Noting Sen. Barack Obama's recent statement that he considers the Second Amendment an individual right -- setting aside for a moment his pro-gun control record and defense of the D.C. handgun ban -- ABC's Jan Crawford Greenburg dismissed private gun ownership as constitutionally protected, holding instead that the "orthodox" view defends only a state's right.
Here's the relevant portion from a February 15 entry at Greenburg's Legalities blog (emphasis mine):
A day after the tragic shootings at NIU, Barack Obama has revealed that he thinks the 2nd Amendment protects an individual’s right to own a gun.
That sounds surprising—and certainly not what you’d expect from someone with the Senate’s most liberal voting record.
Here he is, weighing in on one of the biggest and most contentious cases the Supreme Court will hear this term, a case that finally will answer one of the great unresolved question constitutional questions: Does the 2nd Amendment protects a person’s right to own a gun, or does it merely protects a state’s right to assemble a militia?
By embracing the individual rights approach, Obama is bucking gun control groups and states like New York, which have taken the more orthodox position that the 2nd Amendment only protects a state’s right—and that cities like Washington, D.C. can therefore ban all guns if they choose.
Of course, the notion that the 2nd Amendment protects an individual's right to keep and bear arms is not only orthodox and consistent with the Bill of Rights defining the rights of the "people" as individuals, it's hardly an interpretation limited to right-wingers.
Liberal constitutional scholar Laurence Tribe, for example, believes the 2nd Amendment enshrines an individual right to keep and bear arms. From that notorious right-wing rag the New York Times (May 6, 2007; emphasis mine):
There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.
Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.
“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”
The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.
—Ken Shepherd is Managing Editor of NewsBusters
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Liberals and Guns
February 15, 2008 - 18:14 ET by planetrepublicanI posted this in an earlier post at NB but I am getting annoyed at the standard-liberal-line the drive-bys always go to when some whack-job kills people...
Why is it that when someone like Jane Fonda uses the "C" word on the
public airwaves that there is not a call to repeal the 1st amendment?
The 2nd amendment is a constitutional right guaranteed by the founding
fathers through the bill of rights. Now the lefty's are parsing the
words, ala Bill Clinton style, to determine what "the right of the
people to bear arms" means. Why are these words in question? Now I am
not a lawyer but check out the other amendments that use the words "the
people":
From the 2nd Amendment: "...the right of the People to keep and bear Arms, shall not be infringed.".
From the 1st Amendment: "...or the right of the people...".
From the 4th Amendment: "The right of the people to be secure in their
persons,".
From the 9th Amendment: "shall not be construed to deny or disparage
others retained by the people".
How did it come to this, where left-wing journalist are asking
questions of, and demanding that politicians take away only ONE (1) of
our rights, not the 1st, or the 4th, or the 9th, just the 2nd??!! How
utterly absurd and dishonest this truly is. I attribute this kind of
thinking the the leftward tilt the hippies and their followers made in
the 1960's. But it doesn't matter. The fact is that the drive-by media
pushes this bogus agenda whenever some crackpot commits an autrocity,
usually in a so called "gun free zone", another absurity in it's own
right (if I am going to kill you with a gun do you think I am going to
give 2 cents for your stupid gun law???). The fact that some of us
carry guns deters crime, stops killers like this from carrying out
their despicable acts. Mitchell can shove her report where the sun
don't shine. AND if Obama and/or Hillary want to take up the gun
control banner again, I am going to give the NRA $500 then go out and
buy another hand-gun, 1 because I collect guns and, 2 because I know it
bugs these liberals.
Good point.
February 16, 2008 - 05:46 ET by WhoIsJohnGaltIF we are to assume that the reference to "the people" in the second amendment refers to the people as a whole, and not the individual, then the rest of the constitution does not make sense when using the same term, "the people".
If anyone doubts that the second amendment does indeed mean that individuals should bear arms, and is not referring to standing armies or states rights to assemble their own militia exclusively, then take the time to read Federalist 46 by James Madison.
The Federalist papers were written by the founding fathers to "sell" the idea of a federal government and the constitution to New Yorkers.
http://www.foundingfathers.info/federalistpapers/fedi.htm
Jan Crawford Greenburg
February 15, 2008 - 18:26 ET by Lame CherryJan Crawford Greenburg goes to bed every night in her high priced, high security, NYPD blue life on the line home due to the fact that an entire up state New York along with Pennsylvania is armed deer hunting communities thinning out the problems created by the mob of rats in New York.
*HIC IACET ARTORIVS REX QVONDAM REXQVE FVTVRVS
ALWAYS AN INDIVIDUAL RIGHT
February 15, 2008 - 18:45 ET by Der AlteThe 2nd Ammendment is an individual right! That is why it was part of the Bill of Rights in order to pass the Consititution. What don't these liberal idiots understand about that? The Founding Father's (you know, those old white guys) knew that privately owned guns in the hands of citizens, who were expected to provide for the defense of the community from a tyrannical goverment, played a pivotal role in obtaining independence. Therefore, they were expected to do the same after the country was established. It has its basis in common law that the citizen, meaning "us" are responsible for our own security. I will be damned if I let any pointy headed liberal newsbabe tell me otherwise!
Constitution says it's an
February 15, 2008 - 18:56 ET by wiwfConstitution says it's an individual right! You just need to get you gun-free zones outta here.
The Rocky Mountain Collegian: Illustrating Idiocy
Yes and no, States Rights
February 15, 2008 - 19:49 ET by dscottYes and no, States Rights were also spoken of in both the 2nd and 10th Amendments but definitely not to the exclusion of individual rights. Even if you could somehow claim the 2nd Amendment had more to do with the State's responsibility to maintain an orderly militia, their use of the National Guard does not invalidate gun ownership which was presumed in order to man the militia in the first place. Even if you could claim it solely referred to a militia, you still have gun ownership protected under the 9th Amendment. No one can dispute Americans owned guns at the founding of the Republic and no one can dispute Americans owned guns right up until the Civil War some 80 years later. So what we have here is a group of people who want to abrogate the civil rights of the people, I call that an assault not only on the Constitution but on the freedom of the people. For those who wish to enlighten themselves as to what the amendments mean, I suggest context from the Constitution itself:
The Bill of Rights: A Transcription
The Preamble to The Bill of Rights
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html Lord Sidious / Darth Vader 2008 Long Live the Empire! Come to the Dark Side, it is your Destiny.
what's orthodoxy got to do with it??
February 15, 2008 - 19:00 ET by wizardjrMuch like the constantly repeated "The argument is over because of the scientific consensus...", this throw away line about the "orthodox view" is meant to chop off any dissent. There's only one problem - view points are like belly buttons, everyone has one but they mean nothing when it comes to reading the words written on the constitution. As noted above, even the liberal constitutional scholars (the honest ones) have come to the conclusion that the words in the second amendment grant this right to "the people", meaning individuals, not to some supposed government entity.
wizard, I made pretty much
February 16, 2008 - 07:23 ET by motherbeltwizard, I made pretty much the same point further down. "Orthodox" means "established." But the second amendment is clear: "....shall not be infringed." So that is actually the "established" interpretation.
the more orthodox position that the 2nd Amendment only protects a state’s right—
That was never stated, nor has it ever been determined to be the founders' intent. I believe the author meant it as the more conservative (as opposed to liberal) position....etc.
If it was intentional, to say that the "established" position is that it only protects a state's right..is disingenuous at best, downright false at worst.
There can be no actual disagreement or argument
February 15, 2008 - 19:09 ET by c5thenThe language is extremely clear and concise, just as the founders intended.
" 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."
This could easily be re-arranged as: "The right of the people to keep and bear arms shall not be infringed because a well regulated Militia is necessary to the security of a free State."
The position of the dependant clause does not change the meaning of the sentence.
The Constitution speaks to the rights and authority of three seperate entities: The Federal Government in which it lays out it's abilities and things it is forbidden. The States, who are soverign entities in themselves and who delegate some of their powers and authority to the Federal Government as laid out in the document and The people, all the individuals taken as a collective, who are the ultimate soverigns and delegate some of their powers and authority to the States through their respective Constitutions.
Throughout the document the founders were very clear in specifically mentioning the entitiy that they were talking about, be it Congress, The executive, the Judiciary, the Senate, the States or the People.
So where the document says The States, it is talking about the several States, where it says Congress it means the combined House and Senate and where it says The People it is talking about individuals in the collective. The State that is mentioned in the 2nd amendment is the United States of America as a soverign State. This can not be confused with The States, plural, refering to the several soverign entities which collectively make up the United States of America.
The day that "politician" became a career choice is the day we started losing the Republic. Let's get it back! Alan Keyes '08.
Founders' words
February 15, 2008 - 22:46 ET by masslibertarianA constructionist reading of the 2nd amendment would also indicate that the right to keep and bear arms recognized by the founders preexisted the constitution. Kind of like those inalienable rights granted by the Creator acknowleged in the Declaration of Independence.
The 2nd amendment does not say "A well regulated militia ... Congress shall make no law prohibiting the people from keeping and bearing arms" (to paraphrase the first amendment 'free exercise' clause). It says, "...the right of the people to keep and bear arms shall not be infringed." Think "the God-given right of the people to keep and bear arms shall not be infringed by Congress."
This is very similar to the first amendment pre-supposition that there exists a freedom of speech that shall not be abridged by Congress and the fourth amendment construction that pre-supposes one has the right to "be secure ... against unreasonable searches and seizures."
That last comma in the 2nd amendment gives people fits, but Xerox wasn't around in 1789. There exist versions of the amendment both with and without that comma because people were making manual copies of the BoR. It's an error that crept in, and it doesn't make any sense there in the first place (see jnorv below). In a legal setting, this might invoke the parol evidence rule at best, and the anti-gunners certainly don't want to go there ("No freeman shall ever be debarred the use of arms" ~ Thomas Jefferson, etc.)
As far as the introductory clauses go, IMO the founders might just as well have said something like, "The sun rising in the East, illuminating the Red Coats of King George's soldiers in the sights of the Militia, the right of the people to keep and bear arms shall not be infringed." The only operative part of the 2nd amendment that recognizes a right, like the rest of the Bill of Rights, is "the right of the people to keep and bear arms shall not be infringed." The rest is just fluff.
The only way to read the 2nd amendment as not guaranteeing an individual right is to know what it says beforehand, form an opinion that it really doesn't say what it does because you don't want it to, and ignore it from then on (picture fingers in ears saying la-la-la-la).
Without having read all of the comments...
February 16, 2008 - 04:43 ET by on-the-rocksI guess another way of stating the first sentence - "A constructionist reading of the 2nd amendment would also indicate that the right to keep and bear arms recognized by the founders preexisted the constitution." - is that the right of self defense is "natural law", granted by God and simply defined by the Second Amendment as were the other rights. In other words, it is a matter of simple logic that we have the right to defend ourselves and our families. [Yes, I know that simple logic escapes many on the Left.]
I wonder if we could gain ground against the anti-gun Left by constantly referencing the "Right of Self-defense", i.e., the defense of one's self, family, and home - and the need for the tools to exercise that right. No, we won't sway the hard Left, but there are many people that get caught up in the MSM-driven emotional arguments against gun ownership and a consistent, sober, cogent argument in favor of the natural right of Self-defense might sway some of "Middle America".
In response to any further calls for gun prohibitions, I would suggest that a gun ban MIGHT result in a decrease in these sorts of mass shootings, but other types of crimes WOULD EXPLODE, e.g., home invasions, car-jackings, armed robberies of individuals, armed robberies of businesses, etc., as the criminal class would no longer have to fear the armed citizen.
As for Barack Obama's purported support for the Second Amendment as an individual right, if it is true, will he continue his support when pressured by the political Left and the MSM? Or will he retreat to safety of "the orthodoxy", especially if pressed by Hillary?
My own interpretation
February 15, 2008 - 19:14 ET by 10ksnookerThe Bill Of Rights doesn't apply to liberals ... Open season starts now.
which have taken the more
February 15, 2008 - 19:31 ET by motherbeltwhich have taken the more orthodox position that the 2nd Amendment only protects a state’s right—
M-W online defines "orthodox" as conforming to established doctrine.
So these liberals have taken the 2nd Amendment and "established" what it meant, over 100 years after it was written? Gee, I guess we were just foundering until then, when they "established" what it means. Nevermind that the argument still goes on....they have "established" its meaning. Everyone who disagrees is out of touch.
It's kind of funny. All the
February 15, 2008 - 19:32 ET by ahusserIt's kind of funny. All the other rights in the "Bill of Rights" are individual rights except for the 2nd?!!? Doesn't make much sense, but then liberals don't think they only emote. They only want to keep the rights they like. The founding fathers also thought it so important they made it second. Somehow libs believe that if the guns go away then the icky bad men will disappear and we all can live in peace and harmony and sing kumbayah.
Nail on the head, ahusser,
February 15, 2008 - 19:41 ET by wiwfNail on the head, ahusser, nail on the head.
The Rocky Mountain Collegian: Illustrating Idiocy
Exactly which part of The
February 15, 2008 - 19:45 ET by R D HelmExactly which part of The right of the people to keep and bear arms shall no be infringed does Jan Crawford Greenburg not understand?
Smile. It is not the end of the world.
ABC's Jan Crawford
February 15, 2008 - 19:49 ET by Jack BauerI really can't be bothered to check (mainly because I'm sure I know the answer) but hands up those who bet Greenburg believes abortion is "constitutionally" protected despite the fact it doesn't appear anywhere in the U.S. constitution.
Unlike, oh, just at random.. the "right to bear arms" which does actually appear in the constitution.
Liberals tend to think that the US Supreme Court
February 15, 2008 - 20:02 ET by c5thenTrumps the Constitution (when the decision is one they agree with).
What they HATE to hear is that just as the Executive can issue an unconstitutional order and Congress can pass an unconstitutional law, the judiciary can render an unconstitutional decision.
The Constitution is above all three branches of Government.
The day that "politician" became a career choice is the day we started losing the Republic. Let's get it back! Alan Keyes '08.
Right to honest football also in Constitution!
February 15, 2008 - 20:29 ET by Jack BauerIncluding liberals masquerading as Republicans
Amazing ... something else in the U.S. Constitution no one ever realized till Arlen found it.
Jack, it's that living, breathing document thingy. Again.
February 15, 2008 - 21:04 ET by R D HelmSmile. It is not the end of the world.
You might say the second
February 15, 2008 - 19:48 ET by rbosqueYou might say the second amendment saved the U.S.
"You cannot invade themainland United
States.
There would be a rifle behind each blade of grass."
--Japanese Admiral Yamamoto, 1941
Exactly, as long as our
February 15, 2008 - 20:08 ET by dscottExactly, as long as our enemies know there are 80 million gun owners with 200 million guns they know any attempt at invasion would give them Afghanistan in spades. Why do you think the Russians bought into the MAD nuke policy themselves? They knew in the event of war with the US, they had to destroy the entire country since invading it was suicidal and not invading it leaving the manufacturing base intact meant they would be inevitably defeated just as Germany was. Gun ownership by the citizenry makes the invasion of the US an impossibility. The upshot is if liberals ever were to be successful at banning guns in this country, the US looses it's invulnerability to invasion making it more likely our enemies will not fear to attack thinking they had a chance for success. Only a fool engages in war with no chance of success.
Lord Sidious / Darth Vader 2008 Long Live the Empire! Come to the Dark Side, it is your Destiny.
Original version of 2nd Amendment
February 15, 2008 - 20:03 ET by jnorvSee: http://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=001/llsj001.db&recNum=93
Notice that 2 commas are missing which changes the meaning.
jnorv
Greenburg and all the rest
February 15, 2008 - 20:14 ET by ConservativeRexGreenburg and all the rest can argue until the cows come home for all I give a care.
Bottom line, are we ever going to let them have access to our guns? Not as long as we are still alive, not ever, never. Case closed.
Obama and Gun Control
February 15, 2008 - 22:00 ET by planetrepublicanWhat did Super-O have to say about gun control: 2 things, one good, one bad…
“I think there is an individual right to bear arms, but it’s subject to
commonsense regulation” like background checks, he said during a news
conference. Here we go, “commonsense regulation”, watch it, wait for
it, here it comes: At his news
conference, he voiced support for the District of Columbia’s ban on
handguns, which is scheduled to be heard by the Supreme Court next
month. So here we have a “New Jersey” style of gun rights AND control,
allow concealed carry permits but don’t let anyone get one. How
cleaver. If Super-O was for gun rights like he says, he would not be in
favor of DC’s ban on guns. Plain and Simple.
Background checks
February 15, 2008 - 23:01 ET by masslibertarianHere's the money quote from an AP story about the NIU shootings: "Kazmierczak had a valid Firearm Owner's Identification Card, which is required for all Illinois residents who buy or possess firearms, authorities said."
I lived behind enemy lines in IL, too. It's one of the 2 states in the U.S. where one absolutely cannot get a concealed carry permit. I had a FOID card there and they did a background check on me just like they did on the NIU shooter. Chalk one more up for the liberals' notion of a risk-free life.
NIU, like Va Tech, was a "gun free" area. Worked great until there was some whacko there with a gun meaning to do someone harm. If one of the people mentioned in the AP story wasn't in the fetal position waiting to die but had instead pulled their legally concealed weapon, this incident would likely have been put down in moments with much less loss of life. If the shooter had known this was even a remote possibility, it may not have happened at all.