Tahlequah Daily Press

March 3, 2014

Second Amendment among the most contentious

Staff Writer

TAHLEQUAH — Americans may cherish the freedoms enumerated in the Bill of Rights of the U.S. Constitution, but they often disagree on interpretation. And one article, more than any other, has been the subject of debate in recent decades.

It’s the Second Amendment, short and seemingly to the point: “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.”

Due to recent rulings by the Supreme Court, the view that the Second Amendment of the U.S. Constitution allows private citizens to own firearms carries more weight these days. But disagreements arise as to what kinds of firearms can and should be owned, and for what purpose they may be used.

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said that at one time, the Supreme Court  interpreted the Second Amendment as referring to state militias or today’s Army National Guard. That changed in 2008.

“The main concern of the [Bill of Rights] authors seems to be the avoidance of the necessity of a standing professional army,” Savage said. “They thought them a danger to liberty and wanted to substitute a citizen army which kept weapons in their homes.”

In the 1939 case, U.S. vs. Miller, the Supreme Court rejected a legal challenge to the National Firearms Act of 1934 as a violation of Second Amendment rights.

But in 2008 in a 5-4 decision, the high court struck down parts of the Firearms Control Regulation Act of 1975 as unconstitutional in District of Columbia vs. Heller. It ruled handguns as arms as defined by the Second Amendment, and said citizens of a federal enclave could not be required to keep rifles and shotguns unloaded and locked or disassembled.

The ruling was essentially extended to the states in the 2010 case of McDonald vs. Chicago.

However, on Feb. 24, the court refused to hear a pair of Second Amendment appeals filed by the National Rifle Association. It left in place a 1968 federal law prohibiting federally licensed gun dealers from selling handguns to anyone under 21, and a Texas law prohibiting people under 21 from carrying a firearm in public.

State Rep. Mike Brown, D-Tahlequah, said D.C. vs. Heller extended the rights of ownership, but was not iron-clad.

“In that same ruling, the Supreme Court suggested the U.S. Constitution does not prohibit regulations, such as those not allowing criminals or individuals with mental illnesses to possess firearms,” Brown said. “The decisions [Feb. 24] demonstrated that.”

Savage agreed the wording of the Second Amendment is vague enough to permit some oversight.

“The plain meaning of the words used in the amendment present a couple of problems,” he said. “It clearly says that this ‘militia’ shall be ‘well-regulated.’ What kind of regulations are allowed on the private ownership of guns? It doesn’t say. So there is a lot of wiggle room there for courts to allow various sorts of regulations.”

There is also disagreement as to what the Founders would think of “arms” today.

“The authors of the amendment probably meant musketry,” Savage said. “Today we have nuclear arms, tanks, surface-to-air missiles. Do private citizens have a right to keep and bear all kinds of arms? Surely not, but where is the line? Again, the courts will have the final say.”

Ammunition, too, has become a source of contention. Musket balls and such would likely have been the only item the Founders considered. Justice Antonin Scalia, who wrote the majority opinion in Heller, has suggested certain limitations on the individual right to keep and bear arms may be “permissible” – which could include certain types of ammo – but that it would be up to the high court to decide.

Colonial Americans had many reasons to bear arms: for self-defense, to repel foreign aggression, to assist law enforcement, to deter government tyranny and to arm militias.

Before the Revolution began, British Parliament, wary of arms stockpiling among colonists of questionable loyalty, imposed an arms embargo against the American colonies. There were efforts by the British to confiscate militia stockpiles, but less evidence of taking firearms from individuals. The Second Amendment can be traced to the English Bill of Rights of 1689, which restricted the right of the Crown to to interfere with private arms ownership.

In whatever fashion the Second Amendment is applied today, writings of the Founders suggest many believed the natural right of self-defense was inseparable from the right of a person to own a firearm.

Thomas Paine wrote: “The supposed quietude of a good man allures the ruffian; while on the other hand arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside.”