The Washington Times
Opinion
April 9, 1999Posted for educational purposes only.
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That every man be armed
By Kenneth Smith
It wasn't long after the Boston Tea Party that the British decided they better disarm those uppity American colonists to keep them from spilling blood rather than tea leaves. Parliament banned exports of muskets and ammunition to the colonies and sent British soldiers, led by General Gage, to seize their weapons and ammunition. The colonists rudely resisted this early brand of gun control and, at Lexington and Concord, used those weapons to express their displeasure.
This history lesson comes courtesy of a federal district judge in Lubbock, Texas, who this month cited these and other events in this country's past to arrive at the remarkable conclusion that the Second Amendment appears to mean what it says: that the Constitution gives individual Americans the right to keep and bear arms. Sorting through American jurisprudence and burgeoning Second Amendment literature in law journals, Judge Sam Cummings held that while the right is not absolute, it nonetheless exists and cannot be wished away, no matter how embarrassing it is to modern sensibilities.
Historical examination of the amendment, supported by analysis of its text, Mr. Cummings wrote, "bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right."
Mr. Cummings came to his conclusion after hearing the case of a Texas man named Timothy Joe Emerson involved in a divorce with his wife Sacha. She had obtained a temporary restraining order --which Mr. Cummings describes as essentially a form order frequently used in Texas divorce proceedings -- enjoining him from conducting certain kinds of financial transactions or from threatening or actually attacking her during the proceedings.
In what President Clinton and his supporters have forever dismissed as a he-said, she-said standoff, Mrs. Emerson claimed that during a phone conversation her husband threatened to kill a man with whom she was alleged to be having an affair. There was no evidence presented to support the claim, and the court made no findings. But the court issued the restraining order, and Mr. Emerson was later indicted for possession of a firearm while under a restraining order, a federal offense.
Mr. Emerson filed suit charging that the law violated, among other things, his Second Amendment rights. Government lawyers sought to dismiss the case on grounds that it is "well settled," that the amendment protects a state's rights to bear arms in, for example, National Guard units and not the rights of individual citizens to bear arms.
Almost from the beginning of his more than 30-page opinion, Mr. Cummings was skeptical of the government's case. If the Founding Fathers had meant to protect a state's rights, he said, the amendment should have read not: "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"; but instead: "the right of the States shall not be infringed." The plain language of the amendment, he wrote, shows the subordinate clause was meant not to qualify the right, but to show why the right must be protected. Besides the Supreme Court ruled a few years ago that the people cited in the Second Amendment are the same people --not states -- cited in the other amendment that make up the Bill of Rights.
This reading of the amendment is consistent with the historical record, Mr. Cummings said. As early as 690 A.D. Englishmen were required to possess arms and to serve in the military, and the English Bill of Rights codified the individual right to bear arms in 1689. This tradition informed the colonists own views. Mr. Cummings took note of a 1640 Virginia statute that required all "masters of families to furnish themselves and all those of their families which shall be capable of arms . . . with arms both offensive and defensive."
Without that right, wrote Mr. Cummings, the colonists never could have won the Revolutionary War. When they drew up the U.S. Constitution, they wanted that right in there to protect them from political corruption and governmental tyranny. James Monroe proposed the right to keep and bear arms be treated as a basic human right and included in the Constitution. Writing in Federalist No. 46, James Madison mocked European despotisms he described as "afraid to trust the people with arms." Said Patrick Henry, "The great object is that every man be armed . . . [e]veryone who is able may have a gun."
Samuel Adams argued that the Constitution "be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." When it came time to take up the Bill of Rights, the Senate turned down a motion to add the phrase "for the common defense" after the words "to keep and bear arms."
In his Commentaries on the Constitution, Joseph Story wrote, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
Is it possible that, whatever the views of the Framers, enforcement of the Second Amendment would be imprudent because the social costs of doing so would be too high? There is, after all, plenty of murder and mayhem in this society without allowing everyone to arm himself. But there are social costs to other amendments protecting the likes of free speech (racial vitriol) and the rights of criminal defendants (allowing criminals to go free).
The same people now posing a cost-benefit of analysis of the Second Amendment, said Mr. Cummings, wouldn't dream of applying it to the rest of the Bill of Rights. He quotes approvingly the remarks of Justice Antonin Scalia that while Americans may now tolerate the elimination of the right to bear arms, no one should pretend that it is not a reduction of rights.
The right to bear arms is not unequivocal. Felons don't enjoy it because criminal conduct has put them outside the class of law-abiding citizens who enjoy full civil rights. But the statute under which Mr. Emerson was indicted means that someone can lose his Second Amendment rights not because he has committed some wrong in the past, said Mr. Cummings, but merely because he is involved in a divorce proceeding. "It is absurd," he said, "that a boilerplate state court divorce can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights."
The Supreme Court has not had much to say about Second Amendment rights in recent years. So this case may be the test for which advocates on both sides of the issue have been looking. Gun-control supporters are confident higher courts will side with them. If they do, according to Mr. Cummings, they will have to overturn centuries of English and American jurisprudence, to say nothing of Monroe, Henry and Madison.