'Legal Community Against Violence' and the Second Amendment
by Ari Armstrong, March 28, 2000
In her exuberance in reporting the fact that -- surprise, surprise -- some lawyers and historians believe the Second Amendment permits the extensive regulation of firearms, Carla Crowder botches a number of important points in her March 28 Rocky Mountain News article on the subject (http://insidedenver.com/news/0328seco2.shtml).
The impetus of Crowder's article was a letter circulated by the San Francisco group Legal Community Against Violence signed by 47 scholars. LCAV supports allegedly "reasonable" gun restrictions such as mandatory storage laws and background checks. The letter reads:
But the law is well-settled that the Second Amendment permits broad and intensive regulation of firearms, including laws that ban certain types of weapons, require safety devices on others, mandate registration and licensing and otherwise impose strict regulatory oversight of the firearms industry. (http://www.lcav.org/letter.html)
Crowder wrongly implied that those who signed the LCAV letter agree that the Second Amendment fails to protect an individual right to keep and bear arms. She wrote:
[M]any people believe the Second Amendment guarantees individuals the right to bear arms. But they are forgetting the first clause, "A well-regulated Militia, being necessary to the security of a free State," said LCAV Director Sayre Weaver. In hundreds of federal cases this century, courts have ruled that the amendment does not protect individuals who want guns. Instead, it allows states to keep militias to protect against federal power. The only time the U.S. Supreme Court has ruled on the matter was the 1939 case United States vs. Miller. The court found that Miller's sawed-off shotgun had nothing to do with militia participation. He had no right to the weapon.
However, the LCAV letter states explicitly that "academic views differ regarding whether the Second Amendment does more than protect the state militia from being disarmed by federal law." In other words, some signers believe the Second Amendment guarantees an individual right.
Additional literature available at LCAV's web site discusses a recent district court decision that agrees the Second Amendment guarantees an individual right, even though the group believes that decision to be in error. The web page also makes clear that at least two signers of the letter believe the Second Amendment outlines at least limited individual rights:
In April 1999, U.S. District Judge Sam R. Cummings dismissed the criminal indictment against [Timothy Joe] Emerson, becoming the first federal trial court judge in 60 years to rule that the Second Amendment guarantees an individual's right to keep and bear arms...
A distinction that Crowder never makes clear is that, if the Second Amendment is seen as guaranteeing individual rights, that still doesn't indicate the extent to which that right may be regulated. Obviously, that's a point of contention. Tribe and Amar believe the individual right to keep and bear arms may be heavily regulated, but many other constitutional scholars disagree. Crowder writes:
Constitutional rights are not absolute, the group of scholars said, but subject to the need to protect public safety. For example, libel and slander laws limit First Amendment rights to free speech. Yet, gun-rights advocates such as the NRA try to shield guns from further regulation by citing the Second Amendment, as if alone -- among all rights -- it is immune from restrictions.
However, neither the NRA nor any other party believes the right to keep and bear arms is "absolute" in the context Crowder implies. For instance, everybody grants that the violent use of guns should be outlawed. Everybody agrees that violent felons should be disarmed for at least some time. Nearly everyone agrees that only "small arms," rather than tanks or missile launchers, are protected for individual use. So Crowder misrepresents the views of the NRA and other "gun-rights advocates."
Crowder's analogy to libel and slander laws simply doesn't carry the water she hopes. Libel is an inherently inappropriate, mis-use of speech. Similarly, the inherent mis-use of guns is already illegal, and everyone agrees that's appropriate. However, the potential for libel or slander does not justify "prior restraint" on citizens who choose to exercise their rights of free speech. For example, people don't have to submit to background checks before they can publish an article. Rather, libel and slander are punished entirely after the fact. Similarly, the Second Amendment, if it guarantees an individual right (a point I see as obvious), ought not be infringed by the passage of "prior restraint" laws restricting the behavior of law-abiding citizens. Rather, as with the First Amendment and speech, the Second properly allows only laws which punish the criminal mis-use of a firearm.
Crowder simply misrepresents the import of the 1939 Miller case. The Supreme Court did NOT find that the right to keep and bear arms is not an individual right; rather, the Court decided that arms not suitable for military use are not covered under the individual right described by the Second Amendment. Indeed, the Court expressly stated that "the Militia comprised all males physically capable of acting in concert for the common defense." It is also worth noting that the defense (Miller) skipped town, so the Supreme Court never heard arguments proving that Miller's shotgun had potential military use.
LCAV never argues against the point that, by intent, the Second Amendment was originally a protection of individual rights. As legal scholars Stephen Halbrook, David Kopel, and others have found, courts were practically unanimous until the early 1900s that the Second Amendment protects individual rights. LCAV explicitly denies the importance of original intent, implying a broad role for legal revisionism and judicial activism. The group's web page claims:
The Second Amendment, as interpreted by the Supreme Court and our federal appellate courts, clearly does not give individuals the right to possess firearms. Scholars, of course, often speculate as to how future courts might modify their interpretations of constitutional provisions, and the Second Amendment has recently been the subject of much scholarly debate. (http://www.lcav.org/secamm.html)
That first sentence is in question. Anyway, why should we look only to the past 60 years for legal precedent? The Bill of Rights was passed in 1791, at a time when the militia was clearly understood to include all able-bodied males (today we might include men and women). Should we ignore 120 years of a literal interpretation of "the people" in the Second Amendment, on par with the use of that phrase in the First, Fourth, Ninth, and Tenth Amendments? I know legal relativism is all the rage now in some circles, but I favor a return to the era of legal literalism that came to a close with Roosevelt's politicized Court.
Fortunately, Crowder quoted Halbrook to close her article. He said, "Look at the debates of historical records. All the persons who commented on [the] meaning of the Second Amendment said it was an individual right."
The LCAV has not supported its claim that the Second Amendment is not about individual rights, or even its claim that the Second Amendment admits "prior restraint" laws restricting gun owners. But even beyond the Constitutional issue is the question of whether the laws are good or bad in terms of public safety. Even if it's decided that the Second Amendment admits many restrictions, or even if it's decided that amendment doesn't apply to individuals, that still doesn't imply that gun restriction laws are a good idea.
Most gun restriction laws make it more difficult and more expensive to keep and bear arms for self-defense. Hence, such laws often empower criminals by reducing the use of firearms for self-defense. For instance, as John Lott recently found, mandatory storage laws actually increased crime because they made guns less accessible for self-defense. LCAV claims to advocate "reasonable" gun control laws, yet nowhere have they made a reasonable case in support of those laws. Instead, the group repeats tired pseudo-scientific statistics. For instance, the group claims:
Guns cause the death of approximately 12 children in this country each day. The overall firearm-related death rate among children under the age of 15 is nearly 12 times higher than among children in 25 other industrialized countries combined. (http://www.lcav.org/problem.html)
That's an outright deception. The "12 children each day" statistic includes mostly gangsters ages 15-19 who kill each other. Obviously, that's not the fault of the guns. The comparison with "other industrialized countries" is selective and it ignores differences in population sizes. Countries like Russia and Brazil are ignored, and those countries have high crime rates and severe gun restriction laws. On the other hand, countries like Israel and Switzerland have much higher gun ownership per capita than the United States, but they also have much lower crime rates per capita. The LCAV page continues:
In 1996, handguns were used to murder 2 people in New Zealand, 15 in Japan, 30 in Great Britain, 106 in Canada, 213 in Germany and 9,390 in the United States.
Again, this ignores countries like Russia, Brazil, Switzerland, and Israel, as well as population sizes. In addition, countries like Japan had low murder rates both before and after their harsh gun laws, so it's not at all obvious that new gun restriction laws would reduce crime in America (and there's some evidence suggesting such laws would increase crime).
The fact that LCAV is so careless with its use of crime statistics raises the question of whether the group is equally careless with some of its legal claims. Certainly the group has not made its case for new gun restriction laws in the United States.
To close with a personal note and a touch of humor: it seems I've been spending a lot of time lately writing about Carla Crowder's articles. We could avoid that altogether if Ms. Crowder would simply agree to let me review and revise her articles before they reach print. Then I could simply link her articles on my web page, rather than write separate articles correcting her errors. Seriously, she does a fairly good job, and I look forward to reading her articles -- and replying to them.