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A Second Life for the Second Amendment? By: Chris Weinkopf
FrontPageMagazine.com | Wednesday, May 15, 2002


"THIS ACTION IS PROOF POSITIVE that the worst fears about Attorney General Ashcroft have come true," grumbles Michael D. Barnes, President of the Brady Center to Prevent Gun Violence. "His extreme ideology on guns has now become government policy."

The "extreme ideology" that Barnes denounces is the radical notion that the Second Amendment to the U.S. Constitution actually means what it says. Unlike many Democratic and Republican attorneys general before him, Ashcroft holds that the Bill of Rights protects the freedom of individualsnot just abstract collectives, well-regulated militias, or the National Guardto keep and bear arms.

As far as extremists go, Ashcroft is in good company.

Thomas Jefferson argued that "no freeman shall ever be debarred the use of arms." James Madison boasted about the "advantage of being armed, which the Americans possess over the people of almost every other nation." Alexander Hamilton wrote that "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped." And George Mason warned that "to disarm the people is the best and most effectual way to enslave them."

But for the last 63 years, following the U.S. Supreme Court’s ruling in U.S. v. Miller, American jurisprudence has placed a tortured emphasis on the first half of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State,") at the expense of the explicit meaning of the second, ("the right of the people to keep and bear Arms, shall not be infringed"). According to this interpretation, only militiamen under the direction of their state governments maintain the right to gun ownershipthe rest of us have no meaningful right to self-defense whatsoever.

Enter Ashcroft, who has ventured on a noble mission to right the historical and constitutional wrongs.

In the footnotes to the briefs that Ashcroft’s Department of Justice filed last week in the cases of Haney v. U.S. and Emerson v. U.S. (links require free Adobe Acrobat Reader), Solicitor General Theodore Olson makes the case 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."

This is radical stuff, inasmuch as it rejects an unfounded but widely accepted bit of conventional wisdom, thus returning to the letter of the Second Amendment and the original intent of those who authored it.

Among the many editorialists, gun-control activists, and politicians who were quick to denounce Ashcroft’s unorthodoxy was New York Senator Chuck Schumer. "During his confirmation hearings," Schumer complained, "John Ashcroft made it abundantly clear that he would enforce the law as it is written, not as he’d like it to be. What happened to that pledge? It’s hard to look [at] his actions and not question whether he’s going back on his word."

For leftists like Schumer, constitutional law is tricky business. The "right" to abortion, for example, which is mentioned nowhere in the Constitution, and which an activist judiciary only discovered in the document’s "emanations and penumbras" nearly 200 years later, is sacrosanct. The Second Amendment, on the other hand, as clear and direct as it is, doesn’t really exist. When leftists like Schumer talk about enforcing "the law as it is written," what they really mean is enforcing their agenda as though it were constitutional law.

In the Seven Myths of Gun Control, Richard Poe neatly demonstrates how the "militiaman" understanding of the Second Amendment reflects modern left-wing values far more than it represents the framers’ original intent. In the Eighteenth Century, the term "militia" referred to all able-bodied men, who were expected to own and maintain their own weapons. The militia was considered a safeguard against the potential abuses of a centralized government and a standing national army.

"Militia," as originally understood, was not, as gun-control advocates now claim, some variation of today’s National Guard, which is funded and armed by the federal government. The country’s founders recognized the need of an armed populacenot only as a safeguard against tyranny, but also as a way to deal with domestic unrest and run-of-the-mill thugs.

Individual rights, of course, have their limitations. Freedom of speech is not absolute, as the classic example about shouting "fire!" in a crowded theater illustrates, but permissible restrictions are narrow and few. The Second Amendment interpretation that Ashcroft has advanced is comparably conservative but flexible. The Emerson and Haney briefs that have aroused such consternation on the left actually support limitations on the right to bear arms specifically, denying that right to an accused wife-beater and holding that machine guns don’t qualify for constitutional protection.

All that Ashcroft urges is that the Second Amendment enjoy the same deference generally afforded to the First, which may be restricted only in narrowly tailored ways to achieve a compelling state interest. In other words, the most common justifications for antigun legislationpolitical demagoguery and statist ideologywould no longer be sufficient.

That prospect has gun-control enthusiast terrified. Politically and legally, it would leave them completely disarmed, which is as appropriate as it is ironic. Now they know how it feels.


Chris Weinkopf is an editorial writer and columnist for the Los Angeles Daily News. To read his weekly Daily News column, click here. E-mail him at chris.weinkopf@dailynews.com.


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