Second Amendment: Kopel Defends Individualist View

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Second Amendment:
Kopel Defends Individualist View

by Ari Armstrong, May 8, 2000

Does the Second Amendment guarantee an individual right to keep and bear arms? Does it matter? Three lawyers debated the matter during the afternoon of Friday, May 5. David Kopel, a legal scholar with the Independence Institute, took the pro-individualist view. Robert Hardaway of the University of Denver argued that the Second Amendment does not protect an individual right, though limited gun ownership might be protected on public policy grounds. Ruchi Bhowmik of the Center to Prevent Handgun Violence said the Second Amendment allows extensive gun restriction laws.

James Winchester of the Colorado State Shooting Association was scheduled to join the discussion but was unable to attend.

An Individual Right?

Kopel began by reviewing the 43 state constitutions which explicitly guarantee an individual right to bear arms. However, while the Colorado Constitution provides a strongly worded defense of individual civil arms rights, the state Supreme Court in recent years has adopted as its operative rule "the government wins almost all the time," noted Kopel, which means the Court has upheld municipal laws which would seem to contradict the language of the Constitution. The state Constitution reads:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

If the Second Amendment is only supposed to restrict federal usurpation of state militias, several states are terribly confused on the matter, for Hawaii, Alaska, and North Carolina copied the language of the Second Amendment into their respective state constitutions. It would seem that those who wrote the constitutions of those states believed the language of the Second Amendment means more than that the federal government cannot limit state militias. The courts of those states have held that the language copied from the Second Amendment guarantees an individual right.

To this point made by Kopel, Hardaway replied that the states won't necessarily interpret the language the same way as federal courts will interpret the Second Amendment. Hardaway thus revealed a strain of legal relativism. Later he wondered if the Second Amendment has been rewritten in the 20th Century. "To a certain extent, it's true," he concluded.

An important argument made both by Hardaway and Bhowmik is that "not one word was said at the Constitutional Convention about an individual right to bear arms," as Hardaway put it. The Founders were concerned primarily about a standing federal army. However, this is not surprising, since the purpose of the federal constitution was to delimit the powers of the federal government. For the Founders, the states were the fundamental governmental units. Hardaway's suggestion that the lack of discussion at the convention about individual rights to bear arms implies that the Founders didn't advocate such rights is a non sequitur. Another conclusion is more plausible: the Founders saw state militias as the main defense against the threat of a standing federal army and so focused on buttressing that defense during the debates.

The Founders did, after all, claim "the right of the people," a phrase used also in the First, Fourth, Ninth, and Tenth Amendments to describe individual rights. Hardaway and Bhowmik seem to think the Founders were idiots. Instead of referring to several state militias, they accidentally referred to "a well regulated militia," which implies a group composed of members of the several states. What the Founders really meant to write, according to Hardaway and Bhowmik, is that "well regulated state militias being necessary to the security of a free state, the right of state governments to supply arms to the people shall not be infringed." But the Founders were just too dumb to come up with such language; hence, they screwed up and referred to a general militia and to "the right of the people to keep and bear arms." It's a wonder the United States ever got off the ground under the guidance of such imbeciles.

However, the Founders were fond of quoting Cesare Beccaria concerning the usefulness of guns in self-defense. Thomas Jefferson encouraged his friends to keep a gun as a "constant companion," not only during militia exercises.

As Libertarian Presidential candidate Harry Browne has pointed out, echoing the views of 19th Century legal scholars, even absent the Second Amendment the federal government has no authority to pass any law pertaining to firearms. The Federalists argued that the federal government had power only in those areas explicitly outlined in the Constitution, a view reiterated in the Tenth Amendment: "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." The Ninth Amendment adds, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The Founders clearly advocated the right of self-defense with a firearm. The Founders also believed in the right to defy tyrannical government, for the Declaration of Independence states: "[W]henever any Form of Government becomes destructive of these Ends [of Life, Liberty, and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it."

Kopel argued that the Fourteenth Amendment was passed in part to prevent states from disarming black people. Thus, arguably that Amendment prevents states as well as the federal government from infringing the individual right to bear arms.

During the question period, I asked the speakers their views of the Federalist argument for the strict delimitation of federal powers. Bhowmik gave the common answer: the commerce clause gives the federal government authority to regulate practically everything. Yet obviously this was not the intent of the Founders; otherwise the Constitution could have been shortened considerably, reduced to a few lines including, "Congress may pass whatever laws it wishes." Indeed, as Justice Clarence Thomas observed in his U.S. v. Lopez opinion, "[O]ur case law has drifted far from the original understanding of the Commerce Clause."

Yet Hardaway is not so interested in original intent. In the last half of the 20th Century, many federal courts have ruled that the Second Amendment protects no individual right. Kopel was quick to point out that courts throughout the 19th Century were virtually unanimous that the Second Amendment does protect an individual right, and it is only in recent decades that federal courts have begun to reverse this legal history.

An argument Hardaway used frequently is that, if the Second Amendment is really about suppressing government tyranny, then it logically entails the right to keep and bear tanks and suitcase nuclear bombs, for such instruments would be useful in defending against the federal government.

However, this attempted reductio ad absurdum simply doesn't hold water. As Kopel noted, the militia was widely regarded as pertaining to the infantry, and the arms controlled by individual militia members were small arms. Beyond this point of definitions, the Founders reasonably intended "the people" to keep small arms and governmental units to control weapons of mass destruction. Even today libertarian theorists differentiate between small arms, which can be used with precision and discrimination, and weapons which must necessarily kill indiscriminately.

But surely the Founders never intended the Second Amendment to be a defense against federal tyranny, argued Hardaway, for the Constitution explicitly provides for the punishment of "treason." Article III, Section 3 states, "Treason against the United States, shall consist in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.... The Congress shall have Power to declare the Punishment of Treason..."

However, obviously the Founders did not hold the view that any military action taken against a tyrant is illegitimate simply because the tyrant believes it to be so. Many of these same men actively broke English law in committing "treason" against the English throne, and they justified their actions in the Declaration of Independence. Thus, "treason" must fall in a different category than justified revolution. While this remains a sticky issue, clearly the Article III provision has no bearing on whether the Second Amendment was intended to provide a defense against tyranny. Kopel argued that the Founders wanted to guard against threats "from above and from below:" that is, from unlawful citizens as well as from unlawful government. The Founders saw the militia as essential for protection on both fronts.

Hardaway and Bhowmik argued with Kopel over several historical points. Hardaway pushed the interpretation of the 1939 Miller case that the Supreme Court ruled the only arms protected by the Second Amendment are those used during militia exercises. Kopel agreed that the Miller opinion is ambiguous, but that given the context of the Court's ruling a different interpretation is more plausible: only arms with military application are protected. Thus, shotguns useful only for duck hunting would not fall under Second Amendment protection. The Court agreed that, if Miller's sawed-off shotgun could not be shown to have military application, then the federal government was not restricted by the Second Amendment from regulating or prohibiting such a shotgun. However, Kopel was quick to add, Miller skipped town, so no trial was ever held to discover whether the shotgun had actual military use -- many historians argue that it does now and did at the time. Of course, whether or not the Second Amendment applies only to military-style guns, the Ninth Amendment might reasonably be held to protect ownership of other types of guns.

Bhowmik suggested that the "rag tag" militia was actually a bane to George Washington during the Revolutionary War. Kopel said such historical revisionism is the product of those with "a hatred for guns." George Washington complained about militia members' penchant for returning home, but he clearly relied upon the militia in his military struggle.

Hardaway suggested that the Nazis used available guns to terrorize their way into power. Kopel countered that the Nazis won power in a popular election, and that the Nazis succeeded in disarming their political opponents by using laws passed during the Weimar Republic.

The organizer of the discussion, Kenneth M. Koprowicz of the Bill of Rights Committee and the Colorado Bar Association, described the event as "addressing the issue of whether the Second Amendment to the U.S. Constitution and the Colorado counterpart... create individual or militia/collective rights to keep and possess arms." But it depends on what your definition of "create," is. In the last few decades, federal courts have ruled against the individualist view. However, through the 19th Century, the courts ruled favorably toward an individual right. If one takes a literalist view or looks to original intent, the Second Amendment describes an individual right; but legal relativism or constructivism may lead to the opposite conclusion.

Does It Matter?

Hardaway said he owns guns and commented, "I'm against irresponsible gun legislation and confiscation." He argued that civil arms advocates ought not "put all their eggs" in the Second Amendment basket, because the Supreme Court is sure to rule decisively that the Second Amendment does not protect an individual right. Such a decision would "open the floodgates" to disarmament laws, he said. Thus, "I'd like to see, not us talking about the Second Amendment, but about public policy." If individuals are to retain the ability to own civil arms, it will be because pro-gun groups win the public policy debate.

Bhowmik argued that the Second Amendment does not protect an individual right, be she quickly added that "it doesn't matter" whether it pertains to an individual or a collective right, because in either case the Second Amendment is "not absolute." To this point Kopel replied that the non-absolutist nature of the Second Amendment (as well as the First) in no way implies that anything goes: gun restrictions must still pass strict tests of Constitutionality. However, Bhowmik's point was that Constitutional matters should take a back-seat to policy concerns.

In a May 9 article in the Rocky Mountain News, Paul Campos of the University of Colorado, who moderated the discussion, described the Constitution as "a document whose symbolic hold on us seems unaffected by its legal and political irrelevance." In unusually blunt and lucid prose, Campos expounded:

Almost since the Republic's inception the nation's greatest statesmen have tactfully ignored large sections of the Constitution. Indeed, what the framers considered to be the single most important principle of their whole scheme -- that the federal government should be restricted to exercising a limited set of enumerated powers -- is as dead as Jacob Marley, and has been for interred for nearly as long. The bulk of what is called constitutional law is something whose only connection to the Constitution is that judges referred to that venerable text in the process of inventing it.

I.e., the "rule of law" is a myth. Government is, always was, and always will be rule by select people.

However, surely Campos goes too far. A fairly strong argument can be made on behalf of following the law at least to a noticeable extent, so as to maintain expectations of order. Surely disarmament activists would do better to call for the repeal of the Second Amendment than to skirt it.

And there's another reason for Constitutional discussions. Propositions about Constitutional law necessarily turn to discussions about the values and beliefs of those who wrote the Constitution and those who have interpreted it. Thus, in studying Constitutional issues, one must necessarily grapple with philosophical precepts. I agree that the civil arms discussion will necessarily focus around policy concerns, but Constitutional issues are not distinct from such concerns. Indeed, the original intent of the Second Amendment is crucial to grasp in order to make a reasoned judgment about modern public policy. The Founders' reasons for including the Second Amendment should be considered, as they bear upon modern concerns.

A Policy Debate: Bring It On

Bhowmik said "the discussion has to be focused" on policy issues. Yet during the course of her talk she gave not a single example of why gun restriction laws make for good public policy.

Sure, she blithely referred to such measures as mandatory locks and stiff trigger pulls as "safety measures" and she called for "simple, common-sense safety standards." Yet she utterly failed to address such "common-sense" issues as whether a safety lock will empower criminals by reducing the usefulness of guns for self-defense. She indicated that stiff trigger pulls are "safe," even though they make a gun more difficult to shoot accurately, especially for women. Bhowmik admitted she's ignorant about guns and doesn't know how safety locks function. Unfortunately, a proposal does not become "common-sense" or "safe" merely by the repetition of those phrases.

Similarly, Hardaway claimed to be interested public policy issues, yet he too expressed an utter disregard for sound policy. In a paper he distributed at the talk entitled "Militias, Arms, and the Second Amendment: What the Framers Really Intended," Hardaway cites such discredited claims as Arthur Kellerman's "study" which allegedly "reveals that for every person who claims use of a gun for self-defense, 43 people die from gun accidents, suicides, and unintentional killings." That's a flagrant fabrication. Even Kellerman admitted his "study" included only cases of self-defense that resulted in death, even though most (about 98%) of the defensive uses of guns don't even involve firing a shot. The criminal is merely frightened away. Most of the other deaths Kellerman counts are suicides, even though gun availability is not correlated to the suicide rate. (In Japan, the suicide rate is about double the rate in America, though most people kill themselves in ways not involving a gun.)

Hardaway makes up another false claim: "After the Columbine tragedy, some even claimed that if all the teachers and children had just been armed with automatic weapons, they could have defended themselves." However, nobody suggested teachers should carry "automatic weapons," but rather semi-automatic handguns. Practically everyone who spoke to the issue suggested that only some teachers (not all) -- and not students -- be armed after suitable training. Yet Hardaway dismisses this demonstrably effective option with the vacuous statement, "[I]f guns were not so widely available, ordinary citizens would not need guns for self-defense." This claim is false because when citizens are disarmed criminals commit more crimes, both with guns and with more primitive weaponry. Hardaway's claim is also utopian in that it assumes a prohibition law would be effective at disarming criminals.

Hardaway cites, "A recent study by Interpol revealed that the U.S. has 35 times the number of handgun homicides per 100,000 population than countries with strict gun laws." However, the relevant number is not gun homicides but all homicides, since criminals can easily substitute other weapons and civil arms deter many crimes. Countries like Israel and Switzerland have more guns per capita and a lower crime rate than the U.S., whereas countries such as Russia and Brazil have severe gun restriction laws and high homicide rates. But of course correlation does not prove causation: there's no evidence that the gun laws in various countries have reduced the crime rates. Indeed, there's substantial evidence that disarmament laws in America have increased the crime rate (as John Lott shows in More Guns, Less Crime). Hardaway is so careless with his crime statistics one is tempted to wonder if he is equally careless with his other claims.

So both Bhowmik and Hardaway called for a public policy debate, yet each made policy-oriented comments that were ignorant at best and intellectually dishonest at worst. Perhaps they should take their own advice and get serious about the public policy implications of gun restriction laws.

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