TCU Common Reading2009

The Second Amendment and the

Right to Bear Arms

Inside front cover

TCU Common Reading

The Second Amendment and the

Right to Bear Arms

Prepared by the faculty ofTexas Christian University

August 2009

The Second Amendmentto the Constitution

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.

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From the TCU Student Handbook

3. Prohibited Conduct3.2 General Rules and RegulationsThe following conduct is prohibited and subject to the disciplinary sanctions outlined in Section 5.3.2.4 Weapons or dangerous devicesUse, storage, or possession of weapons or dangerous devices including, but not limited to, firearms, ammunition, martial arts devices, knives, sling shots, air powered guns, blow guns, fireworks, or flammable liquid. Possession of a weapon or threat of use of a weapon may result in immediate expulsion in addi-tion to the filing of criminal charges. (page 44)3.3 Residential living rulesIn addition to the rules listed in section 3.2, the following rules apply specifically to University housing.3.3.2 Community safetyBehaviors that endanger the well being of any or all residents are strictly prohib-ited. These include, but are not limited to:a. use of fireworks, bottle rockets or other explosive or propelling devices;b. possession of all weapons, guns, other propelling devices and ammunition; (page 46)

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Welcome to TCU! Your professors, and the entire TCU community, are eager to help you take your next steps in intellectual and personal growth. As you prepare to begin one of the most exciting times of your life, full of new op-portunities, challenges, and uncertainty, we endeavor to give you a taste of the intellectual process of open inquiry and civil discourse which represent the ethos of a university liberal arts education. We hope that the TCU Common Read-ing will be a valuable landmark, as it is your first opportunity to engage with a professor and your fellow students in an academic setting.

The Common Reading is also meant to initiate some personal reflections on the TCU Mission Statement, “To educate individuals to think and act as ethi-cal leaders and responsible citizens in the global community.” We think that an “ethical leader and responsible citizen” should understand the need for the protection of individual rights in our society as well as the needs of those who are tasked with protecting those rights. To help you gain that understanding, this year’s Common Reading considers the issue of individual rights in the frame-work of the Second Amendment and the Right to Bear Arms.

Does the Second Amendment ensure that individuals have the right to keep and bear arms? Or does it mean only that the states have a collective right to maintain well-regulated militias? And what arms, individually or collectively, are we allowed to keep and bear? How has the Supreme Court interpreted the Second Amendment?

To help you grapple with these issues, we have introductory letters from TCU’s Provost Nowell Donovan (insert) and Sarah Brady, Chair of the Brady Campaign to Prevent Gun Violence (next page), followed by selections that fall into four areas: popular culture, literary, journalism, and scholarly/legal. These selections vary from cartoons to images for T-shirts and bumper stickers, from newspaper articles to web postings, and from an excerpt from a play to an excerpt from a book. We hope the letters will set the tone for a lively and intel-lectual debate and that the number and variety of readings will engage as many of you as possible. We urge you to keep this booklet as it may be used in some of your future intellectual endeavors at TCU.

In preparation for your group discussion, we ask that you read the selections in the booklet and write a short reaction paper (400-500 words) to the questions found on page 32 of the booklet. The paper is due and will be collected at your Common Reading session on August 21. In addition, we ask that you email your paper as an attachment to tcucommonreading@tcu.edu. Be sure to include your name on the paper. Also, please keep a copy for your own files.We look forward to seeing you on August 21!

Ed McNertney, Chair2009 Common Reading Steering Committee

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Welcome to TCU and the 2009 Common Reading! I hope the Common Reading will be a rewarding start to your academic journey at TCU and will lead to a lifetime of intellectual inquiry.

This year’s Common Reading considers the Second Amendment and gun violence. I am honored to serve as the Chair of the Brady Campaign to Prevent Gun Violence – I have been an advocate for reduc-ing gun violence since my husband Jim, President Reagan’s Press Secretary, was shot and seriously wounded during an assassination attempt on the President in 1981. I believe in that respect I have a unique perspective on this issue, and thus I have dedicated much of my adult life to passing laws to prevent dangerous people from acquiring guns.

The Supreme Court ruled on the meaning of the Second Amendment last year, finding that there is an individual right to own a gun but that reasonable restrictions, like the ones the Brady Campaign advocates, are entirely consti-tutional. I believe we can make our streets and communities safer by requiring Brady criminal background checks on all gun sales, restricting military-style assault weapons, and strengthening law enforcement’s efforts to stop the illegal gun market, while still allowing responsible citizens to keep legal firearms for hunting and self-defense in the home.

The latest debate about the gun issue is not only theoretical, but is coming right now to you at TCU and colleges around the country. As I write, the Texas legislature is considering legislation that would force colleges to allow guns on their campuses. Think for a moment about how a gun in the classroom might affect a discussion or how you would feel if the roommate you just met kept a gun in your dorm room. While it is always great to imagine someone could stop a mass shooter, life is not like the movies. President Reagan and my husband were both shot while surrounded by numerous armed and highly trained Secret Service Agents.

I encourage you to keep your mind open while considering the selected readings, and think about how we can best balance the right “to keep and bear arms” with the necessity of protecting the public from gun violence.

Sincerely,Sarah BradyChair, Brady Campaign to Prevent Gun Violence

1225 Eye Street, NW, Suite 1100Washington, DC 20005 (202) 898-0792 FAX (202) 371-9615www.bradycampaign.org4

Table of Contents

The Second Amendment to the Constitution ........................................................ 2

From the TCU Student Handbook ......................................................................... 2

Welcome................................................................................................................ 3

Introduction ........................................................................................................... 4

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Excerpt from The Right to Bear Arms : Constitutional Law, Politics, and Public Health ................................................................................... 6Lawrence Gostin, J.D.

Excerpt from District of Columbia et. al. v. Heller: Another Round in the Debate Over Gun Control ................................................................................................. 7Greg S. Weaver

Journalism • Thunder from the right on gun ruling ..................................................... 8 • Second Amendment––No Longer Embarrassing .................................. 10 Robert A. Levy

Popular Culture • Images ................................................................................................... 12 • Doonesbury Cartoons ........................................................................... 13

Literary • Excerpt from The Second Amendment Club ......................................... 14

Scholarly/Legal • The Right to Keep and Bear . . . What? (condensed) ........................... 20 Alo Konsen • The Bill of Rights (excerpts) ................................................................. 26 Akhil Reed Amar

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Writing Assignment ............................................................................................ 322009 Common Reading Steering Committee andTCU’s Mission, Vision, and Values .................................................................... 33

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From The Right to Bear Arms: Constitutional Law, Politics, and Public Health

Lawrence Gostin, J.D.

[Justice Antonin] Scalia is correct in observing that possessing a handgun at home is a distinctly American value. Private citizens own more than 200 million firearms, increasing by 4 million annually, with 40% of households owning at least one firearm. However, these firearms actually make the public less safe. A gun in the home is far more likely to be involved in killing a family member than an intruder, and a hostile gun display is most commonly used to instill fear in female domestic partners. Each year, more than 30,000 deaths are associated with firearms, accounting for 18% of all injury-related deaths. Twice as many nonfatal firearms injuries require emergency care. Having a single handgun in the home makes a person 5 times more likely to be unintentionally shot and killed than if there were no gun in the home. Between 1981 and 2005, firearms were used in 58% of suicides, and individuals living in homes with guns were greater than 3 times more likely to commit suicide than those living in homes without guns. Firearms in the home, moreover, are often used to supply the criminal illicit market. An estimated 500,000 guns are stolen every year, and about half the guns sold by high-volume dealers are used in a crime within 2 years of purchase. Firearm injuries and deaths result in a $2 billion annual ex-penditure in medical care and an overall economic burden of $100 billion.

JAMA. 2008; 300(13): 1575-1577.

Lawrence Gostin, J.D., is affiliated with the O’Neill Institute for National and Global Health Law, Georgetown University Law Center, Washington, DC.

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From District of Columbia et. al. v. Heller: Another Round in the Debate Over Gun Control

Greg S. Weaver

In a 5-4 decision on June 26, 2008, the Supreme Court of the United States identified circumstances under which the Second Amendment to the Constitu-tion allows for an individual to lawfully possess a handgun. In the majority opinion of the Court, Justice Scalia stated, “The Second Amendment protects an individual right to possess a firearm and to use that arm for traditionally lawful purposes, such as self defense within the home” (Supreme Court of the United States, 2008, p. 1). This potentially landmark decision addresses (at least in part) the longstanding question over whether the right to bear arms mentioned in the Second Amendment applies to individuals or whether it authorizes states to arm militias. . . .

It is entirely coincidental yet ironic that on the day the Supreme Court ruled in the Heller case, I, for the first time, purchased a handgun. Acknowledg-ing the shortcomings of an n=1 sample, I suspect my experience on that day is not uncommon. It is not surprising that I heard a number of comments—from employees and customers alike—about the potential ramifications of the ruling and, in particular, of how that day was a “win for the good guys.” As I complet-ed my purchase, I was asked if I intended to buy only one gun.1 For a moment, I was taken aback by this unexpected question.

In a number of ways, this brief encounter illustrates many of the issues that surround the debate over gun policy. . . . [I]n the absence of conclusive research findings, attitudes and policy alike may be more of a function of emotion at the expense of evidence. . . . [R]hetoric serves as an indicator of a cultural divide and, in this instance, differences of opinion are genuine. However, a possible unintended consequence of this heated debate is that areas of agreement are overlooked . . . .

1. As it was not known to persons in the store that I am employed in academia (thinking of the stereotypes associated with this occupation), I have pondered the question of who qualifies for membership in this particular group.

Greg S. Weaver is an associate professor in the Department of Sociology, Anthropology, and Social Work at Auburn University.

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Thunder from the right on gun ruling

Some conservative jurists don’t like Scalia’s ‘activist’ opinion.

In a hotly contested case from the District of Columbia four months ago, the U.S. Supreme Court ruled that the Second Amendment protects an individual’s right to own a gun even if local political preference calls for controls on weap-ons. The ruling struck down Washington’s gun control law, except for bans on possession by the mentally ill or the carrying of weapons in sensitive places such as schools. The 5-4 decision was written by Justice Antonin Scalia, perhaps the court’s most conservative justice, and was widely hailed by hunters and other firearms advocates who oppose heavy restrictions on gun ownership.

But the reaction from conservative judges has been a surprise, the New York Times noted last week. Two prominent appellate justices say Scalia’s majority opinion was “illegitimate, activist, poorly reasoned and fueled by politics rather than principle,” the Times reported. Worse yet, the judges critical of Scalia’s opinion in District of Columbia v. Heller say it was “a right-wing version of Roe v. Wade,” the 1973 opinion recognizing a woman’s constitutional right to have an abortion, the newspaper added.

Those are fighting words in any conservative forum. But Appellate Judge Harvie Wilkinson of Virginia, a member of the 4th U.S. Circuit Court of Appeals in Richmond, is ready for that fight. In a forthcoming article in the Virginia Law Review, Wilkinson wrote, “the Roe and Heller courts are guilty of the same sin .... The court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

Meanwhile, Judge Richard Posner of the 7th Circuit Court of Appeals in Chicago recently wrote in The New Republic that the failure to allow local offi-cials to work out a solution “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

The Second Amendment protects a right to bear arms, but the disagreement has long been whether there is a collective right of the people to do so, such as for a state militia, or an individual right that guarantees a person’s right to own firearms. Warren Burger, the late chief justice, once called the notion of an indi-vidual right to possession “one of the greatest pieces of fraud” ever perpetrated by a special interest group, the paper said.

Conservatives have long chafed under what they saw as an activist 1973 court creating Roe v. Wade. But with Scalia’s opinion, Wilkinson warned, there’s

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a risk of damage to conservative judicial philosophy, the Times noted. That may horrify some conservative judges, but conservative citizens who liked the result in the gun case probably won’t be any more troubled than most abortion-rights supporters were by the abortion decision 35 years ago. The wonder of it all is that it took so long for conservative activism to gain popularity— even in a split decision––on the high court.

The above editorial appeared in the Charlotte Observer on Monday, October 27, 2008 and in the TCU Daily Skiff, October 29, 2008.

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Second Amendment–– No Longer Embarrassing

Robert A. Levy

Added to cato.org on July 2, 2008. This article appeared in the McClatchy News Service on July 2, 2008.

“The right of the people to keep and bear Arms shall not be infringed.” That’s the operative clause of the Second Amendment––nearly erased from the Constitution in 1939 by a muddled and confusing Supreme Court opinion in United States v. Miller. Last week, apparently embarrassed by seven decades without a coherent explanation of the right celebrated during the Framing era as “the true palladium of liberty,” the court rediscovered the Second Amendment. More than five years after six Washington residents challenged the city’s 32-year-old ban on all functional firearms in the home, the court held in District of Columbia v. Heller that the gun ban is unconstitutional.

Indeed it is. For starters, no handgun could be registered in D.C. Even pistols registered prior to the 1976 ban could not be carried from room to room in the home without a license, which was unobtainable. Moreover, all firearms in the home, including rifles and shotguns, had to be unloaded and either disassem-bled or bound by a trigger lock. In effect, no one in the District could possess a functional firearm in his or her own residence. And the law applied not just to “unfit” persons like felons, minors or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

[I]t’s also fair to say that the court’s razor-thin majority conveys a crucial message: Judicial nominations matter.

D.C. Mayor Adrian M. Fenty raised two principal arguments in support of the city’s ban. First, the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for self-de-fense and other personal uses. Second, even if the Second Amendment protects private ownership of firearms for non-militia purposes, D.C.’s legislature can constitutionally ban all handguns if it determines, for example, that rifles and shotguns in the home are a reasonable alternative means of self defense. The court rejected both arguments.

Essentially, wrote Justice Antonin Scalia for a 5-4 majority, the militia clause announces one purpose of the Second Amendment, but does not limit or expand the right to keep and bear arms expressly stated in the operative clause. Nor does the court’s prior precedent–– United States v. Miller (1939)–– say oth-erwise. It establishes simply that some weapons–– e.g., a sawed-off shotgun–– are not protected unless they can be shown to have military utility and be in common use. Moreover, declared Scalia, the District may not categorically ban 10

“an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.” Alternative weapons, such as long guns, have numer-ous disadvantages and must, under a provision of D.C. law, be kept unloaded and either disassembled or trigger-locked. That provision does not contain an exception for self-defense.

In his dissenting opinion, Justice John Paul Stevens not only quarreled with Justice Scalia’s interpretation of historical events but he also implied that Scalia had abandoned true judicial conservatism by dragging the court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens–– the same justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.

Justice Stephen Breyer, also dissenting in Heller, proffered this extraordi-nary statement: “The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.” Nonsense. Forty-four states have constitutional provisions protecting an individual right to keep and bear arms. Legislatures in all 50 states have rejected bans on private handgun ownership. Concealed carry is permitted, with varying degrees of administrative discretion, in all states except Wisconsin and Illinois. Those laws would have remained on the books no matter what the Supreme Court had decided in Heller. The major impact of the court’s opinion will be felt, not “throughout the United States,” but in the cities and other political subdivisions that have enacted draconian gun laws under delegated power from state governments.

Heller is merely the opening salvo in a series of litigations that will ulti-mately resolve what weapons and persons can be regulated and what restrictions are permissible. Near term, the Court will also have to decide whether Second Amendment rights can be enforced against state and local governments. Despite those remaining hurdles, it’s fair to say that the court’s blockbuster decision makes the prospects for reviving the original meaning of the Second Amend-ment substantially brighter. And given the unfolding presidential contest, it’s also fair to say that the court’s razor-thin majority conveys a crucial message: Judicial nominations matter.

Robert A. Levy is chairman of the Cato Institute’s board of directors, co-counsel to Heller, and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

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Edited excerpts fromSecond Amendment Club

A monologue play

Peter Morris

Place: ..................................................................................... Winnetka, Illinois

Time: ........................................ The late 1990s (between Columbine and 9/11)

Character: .........Martin D. Roland, or “Teen”, an 18-year-old high school student

“[…]” = an edit in the script

Teen: “What I’m basically doing is trying to imagine something different for this area, Winnetka, Chicago, whatever. And you have to think, sometimes, I mean that’s the American way: we got the first amendment, which says like freedom of speech, y’know, like you can say anything? Which means that nothing is worth saying. Which means that when the first amendment fails you, man, you turn to the second amendment, which is the right to bear arms. I may not be in AP US History but you pick up what you’re gonna need someday.”

The relationship between the Second Amendment and the issue of gun control has been hotly debated. Following the horrifying incidents of Colum-bine, Virginia Tech, and other similar tragedies, the issue of gun control invari-ably becomes foremost in the mind of the American public. While lawyers and politicians may argue about the parameters of the Second Amendment, there is no denying that some individuals perceive the amendment as guaranteeing the individual a right to own guns. Such is the case in Peter Morris’s monologue play THE SECOND AMENDMENT CLUB. Morris sets the play in Winnetka, Illinois, in the late 1990s “between Columbine and 9/11.” The sole character in the play is Martin D. Roland (“Teen”), an 18-year-old high school student. In this provocative and disturbing work, Morris examines the idea that one’s perception becomes one’s truth, regardless of the ultimate reality of a given situ-ation.

SCENE ONE: [Teen probably begins the play at his computer, typing. Perhaps he speaks out the first paragraph as he types.]

You don’t know my name yet but I might as well tell you cause everybody’s gonna know it soon enough. Martin D. Roland. Remember that. I was born 14

to be something big and if nobody believes that now, well, that’s their problem. If I was an internet start-up company, man, I’d tell you to put like a thousand dollars on me and then book a world cruise for a year from now, first class. I’m letting you in on the ground floor to Project MDR … we’re talking Japanese mutant monster movie proportions. My wingspan is tremendous! I will destroy you all!

Now I know you’re probably thinking who’s this smartassy little adolescent talking like he knows about everything, but listen up, ‘kay? I may be eighteen, just, I turned eighteen in November so I can cast the deciding vote in a meaning-less national election even if I can’t order a beer at the bar – but even though I’m only eighteen, I’ve tried like virtually everything and lived to tell you about it. You gotta believe that. I don’t know if what I’ve got to say is, like, useful or anything, but it’s like people my age thirty years ago or whenever were coming back from Vietnam … it was war stories, and that’s what I’ve got to tell, even if I have lived in the suburbs all my life. That’s a war too. Sort of.

… I don’t have that many friends. By one way of looking at it, I don’t have ANY.

Although I hang out a lot with Eddie. But I don’t mind Eddie being the way he is sometimes cos at least he listens to me ... Eddie was over here the other night, actually. Usually, he comes over, and we go out back on the porch and smoke a cigarette … Anyway, as we smoke, I roll the joint, Eddie watches. ... I say to Eddie—why can’t there be a war? I mean, not the kind where the government tries to make you believe things and shit, propaganda, but the kind of war where they just give you the gun and let you at it. I would’ve been so good in the LA Riots … with my laser-scope rifle and I would be like so good in Bosnia and I don’t even know what they’re fighting about. I don’t even know where Bosnia is. All I know is that it seems like in Bosnia they are willing to be honest about how worthless most of human life is, and that’s a good thing in my opinion.

Eddie’s just staring at me like he does sometimes. So I say, loud, THIN THE HERD, ED. READ YOUR DARWIN.

Have you ever read Darwin? he asks.

Well, like, I read all the time, and like these ideas are everywhere so—

Yeah, but have you read Darwin? he asks.

So I tell him the truth, which is, not exactly cause he’s like an old writer and it’s got all this thee-and-thou shit in it. But I’ve read what I have to to under-stand the way Darwin saw the world. Y’know? And then I try to explain to

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Eddie, that we’re close to achieving an exciting new level of Darwinism, cause you don’t have to know all about animal behavior and alpha males and shit to see that basically all the old Darwin rules still apply in high school. Right? If you’re the fittest on the football team or the basketball team, you get your pick of the blondes, and the rest of us have to find a niche around that somehow…, this like new level of Darwinism that I was trying to explain to Eddie, it’s like—there’s now these—equalizers. The dumb jocks will still beat you up, but if you can use a computer, or a gun for that matter, then you beat them on a higher level—“the Great Equalizer.”

But of course nothing I ever say to Eddie has had any effect.

… So I like to think that my manuscript is something different. Talk about the Great Equalizer. But to explain what I’m doing, well, it’s like Eddie always says he wishes they’d teach creative writing at New Trier. Typical. “I mean, we got things to say.” I told him … why don’t they just teach destructive writing?

... What I’m basically doing is trying to imagine something different for this area, Winnetka, Chicago, whatever. And you have to think, sometimes, I mean that’s the American way: we got the first amendment, which says like freedom of speech, y’know, like you can say anything? Which means that nothing is worth saying. Which means that when the first amendment fails you, man, you turn to the second amendment, which is the right to bear arms. I may not be in AP US History but you pick up what you’re gonna need someday.

So, my manuscript like starts with major bombs and detonations going off all throughout the greater Winnetka area, down through Chicago, et cetera. And then what follows is I like watch and judge everyone I know, and I decide what horrible fate is gonna be dealt out to them. Cause if you think about it, nothing’s ever going to change around here. Unless something like that does actually hap-pen.

... So does that explain like my manuscript? I mean, like, this plan for “de-structive writing.” And I don’t care if it’s popular, it’s like, what I want to do is wake people up just a little. All these perfect people sitting on top of their piles of money, or just playing by the rules hoping that someday they’ll have their own piles of money to sit on, it’s just so disgusting to me.

… I haven’t put my Dad in my manuscript. I think it’ll be punishment enough if he reads it. Maybe it’ll kill him.

But now that my room’s clean, it’s like, I’ve got everything I need on my computer. I’ve got the website, and the manuscript, and that’s what I’m gonna be concentrating on. I mean, I’ve got to wait anyway till I’ve got the world figured out before I make a move. You know what I mean? It’s like, clean your

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room, clean your head, and prepare yourself for the big event. I don’t know what that’s gonna be, but something’s gotta happen. It’s like rainclouds gather-ing in the sky or something, everything building up has to reach a head some-where, somehow. And when those clouds crack open, and its all comin’ down on us – Shit’s washed away. Another flood.

SCENE TWO: [The computer is now gone. Teen is clearly agitated.]

... I’m nice. You know, I really am. I’m too nice. And so it’s like the only good thing I can do is to say to myself, look, that niceness is my license to kill.

Cause that’s it, sometimes I just want to like—kill people. I mean, I can’t even tell you what gets me going, except people who—I dunno ... like I just hear people mispronouncing words and I want to kill them. Even Eddie, I mean he’s in AP English, which I’m not even, but still when I wrote this word up on my bedroom door, back in the old bedroom, before I moved to this side of the house—this is one of my favorite words, I guess I picked it up playing Doom or D&D, I put up this big sign on my door that just said: PANDEMONIUM. And like after months of having this up, Eddie mentions it one day, and he says it like rhymes with “condominium.” Or maybe he said “pondo-minimum” even. But that is like a really perfect example of my life in this town. I’m thinking “pande-monium” and they’re all thinking “condominium.”

... And what you need for that is ammonium nitrate, which is just a chemi-cal explosive, but it’s very stable, I mean, it doesn’t like detonate with a spark, which makes it ideal for working on in your bedroom. But it’s got two prob-lems, it’s hygroscopic, which means...well, it’s also very difficult to detonate, but I’m coming to that. What helps with both is if you turn it into ANFO, which stands for Ammonium Nitrate Fuel Oil solution.

So don’t ever let anybody tell you I’m not a threat. And now you know how I spend my time when they take away my car and my computer. So blame who you want when the shit comes down.

SCENE THREE: [There’s now a video camera on a tripod in the room. Also a gun. Maybe some homemade bombs.]

... From this window, you can see Sheridan. Cars all day. All night even, and I’m not sleeping much, so trust me.

Before they took my Toyota, I never thought much of it. But just look at that. Like bugs crawling. It’s like what I guess it’s like being—infested with lice. They just keep moving along, these tough shells, going from one identical

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place to the other, from school to the mall to the office to the home, everywhere it’s exactly the same.

It’s no wonder people are the way they are. You spend as much time in your car, it’s like a coffin. My mom used to say, the only meaning in life is getting ready to spend a long long time dead. But all these people, maybe they’ve got the radio on, maybe they don’t, maybe they’re talking on a cell phone, maybe not, but nobody ever talks to each other. They pull up to red lights, everybody in their sealed-off box, rows and rows of boxes crawling or bumping against each other or swarming and coming to rest for the night. What would it be like if these people could talk to each other? You know they probably want to, that’s why there are so many lame bumper stickers out there. But you start to realize, there’s just nothing doing. You’re sealed in the car, nothing comes out except carbon monoxide. Pollution. You can take it through the car wash, but there’s nothing clean about a car. Ever.

... I feel like once upon a time it might have been enough to rebel. But not anymore. Believe me I’d be the first to rebel if I thought it would get me any-where. But we all know better.

I’d try suicide, but I feel like that’s not enough. You can’t just say yes to death. It can’t be that easy. It’s just not—brave enough. You’ve got to find some bigger better way of saying NO to this life.

... This is what they don’t tell you about Darwin. That once you don’t need to defend yourself against, like, predators, or like rodents eating your eggs, or typhoons or shit, the weather—well, then you’ve got to defend yourself against yourself, which is the hardest thing of all. I mean, everyone in this town has a gun, and says they got it for self-defense, but who are you defending yourself against except for yourself? I lie here in bed at night, and I just do this, y’know [gestures with his hand] like I’m slitting my own throat, like my hands need to move and find something and there’s nothing for me to do. I even got a knife from the kitchen drawer the other night and lied here on the bed all night, couldn’t sleep, I can’t sleep anymore, just feeling that cold metal against my cheek, both hands on the handle, thinking do it, do it. But I didn’t.

... I called Eddie back ... there’s a long silence. Neither one of us says any-thing.

[Pause]

He says Teen?

I say, I’m just calling to tell you, if you’re smart, don’t go to school tomor-row, man.

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He doesn’t say anything.

I say, Play sick. You understand?

[Pause]

And...

Yeah.

Cause if people really stopped for a ... MINUTE to think about the kind of world they are actively building, or even if they don’t take an active part, if they just hide ... then what? Stopped for a minute to think.

[He pulls the lenscap off the video camera, and his face is projected across the back wall of the theatre.]

Sixty seconds ticking past, it’s like looking down the barrel of a gun, the longest minute anyone’s ever known. Everything flashes in front of your eyes, everything that’s your fault. And then—

It’s up. The minute’s over. And you think about how much you want a cig-arette or a drink, how much you want to get in your car and go somewhere else, how much you want to crawl into bed and pretend that whatever you’re doing here isn’t the same WHOREDOM that infects everything else ... but meanwhile the icecaps are melting and the acid rain is falling and the cell phones are drill-ing cancer into your brain and everybody’s free to amuse themselves to death.

We’re already dead. We started dying the minute we were born and nothing we do makes the slightest difference. You live in a box, you die in a box. In which case, why not be on the only box that matters. Television.

I won’t be there to enjoy it. But you will. Pop some popcorn, campers, and think of me. You won’t have a choice.

Look out the window, you can see. The cars are pouring out into the road already. Stockbrokers to the office, housewives to the store, kids like me to school. And everybody but me has a place. Has a home. But that’s why I’m free. I’m brave. Free to be brave. They’re all thinking condominium. And I think you know what I’m thinking.

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The Right to Keep and Bear . . . What?The Second Amendment Definition of “Arms”

(Condensed)

Alo Konsen

I. United States v. Emerson The Fifth Circuit Court of Appeals’ recent decision in United States v. Emerson revived a long-dormant legal debate over the right to keep and bear arms. Three competing views predominate in the gun control debate, which most scholars call the collective rights view, the sophisticated collective rights view, and the individual rights view. The collective rights view says that the Second Amendment does not apply to individuals but actually does nothing more than guarantee a state’s right to arm its militia. The sophisticated collective rights view says that the Second Amendment protects a form of an individual right, but the right can only be exercised by members of a formal state militia, who are bearing arms while actively participating in that militia’s activities. The individual rights view says that the Second Amendment recognizes the right of individuals to keep and bear arms.

The Emerson court broke with long standing precedent and recognized the individual rights view of the Second Amendment, to the exclusion of the other two views (held by every Circuit until Emerson was handed down).

First, the Emerson court ruled that the appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee (i.e., “the people” are the ones bearing arms), and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia.

Second, Emerson held that the plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.

Third, the Emerson court ruled that taken as a whole the text of the Second Amendment’s substantive guarantee aims at an individual rights interpretation, especially because of the guarantee’s placement within the Bill of Rights and the wording of the other nine Amendments around it, and because of the original Constitution as a whole. Specifically, the court said “[it] appears clear that ‘the people,’ as used in the Constitution, including the Second Amendment, refers to individual Americans.”

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Last, Emerson stated that the Second Amendment’s substantive guarantee, read as guaranteeing individual rights, may reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that “well-regulated Militia” which is “necessary to the secu-rity of a free State.” As argued elsewhere in the case, the preamble referring to the militia does not contradict the placement of the Second Amendment within the Bill of Rights, the wording of nearby Amendments, and the wording of the rest of the main body of the Constitution.

II. Emerson and the definition of “arms” To define “arms,” we can turn to any of three main schools of constitu-tional interpretation that currently hold sway in American law. To line up with most commentators I will call them the “living document” school, the “framers’ intent” school, and the “textualism” school. The Emerson court subscribes to the textualism school, and I think rightfully so.

Legislatures enact laws made of words, not their intentions and not society’s meaning-of-the-moment. Searching for what the words of the text were under-stood to mean by the rational, reasonable reader of the time is the only logical, stable, proper method for interpreting the law. As Judge Robert Bork puts it, All that counts is how the words used in the Constitution would have been un-derstood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like.

In our situation, we must ask “what did ‘arms’ mean when the Second Amendment was written and ratified, in that society, and in that context?” How would a citizen or judge back then have understood “arms”? Only after we are confident in our answer can we apply it to our own world to predict an outcome. The Emerson court used this method of interpretation, and we will use it too, to discover what “arms” meant to the generations alive near 1787, when the Sec-ond Amendment was drafted.

III. What “arms” meant, circa 1787 In general, our modern documents offer little help in defining “arms,” but our older documents have information that can enlighten us. Starting with the Declaration of Independence, we find that it specifically mentions arms only once. It recites a litany of King George III’s violations of American rights, stat-ing that he “has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.” We gain no special insight into the definition of the term here, but it clearly contemplates military weapons.

Eleven years after Thomas Jefferson wrote the Declaration, future President James Madison kept exhaustive records of the debates and goings-on during

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the Constitutional Convention of 1787, where he was a delegate from Virginia. Although the delegates hashed out many of the details of creating and supply-ing the militia, only one quote in Madison’s huge record bears closely on their understanding of the term “arms.” During debates over the content of the militia clauses on August 23, 1787, delegate Elbridge Gerry of Massachusetts asked “Will any man say that liberty will be as safe in the hands of eighty or a hundred men, taken from the whole continent, as in the hands of two or three hundred, taken from a single state?” Jonathan Dayton of New Jersey argued against Gerry’s ideas about militia uniformity. Dayton thought that in some states “there ought to be a greater proportion of cavalry than in others. In some places, rifles would be most proper; in others, muskets, &c.” Looking at his reply, we see that Dayton evidently thought the militia could include mounted troops, not just foot soldiers with muskets. Nowhere in Madison’s record did any delegate express surprise or disagreement with that idea.

Madison, the eventual author of the Second Amendment, wrote in Federal-ist 46 of the “last successful resistance of this country against the British arms.” Here the term “arms” refers generally to the British invasion and all its weapon-ry, including cavalry, artillery, and naval power. Expanding on Hamilton’s theme of deterrence, Madison then argued for the establishment of a militia of “half a million of citizens with arms in their hands” as a deterrent against the standing army of any tyrannical federal government that might arise. Although read in a wooden and literal sense he meant man-portable small arms, his other writings and those of his contemporaries show that these men did not always think of arms in such a narrow way.

Moving outward from the Constitutional Convention, we look to records of the debates that the individual states held when deciding whether to ratify the Constitution. Many of these records include references to “arms.” For example, when New York ratified the Constitution, it added a list of proposed Amend-ments which included the following text: “. . . That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” Rhode Island’s ratification document echoed that sentiment, saying “. . . That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” The New York and Rhode Island proposals contemplate small arms at a minimum, and do not explicitly limit their defini-tions to small arms.

The original thirteen states’ constitutions expand the definition a bit beyond the U.S. Constitution, but not much. The original text of the Vermont Constitu-tion mentions “arms” in the same context as the military and “standing armies” in general. The Pennsylvania Constitution of 1776, in its Declaration of Rights, contains identical text. A common sense reading of both documents suggests that

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the weapons in question could possibly include all military weaponry customar-ily in use at the time. Although a broad reading is possible, it is not certain.So where does all this historical research bring us? It seems fairly clear that the Founders and their informed contemporaries understood the term “arms” to be synonymous with what we call “weapons.” They did not use that overarching meaning at all times, sometimes referring to particular types of weapons like small arms as simply “arms.” But the Founders’ generation were certainly will-ing to apply the term to more powerful and traditionally “military-only” weap-ons. This is evident in the writings that prove they thought it very important to have an armed populace capable of resisting foreign invasion and domestic tyranny alike.

Since we are trying to be faithful textualists, now we need to bring that under-standing forward to our time and see what shakes out.

IV. 1787’s definition applied to 2001 America If we take a textualist approach to interpreting the Constitution, we find that all military weapons are considered “arms” for the purposes of the Second Amendment. Although recognizing the keeping and bearing of arms as a fun-damental individual right can rein in judges intent on eroding our constitutional freedoms, it also causes huge problems if we let the right run wild.

In the late 1700s, individual access to military weaponry was a good thing. The citizenry could effectively employ any and all military weapons against enemies, without fear of much collateral damage. Now, though, the technology of war has far outstripped even the wildest dreams of our forebears, and our textualist exercise presents serious problems if applied in isolation.

We can wipe out cities under a nuclear mushroom cloud with the press of a button. We can unleash invisible chemicals that have no scent and no taste, yet can strike crowds of people dead in moments if the smallest amount comes in contact with unprotected skin. We possess germs and viruses that need only be dispersed in small quantities to be effective, that have no known cure, that kill eight of every ten humans infected, and that can circle the globe in hours thanks to international air travel. But worst of all, human nature has not improved since the Eighteenth Century.

We ourselves are the deadliest weapons around. Our capacity for cruelty, pettiness, selfishness, carelessness and rage has reached new heights (or is that depths?) in the last century. In the 1700s, a psychopath could still kill, but his ability to kill was restrained by relatively weak weapons. Now, our movies unsettle us with visions of nuclear missile-equipped madmen. Even the wildest scenarios seem less outlandish by the day, especially after we watched nineteen suicidal fanatics topple the World Trade Center, punch a gaping hole in the Pen-tagon, and kill thousands in mere moments. Even formerly obscure diseases like

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anthrax now pose a daily threat thanks to our efficient postal system.

If the reasoning behind Emerson becomes the law of the land, and if the textualist understanding of “arms” takes hold without any limit at all, we might find ourselves living right next to careless or homicidal people who will have suddenly found the ability to take thousands of their fellow humans with them to the grave in a very short time.

Fortunately, reasonable steps can protect us from a completely unfettered textualist application of Second Amendment rights.

V. Honestly (and constitutionally) applied common sense: the Twenty-Eighth Amendment We cannot use the Second Amendment to argue against keeping and bear-ing any weapon, but we also understand the risk this causes in a society with weapons as destructive as ours. Fortunately, we have ways to preserve society and protect the Second Amendment without illegitimately harming the Constitu-tion. I will not dig too deeply here since that would be beyond the scope of this article, but when I was in the military I was always taught never to discuss a problem without offering a solution. I will therefore suggest some likely starting points from which to search for the right answer.

Look at the preamble to the Constitution, which sets out the reasons for enacting this framework of our law in the first place.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Common sense tells us that no interpretation of any legal text can rightly be read so as to threaten the explicitly stated reasons for enacting the text in the first place. I think the preamble supports the idea that we the people can rein in someone’s claim to a “right” if that right presents enough of a threat to our do-mestic tranquility, and if the general welfare of our people is in enough danger. The danger posed by powerful weapons controlled by incompetent, careless, or malevolent individuals obviously qualifies.

No right is absolute. We correct statutes suffering from a scrivener’s error. We permit numerous exceptions to the prohibition on hearsay testimony. We recognize the First Amendment’s protection of the freedom of speech and of the press as fundamental, yet we restrain libel, slander, pornography, “fighting words”, and speech that incites panic. The Confrontation Clause of the Sixth Amendment protects a criminal defendant’s right “to be confronted with the

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witnesses against him,” but we (perhaps unconstitutionally) permit children to accuse adults of molestation while seated behind the safety of a screen through which only the child on the witness stand can see. Although judges often exceed their authority when interpreting the Constitution, our legal system does some-times correctly impose limits and create exceptions to our most fundamental rights in ways that actually preserve the purpose of the Constitution.

Surely, we can come up with reasonable limits on the right to keep and bear arms. To impose these restrictions correctly and legitimately, we would need to enact a Twenty-Eighth Amendment that fleshes out the Second. Perhaps we could limit the right to keep and bear arms to those weapons with destructive power equivalent to the best heavy weapons of the late Eighteenth or early Nine-teenth Centuries. This would permit citizens to arm themselves, but not with weapons so capable of killing vast numbers of other people that the risk would outweigh the benefit. This framework might draw the outer boundary at, say, a mid-size howitzer, a backpack sized flamethrower, a shoulder-launched surface-to-air missile, or an anti-tank mine. Such weapons are destructive, to be sure, yet still comparable to the power wielded by a militiaman of two hundred years ago, standing behind an artillery piece or on the bridge of a privateer’s ship, firing at a crowded enemy troop vessel. Therefore, these weapons should be suitable for private ownership.

The kinds of limits I foresee would also preserve the ability to resist any standing army unleashed against us from Washington, albeit not in the same “toe-to-toe on the field of battle” style used by our ancestors in the Revolu-tionary War. The battle would revert to a guerilla-style conflict, much like the fighting by the French Resistance in occupied France in World War II, or like the efforts of the Contras in Nicaragua in the 1980s. Regardless, no standing army could forever withstand a sustained guerilla war without resorting to weapons of mass destruction . . . which would irreparably scorch the very earth that the army would seek to rule.

Read honestly, the individual right to keep and bear arms in defense of self and country protects every kind of weapon one could want and afford. However, I am certain that the right can survive in a post-Emerson textualist nation while still protecting us from nuts with nukes, if we impose reasonable limits on the exercise of that right.

I simply think we will have to look outside the Second Amendment to other parts of the Constitution to find the authority to do it.

Alo Konsen lives in Cleveland, Ohio. His web address is http://brainshavings.com.

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The Bill of Rights(excerpts)

Akhil Reed Amar

Yale University Press, 1998Permission to use this material was granted by Yale University Press.

From the Introduction, (pp. xii-xiii)

Conventional wisdom acknowledges that the original Constitution proposed by the Philadelphia convention focused primarily on issues of organizational structure and democratic self-governance: federalism, separation of powers, bicameralism, representation, republican government, and constitutional amend-ment. By contrast, the Bill of Rights proposed by the Congress is generally thought to have little to say about such issues. Its dominant approach, according to conventional wisdom, was rather different: to vest individuals and minorities with substantive rights against popular majorities. I disagree.

Individual and minority rights did constitute a motif of the Bill of Rights–– but not the sole, or even the dominant motif. A close look at the Bill reveals structural ideas tightly interconnected with language of rights; states’ rights and majority rights alongside individual and minority rights; and protection of vari-ous intermediate associations–– church, militia, and jury–– designed to create an educated and virtuous electorate. The genius of the Bill was not to downplay organizational structure but to deploy it, not to impede popular majorities but to empower them.

Consider, in this regard, Madison’s famous assertion in The Federalist No. 51 that “[i]t is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” The conventional wisdom of the Bill seems to concentrate almost exclusively on the second issue (protection of minority against majority) while ignoring the first (protection of the people against self-interested government). Yet as I shall show, this first issue was indeed first in the minds of those who framed the Bill of Rights. To borrow from the language of economics, the Bill of Rights was centrally concerned with controlling the “agency costs” created by the specialization of labor inherent in a representative government. In such a government, the people (the “principals”) delegate power to run day-by-day affairs to a small set of specialized government officials (the “agents”) who might try to rule in their own self-interest, contrary to the inter-ests and expressed wishes of the people. To minimize such self-dealing (“agency costs”), the Bill of Rights protected the ability of local governments to monitor and deter federal abuse, ensured that ordinary citizens would participate in the federal administration of justice through various jury provisions, and preserved the transcendent sovereign right of a majority of the people themselves to alter 26

or abolish government and thereby pronounce the last word on structural ques-tions. The essence of the Bill of Rights was more structural than not, and more majoritarian than counter.

From Chapter 3The Military Amendments Immediately after the “Congress shall make no law” amendment, we find the following words: “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 in-fringed.” As with our First Amendment, the text of the Second is broad enough to protect rights of private individuals and discrete minorities; but, as with the First, The Second’s core concerns are populism and federalism. At heart, the amendment reflects a deep anxiety about a potentially abusive federal military.

Populism We have already noted the populist and collective connotations of the rights of the people to petition and assemble in conventions, rights intimately bound up with the people’s transcendent right to alter or abolish their government. When-ever self-interested government actors abused their powers or shirked their du-ties, “the people” could “assemble” in convention and reassert their sovereignty. “Who shall dare to resist the people?” asked Edmund Pendleton with flourish in the Virginia ratifying convention.

To many Anti-Federalists, the answer seemed both obvious and ominous. An aristocratic central government, lacking sympathy with and confidence from ordinary constituents, might dare to resist––especially if that government were propped up by a standing army of mercenaries, vagrants, convicts, aliens, and the like. Only an armed populace could deter such an awful spectacle. Hence the need to bar Congress from disarming free-men. Thus the Second Amend-ment was closely linked to the textually adjoining First Amendment’s guarantees of assembly and petition. One textual tip-off is the use of the magisterial Pream-ble phrase “the people” in both contexts, thereby conjuring up the Constitution’s grand principle of popular sovereignty and its concomitant popular right to alter or abolish the national government. More obvious is the preamble to the Second Amendment itself, and its structural concern with democratic self government in a “free State.” Compare this language with a proposed amendment favored by some Pennsylvania Anti-Federalists: “[T]he people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game…” Unlike our Second Amendment, this text puts individual and collective rights on equal footing.

History also connected the right to keep and bear arms with the idea of popular sovereignty. In Locke’s influential Second Treatise of Government, the people’s right to alter or abolish tyrannous government invariably required a popular appeal to arms. To Americans in 1789, this was not merely speculative

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theory. It was the lived experience of their age. Beginning with the shot heard round the world, when British soldiers met armed Massachusetts minutemen at Lexington and Concord, Americans had seen the Lockean words of the Declara-tion of Independence––affirming “the Right of the People to alter or to abolish” oppressive government––made flesh (and blood) in a Revolution wrought by arms. Thus when Pendleton trumpeted the right of the people to assemble in convention as the answer to any federal misbehavior, Patrick Henry rose to offer a more bleak assessment: “O 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….”

To see the connection between arms and populism from another angle, consider the key nineteenth-century distinction between political rights and civil rights. The former were rights of members of the polity––call them First-Class Citizens––whereas the latter belonged to all (free) members of the larger society. Alien men and single white women circa 1800 typically could speak, print, wor-ship, enter into contracts, hold personal property in their own name, sue and be sued, and exercise sundry other civil rights, but typically could not vote, hold public office, or serve on juries. These last three were political rights, reserved for First-Class Citizens. So too, the right to bear arms had long been viewed as a political right, a right of First-Class Citizens.

Thus the “people” at the core of the Second Amendment were the same “We the People” who in conventions had “ordain[ed] and establish[ed]” the Constitution and whose right to reassemble in convention was at the core of the First Amendment. Apart from the Preamble, the words “the People” appeared only once in the original Constitution, just a single sentence removed from the Preamble and in a context where “the People” unambiguously connoted voters: “ The House of Representatives shall be …chosen every second Year by the People of the several States.”

And if we seek more expansive modern-day readings of the amendment’s broad language, attention to the amendment’s first clause–– focusing on the necessary preconditions for democratic self-government by the people of a “free state”–– suggests a broad understanding of arms. The amendment is about empowering the people so that they may rule, and today that empowerment may call for much more than guns (a word that, in fact, nowhere appears in the amendment). To preserve a free state today, perhaps the people must be “armed” wit modems more than muskets, with access to the Internet more than to the shooting range.

Even if heavily armed, citizens acting individually would face an uphill struggle when confronting a disciplined and professional standing army. In The Federalist No. 28, Alexander Hamilton described a typical nonfederal regime: “[I]f the persons intrusted with supreme power become usurpers, the differ-

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ent parcels, subdivisions, or districts of which (the nation) consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource….” (7). In the federal system of America, however, Article 1, section 8, clause 16 of the Constitution explicitly devolved upon state govern-ments the power of “Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” In the event of central tyranny, state governments could do precisely what colonial governments had done beginning at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army. Wrote Madison in The Federalist No. 46: [T]he State governments with the people on their side would be able to repel the danger…. (A standing army) would be opposed (by) a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.” Yet the “military check of federalism” built into the original Constitution did not quiet Anti-Federalist fears. Many pointed a suspicious finger at earlier language in clause 16 empowering Congress “to provide for organizing, arming, and disciplining, the Militia.” Might Congress try to use the power granted by these words, they asked darkly, to disarm the militia? The Second Amendment was designed to make clear that any such congressional action was off-limits.

The obvious importance of federalism to the Constitution’s original al-location of military power prompts key questions about federalism’s role in the Second Amendment’s clarifying gloss. Several modern scholars have read the amendment as protecting only arms bearing in organized “state militias,” like SWAT teams and National Guard units. If this reading were accepted, the Second Amendment would be at base a right of state governments rather than citizens. If so, the amendment would be analogous to the establishment clause, and similarly resistant to incorporation against state governments via the Four-teenth Amendment.

Though in some ways congenial to my overall thesis about the original Bill of Rights, this reading doesn’t quite work. The states’-rights reading puts great weight on the work militia, but this word appears only in the amendment’s subordinate clause. The ultimate right to keep and bear arms belongs to “the people,” not the states. As the language of the Tenth Amendments shows, these two are of course not identical: when the Constitution means “states,” it says so Thus, as noted about, “the people” at the core of the Second Amendment are the same people at the heart of the Preamble and the First Amendment. Elbridge Gerry put the point nicely in the First Congress, in language that closely tracked the populist concern about governmental self-dealing at the root of earlier amendments: “This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government.”

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What’s more, the “militia,” as used in the amendment and in clause 16, had a very different meaning two hundred years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as “the state militia,” but two hundred years ago, any band of paid, semipro-fessional, part-time volunteers, like today’s Guard, would have been called “a select corps” or “select militia”––and viewed in many quarters as little better than a standing army In 1789, when used without any qualifying adjective, “the militia” referred to all citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection––the “militia” is identical to “the people” in the core sense described above. Indeed the version of the amendment that initially passed in the House, only to be stylistically shortened in the Senate, explicitly defined the militia as “composed of the body of the People.” This is clearly the sense in which “ the militia” is used in clause 16 and throughout The Federal-ist, in keeping with standard usage confirmed by contemporaneous dictionaries, legal and otherwise. As Tench Coxe wrote in a 1788 Pennsylvania essay, “Who are the militia? Are they not ourselves?”

A more plausible bit of text to stress on behalf of a states’-rights reading is “well regulated.” It might be asked, who, if not state governments, would regulate the militia and organize them into an effective fighting force capable of deterring would-be tyrants in the federal government? And if so, how can a provision designed to give state government broad regulatory power over their citizens’ arms bearing be incorporated against states to limit that very power?

Though much stronger than the standard states’-rights reading, this chain of arguments has some weak links of its own. First, it appears that the adjec-tive “well regulated” did not imply broad state authority to disarm the general militia; indeed, its use in various state constitutional antecedents of the Second Amendment suggests just the opposite. Second, and connected, the notion that congressional power in clause 16 to “organiz[e]” and “disciplin[e] the general militia logically implied congressional power to disarm the militia entirely is the very heresy that the Second Amendment was designed to deny. How, then, can we use the amendment’s language to embrace the same heresy vis-à-vis state regulation?

There is another area in which the Second Amendment can be seen as analogous to the establishment clause, imposing federalism limits on the central government in favor of state governmental regulation: the draft. Under this reading, the federal government cannot directly draft ordinary Americans into its army, but state governments can conscript, organize, and train their respective citizens––the militia––who can in times of emergency be called into national service.

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Consider first the key texts in Article I, section 8.

The Congress shall have Power…To raise and support Armies… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;To provide for organizing , arming, and disciplining, the Militia….reserving to the States respectively, the Appointment of the Officers,and the Authority of training the Militia according to the discipline prescribed by Congress.

Wretches miserable enough to volunteer as hired guns might deserve what-ever treatment that they got a the hands of army officers, but citizens wrenched by conscription from their land, their home, and their families deserved better. They were entitled to be placed in units with fellow citizens from their own lo-cality, and officered by local leaders––men chosen by state governments closest to them and most representative of them. Officers would know that, in a variety of ways, they could be called to account back home after the fighting was over.

In the end, the militia system was carefully designed to protect liberty through localism. Here freedom and federalism pulled together. Just as the establishment clause saw a national establishment as far more likely to oppress than state and local establishment––and in the worst case scenario, it was always easier to flee an oppressive locality or state than the nation as a whole––so here, national conscription was far more dangerous than the state and local militia sys-tem. The militia was a local institution, bringing together representative citizens to preserve popular values of their society. (Addition by Dr. Blaise Ferrandino, Associate Professor of Music at TCU: In this scenario, the 2nd Amendment guarantees that the Federal government may not infringe upon the rights of individuals and states to raise armed militias in the interest of protecting these values.)

Akhil Reed Amar is the Southmayd Professor of Law at Yale Law School.

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Writing Assignment

In order to enhance the value of the Common Reading, we would like you to reflect on the following:

One of the most important skills you gain from a college education is the ability to consider all angles of an issue, come to your own conclusions, and express them convincingly and clearly in writing.

The Second Amendment presents an interesting challenge to your powers of analysis, conclusion, and expression. As you have seen from the readings, pas-sions run high on the issue of gun control and discussion is dominated by sound bites and politics. However, the reality of the Second Amendment is complex. It is the only amendment in the Bill of Rights containing a preamble. Before the Constitutional Convention was held, numerous states had clauses in their con-stitutions which were very similar in content and wording. The Supreme Court held that the amendment was a collective (not an individual) right until last year, when it ruled differently. Consider the following questions.

• How does the history behind the amendment (the states’ clauses) help us to interpret its intent? • What is the purpose of the preamble to the amendment? • How is the early 21st century similar to and different from the late 18th, when the Constitution was adopted, in terms of the weapons available and the need for them? • Given the above, what does the individual right to bear arms entail? How would you define “arms?” • Where is the limit between the individual right to bear arms and the public need for protection from those who misuse them? • Do you think that individuals should have the right to keep and bear arms? Why or why not? Do you think the 2nd amendment guarantees that right? Why or why not?

We would like you to consider the readings in this booklet to help you write answers to the questions in at least two of the above bullet points. Your paper should be about 400-500 words and will be due and collected on August 21 at your Common Reading session. In addition, we ask that you email your paper in an attachment to tcucommonreading@tcu.edu. Be sure to include your name on the paper. Also, please keep a copy for your own files.

Please also keep this booklet. Some of your professors, particularly those in Written Composition 1 (English 10803) and Introduction to Speech Com-munication (COMM 10123), may use some of the readings and/or your reaction paper in their courses. The paper may also be used as a baseline writing sample. 32

2009 Common Reading Steering Committee

Ed McNertneyCore Curriculum, Economics, Chair of Committee

Lavonne Adams Efton Park Nursing Mathematics

Giri Akkaraju Mike Sacken Biology Education

David Bedford Alan Shorter Spanish and Hispanic Studies Theatre

Eric Cox Maggie Thomas Political Science Journalism

Blaise Ferrandino Cyndi Walsh Music Student Development Services

Andy Fort Dan Williams Religion English

Barbara Brown Herman Carrie Zimmerman Student Development Services Student Development Services

Charlotte Hogg English

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Our VisionTo create a world-class, values-centered university experience for our students

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