Constitution says gun rights
belong to 'the people'

December 11, 2006

By Jim Coombe

Doug Pennington's take on the Second Amendment is no longer accepted in mainstream legal scholarship.

To believe his claim that the amendment only protects the National Guard, one would have to believe that "the people" in the amendment somehow refers to the federal government (since the Guard can be federalized with one stroke of the presidential pen) while "the people" in other amendments references an individual right.

You would also have to conclude that the purpose of the Second Amendment is to give the government "rights" when the founders saw rights as the province of individuals.

That is why no reputable legal scholar even argues the states'-rights position, for to do so is to claim one of the 10 amendments comprising the Bill of Rights exists to delegate the government power rather than recognize rights.

Secondly, while it is true that some courts still cling to this nonsensical interpretation because of precedent, the origin of this outcome-based legal interpretation was based in racism and xenophobia. In the early part of the 20th century, politicians and the upper class became concerned with blacks and immigrants possessing handguns. Later, it was Irish and Italian gangsters during Prohibition. Courts realized they had to misinterpret the Second Amendment in order to allow laws disarming these groups to remain.

These interpretations, and the FDR Administration's expansion of the commerce clause to create the necessary federal power to regulate guns, essentially destroyed the original intent of the Second Amendment but was clearly not kosher constitutionally.

Finally, Pennington and other anti-rights coalition members ignore the Ninth Amendment (covering "unenumerated rights") completely.

Even if their incorrect interpretation of the Second Amendment continues to be followed by the courts that are mired in precedential deference, the Ninth Amendment and the 10th Amendment (powers reserved to the States or the people) - if interpreted honestly - prevent gun bans on a federal level, and no one can honestly point to any language in the part of the Constitution (that actually grants powers to the government) that delegates arms regulation to Congress.

Jim Coombe of Mason is an attorney.

OTHER RESPONSES:

In his “Your Voice” column titled “Gun Lobby has misinformed public,” published Dec. 4, Doug Pennington is himself guilty of misinformation. Repeating the oft-quoted canard that the Second Amendment applies only to State organized militias, he ignores the following facts:

In the Bill of Rights, any rights recognized as belonging to individuals are referred using the word “people.” Groups and governments don't have rights. They have powers and duties, but not rights. In the 10th amendment this is clearly spelled out: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

I assume that he also believes that the 1st, 4th, 5th, and 6th Amendments are collective rights, and are not individual rights?

If any person doubts that the founding fathers intended the 2nd Amendment to be an individual rather than collective right, they are willfully ignoring a huge collection of letters and scholarship documenting the Founders’ intentions.

An overwhelming majority (44) of States, including Ohio, have as explicitly included as part of their State constitution the right of the people to keep and bear arms for their defense. From the Ohio State Constitution Article 1 Section 4:

Ҥ 1.04 Bearing arms; standing armies; military powers (1851)
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. “

This has been affirmed by numerous state court cases including the recently decided (Nov. 30) Washington Supreme State court case State vs Williams, and was even affirmed locally in the Ohio Supreme Court case originating here in Hamilton County (Klein vs Leis, 99 Ohio St. 3rd 537 (Sept, 24th, 2003). In their ruling the Ohio Supreme Court found that while carrying a concealed weapon is not a constitutional right, the fundamental right for individuals to bear arms (openly) is protected under the State Constitution.

As for U.S. vs Miller (1939), this case was primarily regarding the legality of a then-illegal (and still illegal) sawed-off shotgun, not the fundamental right to keep and bear arms.

His characterization of the following is also incorrect: “The idea that individuals could have a right to arm themselves against the government violates even a lay reading of the treason clause of Article III, Section 3 of the U.S. Constitution. Is the Second Amendment really a self-destruct button? Of course not.”

None other than Noah Webster said the following regarding the individual right to bear arms as a check against the rise of oppressive/corrupt government:

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”

If Mr. Pennington believes that the right to keep and bear arms pertains only to the militia or National Guard he might be interested in the following definition of militia currently found in the United States Code Title 10, Chapter, 13, Section 311:

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are:

- (1) the organized militia, which consists of the National Guard and the Naval Militia; and

-(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

As recognized the U.S. code every able-bodied man between 17 and 45 is a member of the unorganized militia, and thus even under Mr. Pennington’s narrow interpretation possess the right to keep and bear arms for their own and the Nation’s defense.

Jeff Riley
Batavia

Is the 'right to bear Arms' is an individual right or a collective right? To put into context the intent and meaning of the times, a quote by George Washington, our first president, said "Government is not reason, it is not eloquence--it is a force!. Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action." Thomas Jefferson once said, "A little rebellion now and then is a good thing."

It is also widely held that the Bill of Rights came to be because George Mason of Virginia, Edmund Randolph of Virginia, and Elbridge Gerry of Massachusetts refused to sign the Constitution because they were fearful of an all-powerful government and wanted a bill of rights to protect the rights of the people. When it came time for the states to ratify the Constitution, a lack of bill of rights was the primary sticking point.

The word 'people' was not randomly used, but rather explicitly used to protect individual rights and freedoms - thus, the Bill of Rights were added to the Constitution to protect individual rights. To defer a separate meaning from the 'rights of the people to bear Arms' would also have to be applied to all other amendments that refer to ‘the people', which would include the 1st, 4th, and 10th amendments.

Jim Kunysz
Loveland

In response to Doug Pennington’s article, “Gun lobby has misinformed public,” I can only observe, after a recapitulation of the facts, that he is the one who is who is misinforming the public. The Second Amendment reads as follows: “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.”

Sadly, he is afflicted with a myopic problem that is prevalent in people of his ilk, i.e.: they seem unable to read past the first part of many sentences, particularly if that additional information is damaging to their intentions. This is of course the case here with the second half of the 2nd Amendment, which finishes with: “the right of the people to keep and bear arms shall not be infringed.”

Mr. Pennington goes on to erroneously claim that somehow the U.S. v. Miller decision determined that the right to bear arms was simply a collective guarantee, rather than an individual right. He either has never read the decision or he is misrepresenting it. United States v. Miller was about sawed-off shotguns and the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns.

One of several ways the Court evaluated the case was to see if a militia consideration was applicable. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.''

The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force (individual citizens) that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Therefore, ''In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument (a sawed-off shotgun). Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''

When the Amendment was written, all males had guns and those between 16 and 60 were considered to be available for call-up as militia, in the event of a national emergency. The amendment addressed militia and it also addressed and guaranteed the right of the people to keep and bear arms. Many prominent personages of the time, including George Washington, wrote of the importance for the people to always retain their arms.

Mr. Pennington and his cronies do not suffer from dyslexia, they suffer from dishonesty.

Rex Murphy
West Chester

As a frequent visitor to Cincinnati I frequently read the Enquirer. On Dec. 3, a column appeared by Doug Pennington which was long on rhetoric and short on facts. His attempt to cast the Second Amendment’s “the right to keep and bear arms” of the as only a collective right is just flat out wrong. His citing of several courts decisions is wrought with problems as well.

Many appellate court decisions have been overturned over the years – especially those on the Ninth Circuit, which has been overturned more than any other. Furthermore, the Supreme Court has also overturned previous decisions; both constitutional ones, such as Bowers, and unconstitutional ones such as Dred Scott. So ultimately what is left is to find out what the founders had to say about the “Right to Keep and Bear arms.”

Patrick Henry stated: “The militia, sir, is our ultimate safety. We can have no security without it . . . The great object is, that every man be armed. Everyone who is able may have a gun.”

John Adams, our second president, said: “Arms in the hands of private citizens may be used at individual discretion…in private self-defense.”

Samuel Adams, host of the Boston Tea Party, said: “…and that said Constitution e never be construed to infringe on the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable from keeping their own arms.”

In the Federalist #46, James Madison, our fourth president and chief architect of the Constitution, said: “Besides the advantage of being armed, which Americans possess over the people of almost every nation…”

George Mason said: “To disarm the people is the best and most effective way to enslave them.”

Justice Joseph Story, who was appointed to the Supreme Court by Madison at the age of 32, said: “The right of the citizens to keep and bear arms has justly been considered, as the palladium(safeguard) of the liberties a Republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers …”

In addition, we need to remember that the wholesale gun confiscation that took place in England and Australia was preceded by registration. Rebecca Peters, the architect behind both in Australia, lied when she said that registration wouldn’t lead to confiscation. Now George Soros has brought her to the United Nations to frame a worldwide treaty to ban our guns. It is time for the Brady center to admit its lies.

Douglas H. Wellman Sr.
Fort Wayne, Ind.

The gun lobby's interpretation of the 2nd Amendment is indeed the way the Founders intended it to be intepreted. Doug Pennington is correct in that the anti-gun movement's interpretation (no individual right) is consistent with the way recent courts have interpreted it. This makes the situation analogous to the courts' tolerance for Jim Crow segregation and denial of the rights of blacks a hundred years ago, and makes the gun lobby analogous to the pre-LBJ NAACP.

The current misinterpretation by the courts is the reason I cannot trust the government to register my guns. In that regard, it differs from the situation regarding registration of automobiles.

In fact, registering guns like automobiles would be a big coup for the pro-gun movement. Think about it -- no licensing or registration is needed merely to own a car, to carry it from place to place (on a trailer), or to use it on private property. What licensing and registration offers is permission to drive the car on the public roads (analogous to carrying one's loaded handgun for protection in public).

A driver's license is available to most all adults, is respected across all 50 states and most foreign countries. Only when people misuse their license is it taken away; never is one required to cite a need to drive.

Yes, let's do the same for guns.

Frank Silbermann
Memphis, Tenn.

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