Sat, Oct 07, 2017 - Page 9 News List

What US’ second amendment says

Its words have fueled centuries of debate — but not until 2008 did the US Supreme Court clearly back an individual’s right to keep a weapon at home for self-defense

By Alan Yuhas  /  The Guardian

Illustration: Constance Chou

The second amendment has become a badge and bumper sticker, a shield for gun activists and scripture for much of the US right, but like other cherished texts, it is not as clear as many make it out to be.

The amendment reads: “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 most of the republic’s lifespan, from 1791 to 2008, those commas and clauses were debated by attorneys and senators, slave owners and freedmen, judges, Black Panthers, governors and lobbyists.

For some, the militia was key; for others the right that shall not be infringed; for yet others, the question of states versus the federal government.

For the most part, the US Supreme Court stayed out of it.

“Americans have been thinking about the second amendment as an individual right for generations,” said Adam Winkler, a law professor at University of California, Los Angeles, and author of Gunfight: The Battle over the Right to Bear Arms in America. “You can find state supreme courts in the mid-1800s where judges say the second amendment protects an individual right.”

However, for the 70 years or so before a US Supreme Court decision in 2008, he said, “the supreme court and federal courts held that it only applied in the context of militias, the right of states to protect themselves from federal interference.”

In 2008, the US Supreme Court decided the District of Columbia versus Heller 5-4, overturning a handgun ban in the city.

Judge Antonin Scalia wrote the opinion in narrow, but unprecedented terms — for the first time in the nation’s history, the US Supreme Court explicitly affirmed an individual’s right to keep a weapon at home for self-defense.

Justice John Paul Stevens dissented, saying the decision showed disrespect “for the well-settled views of all of our predecessors on the court, and for the rule of law itself.”

Two years later, he dissented from another decision favoring gun rights, writing: “The reasons that motivated the framers to protect the ability of militiamen to keep muskets, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today.”

This fight over history, waged by Supreme Court justices and unlikely allies and foes, goes all the way back.

“People look at the same record and come to wildly different conclusions about what the view was in the 18th century in the 19th century,” said Fordham University law professor Nicholas Johnson, who argues against Winkler’s view of 20th-century case law.

Attempts to parse “original” intent go all the way back to the revolution and its aftermath, when the nation’s founders bickered about what exactly they were talking about.

Roger Williams University law professor Carl Bogus has argued that James Madison wrote the second amendment in part to reassure his home state of Virginia, where slave owners were terrified of revolts and wary of northerners who would undermine the system.

“The militia were at that stage almost exclusively a slave-control tool in the south,” he said. “You gave Congress the power to arm the militia — if Congress chooses not to arm our militia, well, we all know what happens.”

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