact, no right of revolution at either the state or federal level. More precisely, people only have the right to revolt violently against the government if they win. (They may have the moral duty to do so in some situations, but that is a different argument.} The framers of the constitution were far more concerned with putting down a Shays' rebellion of the future than with legitimizing one.

3. The mechanisms that you note for civilian control of the militia always have it under a government elite at some level. The militia do not stand apart from government.

4. I am not arguing above that a near absolute right to bear arms might not protect us against tyranny; I am simply noting that the phrasing of these rights always (to my knowledge) is conditioned with specific purposes. And revolution against the government is generally not listed.


5. That the presidenncy over time has taken over from Congress some of its military/militia oversight, I agree is true. But part of the responsiblity for this lies with the cross pruposes of the founders. They wanted the presidency and the military to be limited by Congress and yet they also wanted the president free to respond militarily to internal as well as external threats quickly.

So long as the military was small, this contradiction rarely surfaced. A president had to go to Congress to get an army. AFter World War II, our military build up stripped that away. He has a great military at his command. Neither the original constitution nor the Bill of Rights anticipated this.


Don Williams - 5/17/2006

Anyone remember the Bellesiles Arming America scandal a few years ago?

I think Bellesiles was actually the spearhead for an attempt by a group of historians favoring gun control to construct a historical narrative in order to influence the Supreme Court, as the Court prepared to address a Second Amendment case that could have defined the meaning of the Second Amendment.(US vs Emerson)

I wrote an article about those historians here at HNN. Saul Cornell was one of them. See http://historynewsnetwork.org/articles/article.html?id=741

For an overview of the Bellesiles scandal, see HNN's article here: http://hnn.us/articles/691.html

The historians' mob might have succeeded if Clayton Cramer had not stuck out his foot and sent the whole matter down some hard, steep stairs. hee hee


Don Williams - 5/17/2006

In the 1780s, Congress defined it as all white males of military age --17 to 46-- not in the military. Which covered most of the citizens who could vote. Today it is defined to cover most of the citizens -- ALL men of military age --plus those women in the National Guard.


Don Williams - 5/17/2006

1) First, the phrase "A well regulated Militia, being necessary to the security of a free State,"
is NOT a restriction on the right to bear arms. It is an explanation of why that right is so important and so necessary.

A MILITIA --of all citizens --NOT a federal STANDING ARMY --is NECESSARY to the SECURITY of a FREE state.

2) The reason is that there are 3 possible threats to a state:
a) invasion by a foreign enemy
b) domestic insurrection --an attempt by a domestic faction to overturn the Constitution
c) An attempt by the President or some faction in the Executive Branch/Military to overthrow the Constitution and institute a dictatorship --probably under the guise of "emergency measures" --see
"Patriot Act" and Attorney General Gonzales various pieces of legal sophistry. Read Tacitus's description of how Augustus Caesar gave lipservice to the outward forms of the Roman Republic while replacing it in reality with a veiled dictatorship.

3) Gun control proponent never address the third case, but it was certainly in the mind of the Founders. Of the three branches of government, only the Executive Branch has the resources and power to install a dictatorship. The Founders well knew that: In 1783 , the officer corps of the Continental Army discussed overthrowing Congress -- google "Newburgh Mutiny". In a separate incident, A unit of the Continental Army actually took the Congress prisoner by surrounding Independence Hall in Philadelphia --
Congress escaped by getting the unit drunk and then fled to the protection of the Princeton Militia.

4) The Constitution explicitly states that the Congress can impeach and remove rogue Presidents and military officers --

maybe Mr Chamberlain can explain to us what Congress is supposed to do if the President/military officers refuse to recognize the authority of Congress to do so.

Note that the President cannot remove members of Congress.

Note other measures in the Constitution --CONGRESS controls the seat of government --the District of Columbia.

5) THE major mechanism in the Constitution for dealing with case (c) is the fact that CONGRESS --NOT the President --controls who is in command of the Militia.

In the event of case (a) or (b), then Congress can give command of the Militia to the President.

But if the President/Federal Army is the threat, then Congress gives command of the Militia to the State Governors and flees to their protection.

This is not speculation -- James Madison, the primary creator of the Constitution, explicitly described this mechanism in Federalist 46.

6) A Militia is not necessary for the defense of a dictatorship -- a standing army can handle cases (a)
and (b). But the reason a Militia is NECESSARY for a FREE state is that only a
Militia can deal with case (c). A secret conspiracy may plot a coup -- a secret
takeover of the command of the standing army. But it's impossible to seize control
of the militia in secret --due to its nature. Madison went on to note in Federalist
46 that a unified Militia will always be able to defeat the formal military --
because no nation can afford to sustain a standing army larger than 1/100 of the
population.


Henry Sydney - 5/17/2006

>>If you disagree with my parsing, that's one thing. But you seem to disagree with the necessity of doing that at all. And I find that strange.<<

Of course there's a need to interpret the words. I simply disagree with parsing them outside their historical context.

You want to ignore the history. I don't. I don't see how continue the discussion.

Ta Ta


Oscar Chamberlain - 5/17/2006

Actually I was referring to our discussion and not to your criticism of Cornell.

You have not grappled with something fundamental: states--as opposed to the national government--have power except where prohibited by the state's constitution and by national law and the national constitution.

Because of that, the pecularities of statements of the right to bear arms are of considerable import and must be "parsed" or interpreted, because where the right ends, state power begins. And there are straightforward interpretations most statements of the right to bear arms that would leave individual states broad powers to regulate the right to bear weapons and, as you do note above, even greater power to regulate their use.

If you disagree with my parsing, that's one thing. But you seem to disagree with the necessity of doing that at all. And I find that strange.


James Jacoby - 5/17/2006

If it were true that "most Americans favor strong gun laws," why would politicians that push for these laws keep getting voted out of office?
Does Cornwall really think that the "uber-powerful gun lobby" really has the power to rig elections.
The fact remains that unless temporarilly swayed by the emotional response to some tradgedy involving a gun, most Americans realize that gun restrictions will not stop violent crime.
It is those knee jerk reactions to isolated events that scare me most. Australia lost almost all of its gun rights because of a massive over reaction to one event (Port Arthur). When people are afraid, they make all sorts of irrational decisions. Groups like Handgun Control have been trying to scare people into giving up their rights for years. But the election results across the nation speak for themselves. Americans aren't buying it, and most Americans are clear thinking enough to know that "strong gun laws" only hurt those that follow them. And by definition, only the law abiding follow them.


Henry Sydney - 5/17/2006

>>You want to ignore the words when you don't like them and pretend that intent trumps the phrase if the two are in conflict. <<

You're out of line.

Cornell made claims about the intent of the framers. Thus, it is appropriate for me to place the burden of proof on him -- or his proxies in these threads -- to provide evidence of that intent from the historical record.


Lawrence Brooks Hughes - 5/17/2006

"Polling data for decades" can be cooked by clever questions...

I think it is highly significant that state legislatures have quietly been passing concealed handgun laws, one after another. Something like 43 states how give their citizens this right. Those legislatures have been swayed by the evidence set out in such books "More Guns, Less Crime." I don't think the legislators in the majority on the pro-concealed handgun question have any doubt that their constituents are affirmative about concealed carry. And why not, since it is proven to reduce crime?


Oscar Chamberlain - 5/16/2006

Henry

Concerning: "parsing words outside those contexts," you simply have to deal with such parsing. It is often difficult to know the original intent of the people who write a document, not to mention that intent of those who read and ratified it.

For that reason, the first and most important source of meaning in any constitutional phrase is the words that make up that phrase.

You want to ignore the words when you don't like them and pretend that intent trumps the phrase if the two are in conflict. Neither is the case.

I say this not to defeat the right to bear arms, which I support. I say it because a lawyer relying on a clear interpretation of the text of the constitution can often defeat one who tries to "amend" the text by turning to intent.


Clayton Earl Cramer - 5/16/2006

Professor Cornell's argument seems to be built on the notion that the choices are either complete laissez faire (handgun vending machines in elementary schools) or his model. This is a strawman argument.

There's no question that the Framers, fairly pragmatic men that they were, supported reasonable regulation of firearms. But what constitutes "reasonable regulation"? You can search all you want through colonial and early Republic documents, and the most that you will find are the following classes of regulation:

1. Laws requiring gun ownership, and in some cases, requiring you to carry a gun. Here are a number of examples.

2. Laws whose purpose was to protect public safety from accidental or negligent firing or storage of firearms or gunpowder. This article examines a number of such statutes, including a 1786 Massachusetts law that Professor Cornell has pointed to as evidence of the lack of an individual right. But the statute, which prohibits leaving a loaded firearm in "any house, outhouse, barn, stable, store, ware-house, shop, or other building" is clearly a fire safety ordinance. ""Whereas the depositing of loaded arms in the houses of the town of Boston, is dangerous to the lives of those who are disposed to exert themselves when a fire happens to break out in the said town...." The law does not prohibit carrying a loaded firearm on the streets, and the ban on bringing loaded firearms into buildings is clearly for purposes of fire safety only. Otherwise, it would have been a general ban on carrying loaded firearms.

Interestingly enough, the list of items that you weren't allowed to have loaded in buildings in Boston tells us a lot about what the view of Bostonians was with respect to weapon possession. It applies to "fire-arms, or any bomb, granade, or other shell" and "cannon, swivels, mortars." Yeah, this is definitely a sign of the fierce antigun mentality of the time!

3. Laws that limit certain classes of people from owning guns.
Slaves, not surprisingly, weren't trusted with guns (except when they were armed as part of some of the colonial militias), and in some colonies, free blacks weren't trusted, either. And guess what? Nothing has much changed. Much of the advocacy of "reasonable gun control laws" and licensing is really the same attitude: that "some people" can be trusted, but not "other people." By making the licensing decision discretionary, advocates of restrictive gun control get to hide the racist roots and current purposes of their laws.

Exactly who these "untrustworthy" sorts are changes with time. Individuals were disarmed for crimes during the Colonial period--although because most serious crimes--and even some that aren't so serious today--were hanging offenses, felons usually didn't need to be disarmed, since dead men with guns aren't very dangerous. In the 1920s, California adopted a law prohibiting non-citizens from possessing concealable weapons--and the stated goal was to disarm Chinese and "Latins." (Other parts of this law--including California's current discretionary concealed weapon permit law--survived court challenge, even though the ban on resident aliens was struck down in People v. Rappard (Cal.App. 1972).

Except for a few ideologues, there is general agreement that governments have the authority to prohibit gun ownership by violent criminals, those who have been adjudicated mentally incompetent, minors, alcoholics, and drug addicts. Whether a particular gun control law is an effective method of achieving these desirable goals, however, is where the argument lies.


Henry Sydney - 5/16/2006

>>In the last couple of posts, I was referring specifically to state constitutions, not the national one.<< Well, there's also an historical record for those.

I'm not trying to be a jerk. But I don't see the point of parsing the words outside those contexts.


Oscar Chamberlain - 5/16/2006

In the last couple of posts, I was referring specifically to state constitutions, not the national one.


Henry Sydney - 5/16/2006

>>Let' say we can't know what the people who wrote that meant.<< But we can know. There's an historical record. The founders wrote plenty about "bearing arms." There's also a legislative record for the Bill of Rights.

We have an assertion (words = limited right). There's an historical record. Thus, whoever defends that assertion is obliged to provide evidence from the historial record.

I don't see the point in parsing the sentence outside its historical context ... no offense.


Oscar Chamberlain - 5/16/2006

"Thus we're dealing with non sequitur and speculation"

Let' say we can't know what the people who wrote that meant. A provision is not meaningless in the absence of a known intent, but without such knowledge we are left with the phrases themselves. And compared to the statement of other rights, the usual statement of the right to bear arms is more limited.


Henry Sydney - 5/16/2006

>>The question is, to what extent does the stated right carve out an exception to the power of the state.<<

To the extent that there's evidence that the writers chose their words to imply a limitation ... or at least to the extent that there evidence that the writers believed in such limitations.

Where's the evidence?

Once again, perhaps that was their intent. But we have no evidence. Thus we're dealing with non sequitur and speculation.




Oscar Chamberlain - 5/16/2006

No. What I am saying is this. In the absence of stated right to bear arms, the state government would have the power to allow, regulate, or even ban the possession of firearms. The question is, to what extent does the stated right carve out an exception to the power of the state.


Henry Sydney - 5/16/2006

>>State governments, unlike our national governments, are not limited by the concept of enumerated powers.<< I never said otherwise. Either way, we still require evidence that they indended to limit the right before asserting that point.


Henry Sydney - 5/16/2006

>>It takes no effort to stand your argument on its head and ask, "Where is the indication that the people, through their government, do not have the power to interpret that right as narrowly as the wording allows?<<

Yes, that's why I wrote, "Perhaps the founders did intend limitations. But where's the evidence?"

These threads are about Cornell's thesis. The burden of proof is on him -- or at least on his proxies here.


Henry Sydney - 5/16/2006

Crew weapons (cannons) and warships were privately owned in the post-Colonial era. I thus suspect that that the framers would have been comfortable with private ownership of their modern equivalents -- tanks, warplanes, etc.

This leaves free ownership of anything normally viewed as a *firearm.* The framers would be comfortable with people owning any *firearm,* whatsoever, period.

Would Tommy Jefferson have wanted to limit private ownership of atomic bombs. Yeah, probably. But that "fact" doesn't help us much in deciding whether a particular *firearm* is open to regulation.

No offense, but the "atomic bomb control" argument is a red herring.


Oscar Chamberlain - 5/16/2006

Be wary of where your "non sequitor" argument leads. State governments, unlike our national governments, are not limited by the concept of enumerated powers.

It takes no effort to stand your argument on its head and ask, "Where is the indication that the people, through their government, do not have the power to interpret that right as narrowly as the wording allows?


Henry Sydney - 5/16/2006

Oscar,

Yes, I'm very familiar with the argument you're describing.

With all due respect, it's simply a non sequitur – and mere speculation – to jump from "they provided justification" to "thus, they intended limitation."

Where's the evidence?

If the framers wanted a limited right, I’d think there’d be indications in their writings, in the legislative record of the various constitutions, or at least in the laws they passed circa 1789-1820. While there were some laws proscribing certain uses (no shooting inside town, no carrying pistols concealed), there are none targeting ownership until decades later (targeting recently-freed slaves).

Cornell certainly doesn’t provide evidence. Indeed, he engages in yet another non sequitur – that the post-Colonial duty to arm oneself implied a state power to take away those arms … he blurs *duty of the militia* with *regulation of guns*.

Perhaps the founders did intend limitations. But where's the evidence?


Oscar Chamberlain - 5/16/2006

Henry,

I think we are talking past each other a bit. So let me try to rephrase.

The right to bear arms is rarely stated in absolute terms. Most, maybe all, constitutional provisions link that right to other purposes. The question then become this: is the existence of that link a statement that the right to bear arms is limited to fulfilling those other purposes? If so, then it leaves the state open to placing limits on that right that don't undercut the linked purposes.

It is useful here to compare the phrasing of the right to bear arms with the phrasing of other rights. To my knowledge, no free speech, petition, and assembly clauses in any state constitution link those rights with the purpose for which that speech will be used. Thus those rights are unbounded (at least until you get to "yelling fire in a crowded theater").

Whether one is a strict of a loose constructionist, such differences in phrasing matter. If the right to bear arms is as a broad as the right to free speech, why do constitutions not simply say that a person has a right to own and carry arms and leave out the purposes?

One logical answer is that the provision is intended to allow some limitation upon the right to bear arms. If that is the case, then under a constitution in which the right is limited only to creating a militia, the state could use its power to make sure that men bear arms only when doing their duty.


Henry Sydney - 5/16/2006

>> Not really. If the state provides the arms at a central armory, then the individual right is unnecesary for the purpose of forming a militia. <<

Another non sequitur. It is a non sequitur to suggest that the state's provision of XYZ negates the right to private ownwership and use XYZ for the same purpose.

You are confusing the concept of "need" (the "need" to have arms to defend the state) with the concept of "right" (the "right to have arms to defend the state).

Just because the state fulfills the need, the right remains. Rights are not dependent on need.


Oscar Chamberlain - 5/16/2006

"It is a non sequitur to suggest that the duty to own arms to defend the state extends a power to the government to limit that ownership."

Not really. If the state provides the arms at a central armory, then the individual right is unnecesary for the purpose of forming a militia. That's why many state constitutions--such as the Michigan one quoted in a comment above-- indicate that self defense is also a reason for the right to bear arms. The defense of the home or person requires a right to ownership of weapons.


Henry Sydney - 5/16/2006

Cornell engages in a non sequitur on this point.

It is a non sequitur to suggest that the duty to own arms to defend the state extends a power to the government to limit that ownership.

If the state has such power, it most certainly does not come from the various expression of the right.


Henry Sydney - 5/16/2006

Mr. Chamberlain,

There are three types of regulation at issue here.
1. Regulation of ownership.
2. Regulation of use.
3. Regulation of purchase.

1. People in Michigan (and elsewhere) have the right to *own* guns, whatever the justification.

2. Their *use* of those guns is otherwise regulated, and even "gun nuts" rarely object to certain regulations of *use* -- no hunting without a license, no target shooting in city limits, etc.

The only *use* regulation that gets much debate is concealed carry licenses, and most gun owners seem to accept some regulation here -- the debate primarily is of the type of license ("shall issue" vs. "may issue"), not whether licensing is justified.

3. Regulation of *purchase* is the sticky issue.

Does the mention of justifications -- "defense of self and state" -- give the government power to regulate the *purchase* of guns – to place barriers before the right? Frankly, I find it a non sequitur to say, "The explanation of a right implies a government power."

Thus, whatever power the government has to require background checks, etc. must come from elsewhere than the statement of the right. Perhaps such government power truly and justifiably exists – it simply doesn’t extend from the expression of the right.

That begs the question: where does that power come from?


******
P.S. States don't "extend rights," they protect them (at least in the Anglo-American understanding of "rights"). Understanding that difference is key to understanding the gun debate.


Oscar Chamberlain - 5/16/2006

I agree. Usually states can extend rights beyond what the national government does. I was simply pointing out that the Michigan provision did not provide an absolute guarantee but a conditional one (albeit with very broad conditions).


Bill Heuisler - 5/16/2006

Mr. Cornell wants to blur history and confuse stats to control the behavior of law abiding citizens.
Statistics speak for themselves, but arguments based on faulty history assume the ignorance of readers and build false justifications for specific points of view.

Mr. Cornell writes, "Without government direction there would have been no body of Minutemen to muster on the town greens at Lexington and Concord."

First, the actions at Lexington and Concord were those of local groups of patriots who had become loosely organized to resist the "government" and were not "directed" by anyone other than local community leaders.

Second, the Minutemen provide stark proof of the need for the Second Amendment in order to safeguard our other Individual Rights. Those who seek to restrict private ownership of arms in any jurisdiction ignore studies that pair lower crime rates with higher gun ownership and also show restricting firearm possession
only disarms the law-abiding citizen.

Lastly, most gun owners support the enactment of tougher penalties for crimes committed with guns. This does not translate into a desire for restrictions (which affect innocent citizens) but a desire for tough enforcement (which affects criminals)
Bill Heuisler


Oscar Chamberlain - 5/15/2006

But protection of the right to bear arms in the michigan provision is limited to two purposes. That suggests considerable room for regulation concerning the type of weapon and where it is kept.

There is room for regulation under both state (at least those I know) and national constitutional provisions.


Carl L Lot - 5/15/2006

Try as you may, support for Corn'balls biased research is fruitless. For instance, individual State constitutions also secure the right to keep and bear arms. Lets take the Michigan State constitution for example: "Every person has a right to bear arms for the defense of himself and the state". This States constitution make no mention of a "militia" ... so how do you deal with that?


James Jacoby - 5/15/2006

My comments were directed at the original acticle, written by Saul Cornell, not to the comments by Carl Lot. Carl Lot's comments are quite accurate.


Oscar Chamberlain - 5/15/2006

One of the challenges in this debate is the "upper end" of the arms that a citizen should command by right. I think there is a reasonable consensus that the right to bear arms does not extend to having weapons of mass destructions. But should the line between legal and illegal be there, be between bullets and missile, between automatic and semi automatic rifles, or somewhere else?

And what is proper criteria?


James Jacoby - 5/15/2006

It seems that Mr. Lot attempts to brush aside years of debate with one mighty sweep of his hand. The debate over the meaning of the Second Amendment phrasing has been going on for decades. Yet he confidently ends the debate with one or two sentences, leaving no room in his mind for doubt or controversy.
We can set that entire debate aside, and just for the sake of argument, pretend that the Second Amendment didn't exist. That does not change the fact that history has shown time and time again that an unarmed society eventually becomes a victimized society, whether by the government or by criminal elements in that society. So interpret the Constitution any way you like (I admit I disagree with Mr. Lot's "collective right" view of the Second Amendment) but guns should never, under any circumstances, be taken away from law abiding, and trustworthy citizens.


Carl L Lot - 5/15/2006

Cornell's take on America's Second Amendment is totally illogical and reflect the opinions of an anti-gun liberal. His statements are mearly 'opinion', not fact. Read "Dissecting the Lies" by Dan White to learn the truth at the following url:
http://www.ohioccw.org/index.php?option=com_content&;task=view&id=3599&Itemid=83

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