| Are you up on the English Declaration of Rights and the arguments that accompanied its formulation? There was old Heneage Finch making the case for the right to own guns, in the event they should be needed to protect not against urban terrorists, but against the Crown, in 1689. If you think that going back that far, when you're trying to decide the constitutionality of gun control laws, is pretty idle stuff, at least you'd agree to jump forward 100 years. And to ask, what did James Madison have in mind when he sponsored the Second Amendment, with its 27 fractious words on which scholars and judges and legislators and editorialists and Charlton Heston chew away, year after year?
Gary Rosen, writing for Commentary magazine (September), lines up the arguments for and against gun control and the data that support these. But he suggests that moderate impositions on gun-owning are, really, defensible even under an individual-rights interpretation of the amendment -- on the grounds that supervisory laws designed to serve a general purpose do not necessarily vitiate specified rights (zoning and construction-permit laws don't seriously undermine the right to private property).
But William Glaberson, in a nifty roundup for The New York Times (Sept. 21), reminds us how acute are the ongoing academic controversies. Consider James Madison. People want desperately to unearth what exactly he had in mind in sponsoring the language of the amendment and averring "the right of the people to keep and bear arms." Focus on this little seedling of academic and judicial controversy:
1. An essayist called Tench Coxe writes a letter to Madison complimenting him on the then-recent adoption of the Bill of Rights.
2. Madison writes back and says, in effect, thanks a lot.
3. Now Mr. Coxe was an ardent believer in the individual-right interpretation of the Second Amendment. So, say some scholars,
4. Doesn't the whole thing suggest that Madison was also?
No, it does not, say the gun controllers. Madison intended nothing more than to thank Tench for writing in and approving of the Bill of Rights. Madison did not think to take the opportunity to say where his version of the Second Amendment and that of Tench Coxe differed.
What most recently triggered the debate was a decision by Judge Sam R. Cummings, a federal district court judge in Texas who last year dismissed a gun-possession charge against a doctor on the grounds that the law under which he was being pursued was unconstitutional. The judge wrote: "A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right." Continued... |