THE BIG IDEA
Whose right on bearing arms? Second Amendment means what it says

By Glenn Harlan Reynolds, Globe Correspondent, 11/25/2001

THE ATTORNEY general of the United States is asked during a congressional hearing: ”What in your opinion would be the constitutionality of a provision added to this bill which would require registration of firearms?”

His answer: ”I am afraid it would be unconstitutional.”

The year is not 2001, but 1934, and the attorney general is not John Ashcroft, but Homer Cummings. Cummings was hardly the first to think that there were constitutional barriers to gun control. Throughout the 19th century, leading scholars such as Thomas Cooley, Joseph Story, and St. George Tucker had found that the Second Amendment protected an individual right to bear arms against federal interference.

Congress agreed: The 1866 Freedmen’s Bureau Act – designed to ensure that freed slaves enjoyed full constitutional rights – provided that ”the constitutional right to bear arms shall be secured to and enjoyed by all the citizens.”

Leading modern scholars of constitutional law agree. Harvard law professor Laurence Tribe has written that the Second Amendment protects an individual right. So have William Van Alstyne of Duke, Eugene Volokh of UCLA, Randy Barnett of Boston University, and many others. They also agree with Ashcroft’s statement that this right does not bar reasonable regulations aimed at preventing crime rather than disarming honest citizens.

The 20th century Congress agreed with its 19th century counterpart: The Firearms Owners Protection Act passed in 1986 found that ”the rights of citizens to keep and bear arms under the Second Amendment to the Constitution” required additional legislation for their protection. An accompanying Senate Judiciary Committee report on the Second Amendment stated that ”what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

And in several cases – some quite recent – the Supreme Court has lumped the right to bear arms together with clearly personal rights like free speech.

Despite this, Ashcroft’s statement last summer that the Second Amendment protects this individual right was treated by some as a lurching departure from settled law. Actually, Ashcroft’s interpretation sits rather comfortably with the mass of opinion from other branches.

The chief opposition to the view that bearing arms is an individual right comes from gun control advocacy groups. I’ve never quite understood why gun control groups have felt it necessary to adopt an absolutist ”no-right-to-bear-arms” position when it is clear that the Second Amendment leaves sufficient room for reasonable regulation – that is, if regulation is really about preventing criminals from getting guns, not disarming ordinary citizens.

But such absolutism is one of the dynamics of our ongoing culture war – on the left as much as on the right.

Some critics of Ashcroft’s view have claimed that it conflicts with United States v. Miller, the 1939 Supreme Court case that is its only opinion directly addressing a Second Amendment argument in the past hundred years. Miller, we are told, makes clear that the Second Amendment protects only the National Guard.

There are two major problems with this argument. One is that Miller never mentions the National Guard. The other is that the only action actually taken in Miller was to remand the case back to the district court (which had previously held the National Firearms Act unconstitutional on Second Amendment grounds) for fact-finding on the issue of whether a sawed-off shotgun was the kind of weapon the Second Amendment protects.

Whatever Miller did, it did not endorse the National Guard theory.

The lower federal courts are a different story. The lower courts’ resistance to the view that bearing arms is a Second Amendment right has been widespread, and those criticizing Ashcroft’s position have been quick to point to these decisions as evidence that Ashcroft is somehow off the reservation. Yet on closer examination, the lower courts’ opinions are less persuasive.

In a recent article, professor Brannon Denning of Southern Illinois University Law School analyzed all the lower court decisions on the Second Amendment and concluded that ”lower courts have strayed … from the court’s original holding to the point of being intellectually dishonest.”

Many lower courts, in fact, have endorsed the National Guard theory. Of course, many of them also claim that Miller did the same, which it clearly did not, and to read these opinions is to see lower courts progressively and unashamedly moving the goalposts in order to ensure that – regardless of the arguments offered by counsel – no one could possibly succeed in a Second Amendment challenge. This line of cases is no great testament to the rule of law.

The US Court of Appeals for the Fifth Circuit agreed this last month when it essentially adopted Denning’s criticism of other lower court decisions and held that the Second Amendment does in fact protect an individual right.

On analysis, however, it appears to be the lower federal courts (except, now, for the Fifth Circuit) who are out of the mainstream on this issue. So are the gun control groups who so vigorously invoke the lower courts’ opinions to deny any possibility that the Second Amendment – which is, after all, one-10th of the Bill of Rights – does anything so uncouth as to create an enforceable constitutional right.

Glenn Harlan Reynolds is professor of law at the University of Tennessee and writes for the InstaPundit.Com Web site. This story ran on page D8 of the Boston Globe on 11/25/2001.
? Copyright 2001 Globe Newspaper Company.