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Dear Editors,
My name is Robert Bryan Haskins, and I am a prosecutor in Virginia. I have recently written in response to a "commentary" published by Bill Press of CNN, who laments the Department of Justice’s new individual rights interpretation of the Second Amendment. I would like to also submit it for your review. Please feel free to make whatever use of it which you deem proper.
Sincerely,
Robert Bryan Haskins
CAN THE SECOND AMENDMENT COME OUT TO PLAY?
I consider myself a news junkie. I watch TV, I read the newspaper, and I even surf the net for news. I thought I knew it all--until recently. It happened quite suddenly. I was surfing the web when I ran across a headline which boldly read: If you thought we still live in a democracy, forget it. Today, only one man makes the rules: dictator John Ashcroft--anointed and supported by King George. What's this? The downfall of democracy and the rise of a dictator in America? Do you mean that I have missed the single greatest news story of my time? Where have I been? As I nervously read on I realized that it was only an editorial lamenting the Attorney General's interpretation of the Second Amendment. OK, now I can relax.
The problem is, I didn't. The more I read, the more I began to see that liberal bias which permeates the "mainstream" media's portrayal of anything that has to do with the "right to keep and bear arms." This particular editorial was penned by the liberal columnist and CNN Cross Fire host, Mr. Bill Press.[i] Now I have seen him on TV, and while I do not share his views I have always respected his intellect. For this reason I quickly saw his eye catching headline for what it was; namely, a tongue-in-cheek exaggeration offered to make a point. A left turn off of reality boulevard, if you will, designed to start the reader thinking. The problem with the remainder of the editorial, however, is that his ideology caused him to get lost while on his detour, and he never made it back.
This is a common failure among those whose liberal ideology prohibits them from recognizing the existence of the Second Amendment. I have for years watched those in the media who call themselves liberals charge to the defense of their right to practice their profession in the First Amendment. I have similarly witnessed eloquent defenses of the individual rights guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. However, when the Second Amendment is mentioned, these defenders of constitutional liberty will blanch and fall silent. It is as if the Second Amendment were an ugly, deformed step-child hidden within their constitutional house, which should be kept locked in the basement lest it frighten any enlightened visitors. Should anyone actually see it, the embarrassing explanation is: "Well it's not really about a civil liberty. The Amendment does not protect an individual right. It only protects a 'collective' right of the states." A "collective" right? Have I fallen asleep in America to wake up on a state run farm in the old Soviet Union?
And now, from stage right, enters Attorney General John Ashcroft, with his singular ability to bring liberal blood to a boil. Mr. Press is not alone in his criticism of the Attorney General Liberal editorials have recently sprouted in the New York Times, the Atlanta Journal-Constitution, the Detroit Free Press, the Baltimore Sun, the Washington Post, the Christian Science Monitor, the Los Angeles Times, and Newsweek. Without exception these editorials have assaulted the Attorney General and his "individual right" interpretation of the Second Amendment. I have chosen Mr. Press' article merely because I feel that his comments are typical of these liberal editorializations.
He begins his assault on the Attorney General in this fashion: "Amazing! Twenty-nine years of going one way on guns, and one man decides it's time to make a U-turn. The fact is, Ashcroft is wrong on both policy and process." Here is where Mr. Press' ideology (and hatred for John Ashcroft, perhaps?) gets him into trouble. Although he does not state as much in his article, it is clear that Mr. Press believes the Second Amendment protects only the right of the states to maintain militias, and not an individual right to keep and bear arms. He continues his article with a shallow analysis of the amendment: "The wording of the Second Amendment is clear: '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'd have to reinvent the English language to make that sentences apply to individuals." (Error in original) Can he really mean that the phrase "the right of the people" does not apply to individual citizens? I certainly hope not. Anyway, it is Mr. Press who is "wrong on both policy and process."
Using the logic of classical Orwellian "doublethink," Mr. Press allows his ideology to act as a filter which prevents him from considering any argument which supports an individual right to keep and bear arms, however coherent they may be. For example (and contrary to Mr. Press' belief), a textual analysis of the Amendments in the Bill of Rights shows that the right to keep and bear arms was intended to be individual in nature. When James Madison drafted the Bill of Rights, he understood the principle that the state governments existed as a totally separate entity from the body of "the people." Consider for example the language of the Tenth Amendment, which states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This amendment clearly shows that Madison viewed the "States" as separate from "the People." If, therefore, the Second Amendment was enacted only to protect the right of the States to maintain a militia, then why does it read "the right of the people to keep and bear arms" as opposed to "the right of the States to keep and bear arms," or "the right of the States to possess arms for their militias?" Mr. Press' ideological blindness prevents him from considering, much less answering, this troublesome question.
Furthermore, Madison knew that the Constitution already contained [in Article I, Section 8] a "militia clause" which granted the states certain rights to control their militias. But instead of choosing to place the right within Article I, Section 8, he chose to place it separately within a body of individual liberties. Isn't it logical to conclude that the reason Madison placed the right to keep and bear arms within a host of other individual liberties is that he intended it to preserve an individual right? Again, no answer from Mr. Press.
Finally, no one can seriously claim that Madison is guilty of a typographical error, for the distinct phrase "the right of the people" is used in three different amendments in the Bill of Rights; and Madison clearly intended the phrase to guarantee an individual right each time it is used. For example, the First Amendment states "the right of the people peaceably to assemble. . . ." The Second Amendment states "the right of the people to keep and bear arms. . . ." The Fourth Amendment states "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." As the distinguished Constitutional scholar, Professor Nicholas J. Johnson, noted:
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Indeed, it is hardly credible to assume that the term "the People" was intended to protect the rights of private individuals to assemble peaceably and petition the government in the First Amendment, was somehow transformed in the Second into a right of states, and then miraculously was returned to a right of private individuals to be secure in their persons, houses, papers and effects in the Fourth Amendment.[ii]
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Wouldn't you "have to reinvent the English language to make that" leap of illogic?
Mr. Press' ideological/historical examination of the Second Amendment ended after he expressed his belief that you would have to reinvent the language to say the Second Amendment applies to individual citizens. Interestingly, I did not find a single quotation from a "founding father" within his article. Indeed, there are none which support his position that the amendment does not protect an individual right. Had he taken the time to look, however, he would have found several "framers" of our Constitution who spoke out about the right to keep and bear arms. The anti-federalists in particular demanded that the Constitution protect the individual citizen's right to keep and bear arms. Consider for example the following from Patrick Henry:
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Is it necessary for your liberty, that you should abandon those great rights by the adoption of this system? [namely, a Constitution without a Bill of Rights]. . . Will the abandonment of your most sacred rights tend to the security of your liberty?. . . .My great objection to this Government is, that it does not leave us the means of defending our rights; or, of waging war against tyrants. . . .The Honorable Gentleman who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves, are gone. . . . Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all?. . . . And how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your Mace-bearer be a match for a disciplined regiment? In what situation are we to be? . . . .What resistance could be made? The attempt would be madness.[iii]
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You may have already guessed Mr. Press' response to Patrick Henry: "Yes, that's all well and good, but what about the federalists?" Unfortunately for him, they do not offer him any help either. Consider, for example, the words of the great federalist, Noah Webster:
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Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.[iv]
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Additionally, consider what the actual author of the Second Amendment said:
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Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . .Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. . . .[And if the peoples of Europe were armed as the Americans are] the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.[v]
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Finally, Madison's good friend and federalist confidant, Tench Coxe, described the Second Amendment in these words when he published his Remarks on the First Part of the Amendments to the Federal Constitution:
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As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear private arms.[vi]
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Can Mr. Press answer these arguments for an armed citizenry? Well, perhaps he could say that the Second Amendment was only designed to apply to a limited class of citizens who were actively enrolled in a state militia and who bear their militia arms. Would such an interpretation divine the true intention of the "militia" preamble of the amendment? Consider the following statements from some of our founding fathers:
My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birth-right of an American ....[T]he unlimited power of the sword is not in the hands of either the federal or the state governments, but where I trust in God it will ever remain, in the hands of the People.--Tench Coxe[vii]
It has been asserted by the most respectable writers upon government, that a well-regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people. Tyrants have never placed any confidence on a militia composed of freemen.--John DeWitt[viii]
Whenever, therefore, the profession of arms becomes a distinct order in the state. . .the end of the social compact is defeated. . . .No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for defense of the state. . . .Such a well regulated militia, composed of freeholders, citizens and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.--M. T. Cicero (a pseudonym)[ix]
A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary. . . .the constitution ought to secure a genuine and guard against a select militia. . .and include. . .all men capable of bearing arms. . . .But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia. . . .[of the select militia] These Corps, not much unlike regular troops, well ever produce an inattention to the general militia. . .whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them. . . .The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.--Richard Henry Lee[x]
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Oh, that damned, uncomfortable history! How can Mr. Press answer this weight of historical evidence? Could he do so by quoting passages from Michael A. Bellesiles' book, Arming America: The Origins of a National Gun Culture? Probably not. It is doubtful even he would want to be associated now with an author who has been so discredited that he has been (accurately) referred to in one editorial as "the Milli Vanilli of the academic community." Therefore, and perhaps with the realization that the weight of history contradicts him, Mr. Press instead attempts to focus the debate on what he believes the United States Supreme Court feels about the Second Amendment. He makes mention of the case of United States v. Miller, 307 U.S. 174 (1939): "As the Supreme Court decreed in 1939, its last ruling on the issue, the Constitution clearly protects only gun ownership that bears 'some reasonable relationship to the preservation of efficiency of a well-regulated militia.'" Amazingly, he does correctly quote the case. However, it appears that he has not actually read it, and is instead relying on what some other gun control advocate has said about it. He certainly does not discuss the case further in his article.
Had he really read the case, he would have discovered a very different ruling. To begin with, the defendant (who was a bootlegger and not a militia member) had jumped bail and vanished before his case was heard before the Supreme Court. Also, no attorney appeared on his behalf. Therefore, the only party the Court heard from was the United States Government. Despite this one-sided presentation of the case, the Miller Court affirmed that the right to keep and bear arms exists. Regarding the militia, the Court stated the following:
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The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and the States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of a kind in common use at the time.[xi]
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The Court upheld Miller's conviction on the following grounds:
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In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has 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. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[xii]
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Miller clearly holds that the right to keep and bear arms exists. In a clear comment on the defendant's failure to appear and argue his case, the Court based its ruling on the defendant's failure to prove that the weapon had some military value. This in itself raises some troubling questions for Mr. Press. For example, does he believe that this opinion can be construed to suggest the Second Amendment would protect an individual's right to keep and bear a flamethrower or a grenade launcher? After all, these weapons are currently "part of the ordinary military equipment" and could easily "contribute to the common defense."
Furthermore, Miller is full of other hidden grains of truth which Mr. Press could have found had he actually read the case. For example, the Court cited with approval an earlier Tennessee Supreme Court decision which commented on the obvious advantage of the individual citizen's right to keep and bear arms: "If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights."[xiii] Additionally, one of the "writings of approved commentators" cited by the Court was former Supreme Court Justice Story's work in which he claimed that the right to keep and bear arms "has justly been considered, as the palladium of the liberties of a republic."[xiv]
OK, OK. So Mr. Press got it all wrong. How, then, do we really interpret the Second Amendment? To start with, we should be mindful of the following advice from Thomas Jefferson:
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On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed.[xv]
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When we view the Second Amendment in this light, it is becomes clear that it was adopted in recognition of two important principles. They may be described as follows:
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Whereas maintaining a standing army is dangerous to liberty, a well regulated militia, composed of all citizens capable of bearing their private arms, is the best method to provide for the security of a FREE state (ie. A state in which the people need not fear the ambitions of their own government); AND
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That every citizen is ensured an individual right to keep and bear arms; for this right provides the citizen with the ability to defend his life, his liberty, and his property from the "tyranny of irritated ministers" as well as providing him with the means to "discourage and keep the invader and the plunderer in awe."[xvi]
Therefore, the clause which states "[a] well regulated militia being necessary to the security of a free State" was never intended to limit the right to keep and bear private arms to only those persons who are enrolled in a state militia. Rather, it is preamble which states the universally held principle that "standing armies, in time of peace, should be avoided, as dangerous to liberty."[xvii]
In conclusion, let me say that none of what I have said here is new or novel. These ideas have been a part of American debate (in one form or another) for more that two hundred years. Distinguished scholars like Akhil Amar, Stephen Halbroke, and Nicholas Johnston (men who are preeminent in the field of Second Amendment law) have all come up with these arguments long before. The problem with liberals like Mr. Press is they refuse to even listen to these arguments. As soon as they realize that they are reading an article written by what they believe to be one of these "pro-gun nuts," they snap the book shut and refuse to read further. For them, this reaction is as sudden and instinctive as the dismissive snort you get from a horse who has just smelled what it thinks is bad hay. If, however, they would just set aside their liberal bias for a moment, then these media elites may actually realize that these arguments really do give that hideous Second Amendment a face lift. Please, guys, we are not asking for much. All we want is for you to let her out of the basement to play with the other civil liberties we also enjoy. After all, to quote a favored passage once cited by the man whom liberals affectionately refer to as "TJ":
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False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put and end to personal liberty--so dear to men, so dear to the enlightened legislator--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventative but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.--Thomas Jefferson (quoting 18th. century criminologist Cesare Beccaria)[xviii]
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Come on, Mr. Press. I know you like TJ. I have heard you quote him before. Why, if he were here today, he would say something to you like this: "Luke, I am your father. Let go of your blinding ideology for once. Come to the Dark Side of the Force. Join me and together we will rule the galaxy." Now how can you say no to that?
Sincerely,
Robert Bryan Haskins
http://home.earthlink.net/~haskman
[i]."Ashcroft Delivers for the NRA" @www.cnn.com/2002/ALLPOLITICS/05/09/Column.billpress/
[ii]. Nicholas J. Johnson, Shots Across No Man's Land: A Response to Handgun Control, Inc.'s, Richard Aborn, 22 Fordham Urb. L.J. 448 (1995).
[iii]. Patrick Henry, Speeches of June 5 and 7, 1788, before the Virginia Ratifying Convention, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates, pages 199-216, Mentor Books, 1986, edited by Ralph Ketchum.
[iv]. Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution of the United States (P. Ford, 1888).
[v]. James Madison, The Federalist Papers #46, reprinted at pages 294-300 in The Federalist Papers, Mentor Books, 1969, edited by Clinton Rossiter.
[vi]. Tench Coxe, Remarks on the First Part of the Amendments to the Federal Constitution. Published under the pseudonym, "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 Col. 1. (Emphasis added)
[vii]. Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788.
[viii]. John DeWitt, The Anti-Federalist Papers, p. 75 (M. Borden ed. 1965)
[ix]. M. T. Cicero (a pseudonym), Charleston State Gazette, September 8, 1788. [Emphasis added]
[x]. Richard Henry Lee, Additional Letters from the Federal Farmer, p. 169-170 (1788) [Emphasis added]
[xi]. Miller, 307 U.S. at 179.
[xii]. Id. at 178.
[xiii]. Id. at p. 178, citing Aymette v. State, 2 Hump. (21 Tenn.) 154, 158 (1840). Id. at p. 178.
[xiv]. The Miller Court is here citing to 3 J. Story, Commentaries o 1890, p. 746 (1833).
[xv]. Thomas Jefferson, The Complete Jefferson, p. 322 (1957) [Letter to William Johnson, June 12, 1823].
[xvi]. Quotes from The Declaration of the Causes and Necessity of Taking Up Arms, which may be found beginning at p. 286 in Sources Of Our Liberties, American Bar Foundation, Richard L. Perry, editor, revised edition (William S. Hein & Co. 1990), and from Thomas Paine, Thoughts on Defensive War, 1775. I Writings of Thomas Paine at 56 (1894).
[xvii]. Quote from the militia clause of the Constitution of the Commonwealth of Virginia. As a proud Son of Virginia, I am compelled to point out that this was the first State Constitution adopted in America. In fact, it actually pre-dated the Declaration of Independence.
[xviii]. Thomas Jefferson, Commonplace Book, 1774-1776, quoting 18th century criminologist Cesare Beccaria in On Crimes and Punishment, 1764. [Please note that John Adams also quoted Beccaria's analysis at the opening of the Boston Massacre trial. Also, please note that Beccaria's views on penal reform had a tremendous impact on the creation of the Eighth Amendment's ban on cruel and unusual punishments].
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