Thursday, October 04, 2007

Jonathan Turley Reads Constitution, Is Shocked to Find 2nd Amendment

Jonathan Turley, a very high profile constitutional scholar and dedicated liberal, this morning confessed to reading the Constitution and finding within its black letters a previously undiscovered 2nd Amendment. To Turley's chagrin and credit, he acknowledges his discovery in USA Today's A Liberal's Lament: The NRA Might Be Right After All

This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is "the right of the people to keep and bear arms." Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District's decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.

The Framers' intent

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "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." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

Turley's search for meaning was undoubtedly made more difficult by the lack of penumbras surrounding the enumerated right and by the excess of political agendas clouding the amendment.

His most compelling lines form the strongest argument in favor of the Second Amendment meaning exactly what it says:

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press.

Can it be any more clear?

Jonathan Turley' late conversion is as welcome as Saul's and we can look forward to many more to come during this year of Supreme Court decisions.

RELATED LINKS: What on Earth Are D. C. Politicians Smoking? Hallucinating About Gun Control in Parker
The Most Important Gun Rights Court Decision… Ever!


Anonymous said...

One thing to mention. The Constitution didn't create a right to keep and bear arms, or any other right. It recognized preexisting rights and forbade the federal government from interfering with them. There was a serious discussion about enumerating some of these preexisting rights; the feeling was that by specifically naming some of them, ones that weren't named would be diminished. Preventing that was the purpose of the 9th Amendment.

Bob Leibowitz said...

Very solid points.

Anonymous said...

Men have Rights. All else are Powers delegated to them for the ordered function of our society. The misconstruction of language that had this nations top lawyer state under oath, "It depends what the meaning of 'is' is." has confounded the true definition and purpose behind our Constitution and its constitutional Republic.

In allowing Law Professor Turley and his friends to decide the meaning of plain language, we are abrogating our rights, little by little, until eventually we will be under a One World Order of Socialism writ large. Ben Franklin's warning, "A Republic, if you can keep it" was prescient for our time. I fear it will take more than some elections or court decisions to return to the correct paths as laid out in our constitution; indeed a new revolution will be necessary if our future is to be reclaimed.

Thankfully, it seems that may now be possible with Turley admitting, as did Tribe and Dershowitz, that We the People do have the full Right as enshrined in the Second Amendment. Buy guns and ammo -- you'll need them.

Bob Leibowitz said...

Progress. Small but important steps.