As NRA convenes in KC, Second Amendment debate intensifies
By RICK MONTGOMERY - The Kansas City Star
Date: 05/17/01 22:15
A contorted, 27-word sentence penned more than two centuries ago lingers and
swirls like gun smoke, its meaning today debated more than ever.
As the National Rifle Association kicks off its annual convention today in
Kansas City, bringing as many as 40,000 members, new battle lines are
forming. And high above the center of the conflict hovers that one
confounding sentence -- the Second Amendment in the Bill of Rights:
"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."
For decades, federal judges have resisted jumping into America's argument
over exactly what that sentence means.
Now, a 1999 ruling out of Texas has made the Second Amendment a live ball,
one that could be bouncing its way to the U.S. Supreme Court. In the end,
scholars say, gun enthusiasts could score an unprecedented legal coup,
securing individual rights that courts have long been reluctant to grant
At issue is the so-called "second half" of the Second Amendment -- that part
about the right of the people. Does it mean any law-abiding individual has a
constitutional right to own guns?
The NRA gathering in Bartle Hall says yes, absolutely. The group plasters
"the right of the people to keep and bear arms" all over its literature and
T-shirts. And its president, Charlton Heston, calls that right "the most
rare and hard-won right in human history."
Gun-control advocates and many legal scholars say no, it is not an
individual right. And until recently they have had federal court rulings on
They favor the first half of the amendment, which they say merely guarantees
a "collective right" of states to defend themselves from federal tyranny by
maintaining an organized militia -- in modern-day parlance, a National
But U.S. District Judge Sam Cummings of Lubbock, Texas, single-handedly blew
a hole through that interpretation two years ago.
Ruling that the Second Amendment guarantees rights to individuals, and not
just to militias, Cummings dismissed federal charges against a physician who
had brandished a handgun in front of his estranged wife and their daughter.
The decision of Cummings, appointed by President Ronald Reagan to the
federal bench, was swiftly denounced in a brief filed by 52 legal scholars
who support gun control. Thought to be the first time a judge has used the
Second Amendment to overturn a federal law, the ruling is under appeal.
Future hinges on courts
At least two U.S. Supreme Court justices, Clarence Thomas and Antonin
Scalia, already have hinted at a readiness to expand the definition of the
Thomas has cited NRA-financed research and "a growing body of scholarly
commentary that `the right to keep and bear arms' is ... a personal right."
The political makeup in Washington this year also has the NRA breathing
easier. The group helped George W. Bush eke out a presidential victory and
has a longtime champion of gun rights, John Ashcroft, running the Justice
Still, the courts remain a huge concern. A barrage of liability lawsuits
against gun makers spurred Colt's Manufacturing Co. to abandon sales of
Should the high court weigh in on the side of individual rights, a flood of
new litigation surely would follow in the lower courts.
Some doubt that such a change would have much effect on the thousands of gun
laws already on local, state and federal books.
"No rights are absolute, and government would still have the larger
responsibility of protecting the health, safety and welfare of its
citizens," said Robert Spitzer, political science professor at State
University of New York and author of The Politics of Gun Control.
But Congress might have a tougher time passing new laws infringing on a
person's ability to trade, stockpile or carry firearms. At least, said one
NRA attorney, "they'd have to come up with better reasons."
Taken to the extreme, background checks could be ruled unconstitutional,
cities could be prevented from banning handguns, and felons could carry
weapons, though few observers on either side of the debate foresee the end
of gun control.
"If a re-interpretation doesn't change the landscape, it would certainly
change the conversation about gun legislation," said Dan Polsby, a law
professor at George Mason University. "The Supreme Court has managed to
dodge the issue for years."
He agrees with the NRA interpretation: "There's clearly an individual
right -- everything about the Second Amendment says so."
Jonathan Lowy, senior attorney for the Center to Prevent Handgun ***,
could not disagree more.
"The courts have said what the Second Amendment means: It gives states the
right to have militias," Lowy said. "To rule that individuals have a
constitutional right to possess guns could have tremendous implications. The
fact that some trial judge in Texas went that way doesn't signal a trend."
There are signs of a refocusing, however, such as the 2000 edition of
American Constitutional Law, edited by liberal scholar Laurence H. Tribe of
the Harvard Law School. It included for the first time a section suggesting
that the individual-rights argument should be taken more seriously.
"The federal government may not disarm individual citizens without some
unusually strong justification," Tribe wrote.
27 contentious words
What did James Madison and his constitutional collaborators mean to say with
those 27 words?
"The evidence of the framers' original intent is mixed," said Michael C.
Dorf, a vice dean at Columbia Law School and a supporter of gun control.
"But courts very rarely base their decisions solely on what the framers
meant to say in 1791."
There is little dispute that gun possession at the end of the 18th century
was an accepted, even necessary, way of life in the United States. And the
record makes clear that state legislators debating the ratification of the
Constitution insisted on the need for state militias, manned by private
citizens, to arm themselves as a balance against possible abuses of a
Less clear is the chorus for an individual citizen's right to lock and load.
When drafting the Bill of Rights, Madison relied in part on rights outlined
in state constitutions. Five of those constitutions mentioned militias but
not the right to bear arms. Three granted a collective right to bear arms
for the defense of the state. Two guaranteed individual rights, and four
mentioned neither militias nor the right to bear arms.
Madison's draft included both "a well regulated Militia" and "the right of
the people to keep and bear Arms." But the House of Representatives deleted
another clause designed to prevent governments from forcing pacifist Quakers
into militias: "No person religiously scrupulous of bearing arms should be
compelled to render military service."
Spitzer said the deleted clause suggested that the framers intended to focus
the Second Amendment on military issues. "All the debate was framed in
military terms," he said.
Law professor Dorf agreed: "Almost universally, when people talked of
`bearing arms' back then, it was in reference to the military, to soldiers
Individual-rights advocates counter that society widely accepts that most
other provisions of the Bill of Rights -- free speech, for example -- apply
to "the people" as well as the states.
"Civil libertarians support the individual rights recognized in the First,
Fourth, Fifth and Sixth Amendments," writes law professor David E. Vandercoy
of Valparaiso University. But with the Second, their "instincts are overcome
by our fear of one another."
Even as individual-rights litigation exploded in the 20th century, the high
court rarely touched the Second Amendment.
Its most direct attempt at interpretation, in 1939, resulted in a ruling
restricting sawed-off shotguns, mainly because a militia would not need
Justices might get another crack if the case of United States vs. Timothy
Joe Emerson reaches them.
The San Angelo, Texas, physician was indicted after pulling a Beretta pistol
out of a desk drawer and laying it on the tabletop when his wife, who had
filed for a restraining order, showed up at his medical office with their
Emerson had violated a federal law included in the *** Against Women
Act of 1994, prohibiting someone under a restraining order from even owning
Judge Cummings dismissed the charges and ruled that "a textual analysis of
the Second Amendment supports an individual right to bear arms." The case
now has been in the hands of a three-judge appellate panel for more than a
year, suggesting to many experts that a provocative decision is in the
"When gun legislation starts hurting ordinary people and not just criminals,
these cases are going to take more thought" in the courtroom, said Kevin
Jamison, a lawyer for the Western Missouri Shooters Alliance.
Regardless of what judges say, *** crime and public opinion will
continue to weigh heavily on lawmakers. Just last week, gun-control forces
in Washington embraced a new ally in U.S. Sen. John McCain.
The Arizona Republican is sponsoring a bill with Democratic Sen. Joseph
Lieberman of Connecticut that would mandate criminal background checks for
buyers at gun shows with at least 75 weapons on sale.
U.S. Rep. Dennis Moore of Kansas is co-sponsoring the House version. Moore
said Thursday that recent school shootings had "transcended partisan
politics. This isn't about Republicans and Democrats; it's about kids
"With every right comes responsibility," the Democrat said. "Convicted
felons, mentally ill people and unsupervised children don't have the right"
to keep and bear arms.