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Right to Bear Arms

May 8, 2002 at 12:00 AM EST
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RAY SUAREZ: In recent decades, no part of our Constitution has been as hotly contested as the meaning of the Second Amendment. What did the Framers intend when they wrote: “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.”? For decades the federal government position has been that the Second Amendment guarantees a collective right to guns, rights subject to state regulation.

This week, Solicitor General Theodore Olson told the Supreme Court that the Bush Administration believes otherwise, that the amendment guarantees individuals the right to bear arms. In two briefs filed before the Court Monday Olson wrote: “…The current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.”

We debate this shift to widen the rights to own guns now with four Constitutional and legal scholars. Robert Cottrol is a Professor of Law at George Washington University. Jack Rakove is Professor of History and American Studies at Stanford University. Saul Cornell is a Professor of History at Ohio State University. And Joyce Malcolm is a Professor of History at Bentley College in Waltham, Massachusetts.

Robert Cottrol, why is Ted Olson involved? What in the appeal of a particular case brought the Solicitor General’s Office forward to file briefs?

ROBERT COTTROL: Well, the Justice Department is charged with enforcing the law, which includes defending the constitutionality of federal statutes. You have the Emerson case in the 5th circuit where the 5th Circuit Court of Appeals ruled that although the second amount is an individual right, that it is nonetheless reasonable regulation to prevent individuals who are under a restraining order because of domestic violence issues from owning guns. Dr. Emerson, who was the defendant in the case, is appealing that to the Supreme Court and it is, of course, up to the federal government to defend the statute.

The position of this Administration is that of the 5th Circuit, namely that the law is constitutional, because although this Administration supports the individual rights view of the Second Amendment, that there is an individual right to keep and bear arms, it sees the statute as reasonable regulation. So this is within the normal processes of the Justice Department defending a federal statute.

RAY SUAREZ: Saul Cornell, was Theodore Olson staking out new territory or just explaining where the federal government stands in 2002?

SAUL CORNELL: Well, I think that the general sense is that what Olson has done is to depart from what was standard policy really going back to the Great Depression. And I think nobody questions the right of the government to change its direction, but I think people were a little surprised that Olson didn’t deal with the controlling precedent Miller and that he didn’t go through the normal kinds of deliberations within the Office of the Solicitor General to figure out what the policy implications from such a radical departure from existing policy would be.

RAY SUAREZ: Well, Joyce Malcolm, what are the implications if, in effect, the lawyer for the Executive Branch is saying, well, we’re not so sure we agree with the controlling precedent in this case? Is it a big deal?

JOYCE MALCOLM: It’s a very big deal. It’s bringing us back to the original interpretation of the amendment, which has been lost through misunderstandings and rather awkward language of the amendment. It’s really important, and it reflects 25 years of intense scholarship into the original meaning of the amendment by historians and lawyers and now by judges.

RAY SUAREZ: And what are the possible results here? I mean, the Solicitor General, the Attorney General, they don’t make law in this case. Still other things have to happen, don’t they?

JOYCE MALCOLM: Yes, they do. But the Administrations in the past have been very active in following through on their particular point of view on guns and whether there is an individual right to have them or not. The Clinton Administration helped encourage different municipalities to sue gun manufacturers, to make sure that guns were prohibited in public housing and to pass serious restrictions on gun control and on people’s rights to have them.

RAY SUAREZ: Jack Rakove, let’s bring you in here. Is this a significant step in clarifying whether this controlling precedent, this Miller case, is still what binds the law of the land?

JACK RAKOVE: I think it’s significance remains to be determined by the lower courts. What the Solicitor General did essentially was to insert a footnote into his brief endorsing a long passages in the opinion of two of the judges in the three-judge panel in the Fifth Circuit case, which in effect went out of their way to endorse the so-called individual right interpretation of the Second Amendment.

But the pronouncement in the lower court’s decision in a certain sense is very much like general Olson’s footnote in his brief seems to be classical obiter dictum… a legal pronouncement, which actually bears little relationship to how the court is actually ruling. So the lower court went out of its way to endorse the position that the NRA and conservative scholars and supporters of the individual right interpretation have been arguing as Joyce noted for some time. But it’s not clear what the legal consequences will be because it’s not clear on what basis the lower courts will rule and it’s far from clear that the Supreme Court will want to hear these two cases and indeed that General Olson, Solicitor General Olson in his brief strongly suggests that the Supreme Court should not take these cases.

So I think there has been a lot of interest in a lot of quarters in the possibility that the Miller decision of 1939 might be reviewed and possibly overturned, but the Court has yet to take these cases under its wing, and so I think the legal future remains interesting but still very cloudy.

ROBERT COTTROL: Mr. Suarez, if I might correct a misimpression that I think has been going around the table since we started, it’s about the Miller case. The Miller case is not a case that stands for the proposition that the Second Amendment only protects the right of states to maintain militias. I think if you read the Miller case carefully, it stands for the proposition that some types of firearms are protected, those which are useful for the common defense, but which nonetheless individuals may possess, and that right is protected to own those types of weapons, as distinguished from what were called gangster weapons or weapons not suitable for the common defense but only suitable… only suitable, in fact, for use by criminals as such.

I think it’s a distortion of Miller, quite frankly, to say that that case, which was decided in 1939 and which by the way was an ex-parte case, only the government was heard in the Miller case, that the Miller case represents the co-active rights position. Indeed one of the principal Justices or one of the Justices who decided the Miller case, Justice Hugo Black was a strong supporter of the notion of the individual right to bear arms and he voted for the Miller decision.

RAY SUAREZ: Saul Cornell?

SAUL CORNELL: Well, I think Bob’s point is that there has been some recent legal scholarship. Bob is one of those people doing that kind of scholarship. There are others who have questioned the dominant interpretation of Miller. People are now questioning it. But I think what is so surprising is that that debate has mostly been going on in academic law review scholarship and it sort of surprising is an issue where there is so much contestation where the legal scholarship is divided and the historical scholarship is divided to see the Solicitor General and the Attorney General jump in before the issue has really sorted itself out.

RAY SUAREZ: Is this a fight that really goes back to the way the amendment is worded in the first place? You start off with that part about a militia and it’s that it be necessary to be well regulated for the protection of a free state and then you go to that statement of rights to bear arms? Joyce Malcolm, is part of the fight that’s kept so many people so busy for so long just in the way that this was written in the first place?

JOYCE MALCOLM: I think that’s correct. It’s a very kind of badly drafted amendment. There was a real effort to try to make these amendments as concise as possible. And I think that a lot of the difficulty with interpretation has come from the awkward drafting, particularly once people really wanted to be able to control the access to weapons of groups that they felt were dangerous. So that you don’t really get questioning of an individual right until the beginning of the 20th century when there is a lot of concern about people… great numbers of immigrants coming into the North and of blacks in the South being armed. But I think that you’re right quite, the drafting was not well done. That’s why the scholarship is so important to really be sure of what was intended.

RAY SUAREZ: Given the way the amendment is written, Professor Malcolm, why do you conclude that the second part of it about an individual’s right or the people’s right is more important than the first part of it, the well regulated militia part?

JOYCE MALCOLM: The second part of it is what it genuinely is protecting. It’s what actually is protected there. It’s the right of the people. If it meant the right of the militia to keep and bear arms, they could have said the right of the militia. The militia is mentioned as one of the reasons why it’s necessary for individuals to have weapons, and I should say that the militia that the founders and framers were talking about and the way that they define the militia was that all men… all white men, I should say at that point, who were able to be armed were considered to be part of the militia. It was virtually the entire male population.

RAY SUAREZ: Jack Rakove, why don’t you jump in. I understand your conclusion about what that amendment means is different from Professor Malcolm’s.

JACK RAKOVE: As Joyce well knows, we’ve reached different conclusions on this. There are a couple main issues here. Joyce suggests that the militia was carelessly drafted. But you can make an equally telling argument that the amendment was carefully drafted.

One of the key changes that takes place in the progress of the amendment from the House of Representatives to the Senate in August 1789 is the deletion of the key phrase that would have had the amendment read “militia, comma, composed of the body of the people.” And if that really is how the militia was to be defined, then the argument that it really does embrace a broad individual right of the kind that Joyce was just alluding to would be more persuasive.

The problem with this argument is that we know a… we don’t know much about what the Senate said because the Senate’s debates in 1789 were not recorded but we do know a lot about who was sitting in the upper House of the United States Congress in the first session of the first Congress. That was a body that was packed by federalists. It was packed by people like Philip Skyler, a prominent Revolutionary General, and Rufus King, who had debated the militia question extensively at the federal convention back in 1787. And these were people who were quite skeptical and downright critical of the idea that a militia composed of the whole body of the people would be a sound or necessary element of national defense policy after 1789.

So that far from saying that the amendment was being carelessly drafted, you can make up an equally telling and I would argue more persuasive story, which says that the Senate wanted to limit the restrictive power of the Second Amendment. They wanted to get rid of the idea that the militia should necessarily for all time be equated with the whole body of the people. And they took the necessary step by deleting that key phrase composed of the body of the people to attain that end.

RAY SUAREZ: Now Professor Cottrol, why is it so important to go back to the 17th century, to the 18th century, to understand these different theories of what they were getting at originally when they met to write this document?

ROBERT COTTROL: Well, let me suggest what’s happening. We want to know what the framers meant. And, by the way, I don’t see this ambiguity that others seem to see in the language. If we look at the 18th Century commentaries and the 19th Century commentaries on the Second Amendment, uniformly it’s looked at in terms of a right of individuals to keep and bear arms. It’s not looked at as a right of states.

I think as Joyce Malcolm said, that this is really a 20th century invention in part designed to facilitate the notion of gun control. What I think is important about history is because we want to understand the original intent, because part of what I think is being done here is in effect a nullification of the part… of a part of the Constitution — basically taking a part of the Constitution and essentially saying it doesn’t fit modern needs and therefore we’re going to reread the history, reread the language and have it say something other than it did.

Now, I think we should be having a different Second Amendment debate. As opposed to this debate, which I think is really an artifact of our 20th century gun-control politics, perhaps we should be having a debate over whether or not the Second Amendment should be repealed. Should it be repealed? Is it an 18th Century anachronism unsuited to the 21st century? That would be an honest debate I think but I think the historical evidence for this idea that it was simply the militia that was being protected is not there if you look at the sources. Let me also say this about the federalists, if I might. The federalists are not opposed to this notion of a universal militia with their own arms. Even Hamilton, the arch federalist, endorses this idea. He doesn’t think it’s very effective militarily but nonetheless he concedes that this is something that perhaps we should have.

RAY SUAREZ: Let me go to Saul Cornell. Answer some of Professor Cottrol’s points about trying to read the amendment by the lights of our own day and whether or not we should talk about whether it meets our needs at all now.

SAUL CORNELL: Well, I think Bob’s point is a fascinating one. We could have a very lively discussion about whether we ought to tinker with the first Ten Amendments. It is interesting the Second Amendment is the only one that anyone has ever seriously considered that we should tinker with in the way that Bob suggests.

I think I would disagree on the claim that there’s a continuity in what commentators are saying. I think that if we posed the debate as one between an expansive individual right and the right of the states, that misses the very distinctive 18th century language about the right of the people. I think there’s no question that the founders, many of them, believed that an armed population who would form the militia and be regulated by law was essential to preserving a republic.

RAY SUAREZ: I’m going to have to stop you there. I’m sorry, Professor. Thank you, guests, all.