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Speakers armed with thoughts on right to bear arms

September 19, 2013

by John L. Carney, Shelbyville Times-Gazette
Reprinted with permission

Any discussion of the Second Amendment is sure to provoke spirited discussion, and this year's Constitution Day Forum at Motlow State Community College was no exception.

The annual event, attended by students and members of the public alike, brings together several Motlow faculty members to give their viewpoints on a Constitution-related topic.

Dr. David Bowlby, Dr. Lucy Craig and Dr. Scott Cook were the speakers at Motlow State Community College's Constitution Day Forum, held Tuesday on the school's campus in Moore County. This year's theme was the Second Amendment. (T-G Photo by John I. Carney)
On Tuesday, Dr. David Bowlby, assistant professor of history and political science; Dr. Scott Cook, associate professor of history; and Dr. Lucy Craig, associate professor of criminal justice, were the speakers. Each delivered a presentation and then the panel took questions from the audience.

Bill of Rights

Amendment II of the Constitution, one of the 10 amendments collectively known as the Bill of Rights, reads as follows: "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." The meaning and application of that amendment have been vigorously debated many times since the Bill of Rights was enacted in December 1791.

Bowlby began the forum with a discussion of the amendment's history. As early as the days of King Alfred in the Ninth Century, British citizens were considered to have a duty to serve in a citizen militia and were required to own a longbow for that purpose. By the 1600s, a standing British army had been formed. In the late 1600s, under William and Mary, the right of the people to own arms for the defense of home and family had been codified.

Bowlby said that in the process of drafting the Constitution and the Bill of Rights, the concepts of arms and liberty were closely linked. A standing army was thought to be a threat to liberty, and it was the job of the states to maintain a militia, which at the time meant all adult males owning firearms. Founding Father Patrick Henry was among those who endorsed the idea that every adult citizen should be armed.

This concept, said Bowlby, was different from the prevailing view in Europe, where standing armies kept the people in line, and was agreed upon by both federalists and anti-federalists.

Bearing arms

Bowlby said that during ratification of the Constitution itself, several states insisted upon some sort of amendment protecting the people's right to be armed.

Although some have questioned whether the Second Amendment was meant to protect the individual's right to bear arms or the states' rights to maintain a militia, Bowlby said that James Madison clearly considered it an individual right and wanted to group it with other individual rights. A model constitution which Thomas Jefferson proposed for Virginia also clearly called for an individual right to bear arms, said Bowlby.

Court's judgments

Craig, meanwhile, discussed the process by which the Supreme Court interprets the Constitution and its amendments, including the Second Amendment.

"The Constitution says what the Supreme Court says it says," said Craig. "The Constitution means what the Supreme Court says it means."

Supreme Court justices are appointed by the president and confirmed by the Senate. Once confirmed, they serve for life, either until they die or voluntarily retire. That life term is supposed to protect them from political pressure, although later in the presentation Bowlby said the large number of 5-4 decisions by the court indicate that it is very much a political body.


Craig said there are several different philosophies that can be used in interpreting the Constitution:

* Historical literalism believes that the only relevant issue is what was meant at the time the Constitution (or the amendment) was written. A historical literalist interpretation of the Second Amendment, for example, would take "militia" to mean all able-bodied men ages 17-45, because that's what the word meant at the time the Amendment was enacted.

* Contemporary literalism considers only the exact wording of the Constitution, but allows for contemporary definitions of terms. It might interpret "militia" in today's society to mean the citizen soldiers of the National Guard, said Craig.

* Originalism tries to find the founders' intent, by studying their writings, speeches, newspaper articles of the time, discussions at the state level, the Federalist Papers, notes and other such supporting documents.

Did the founders write the Second Amendment because of a concern that state militias might be disbanded? Some other laws of the time governing the right to bear arms specifically mention self-defense, but the Second Amendment does not. Is that significant?

* Modern instrumentalism believes the Constitution is deliberately vague because the founders wanted it to be flexible, to adapt and grow. Followers of this philosophy try to decide how the Constitution is relevant today.

Not everyone with the same judicial philosophy will reach the same conclusions, and Craig noted several different results that might arise from modern instrumentalism.

One interpreter might find that the founders wanted us to be able to defend ourselves. Another might note societal changes of the past two centuries -- changes in weaponry, law enforcement, and the development of a standing U.S. armed forces -- and decide that the Second Amendment is in need of dramatic reinterpretation. A third might focus on case law, the various ways that the courts have interpreted or re-interpreted the amendment over the years.

Major decision

The most significant recent court decision related to the Second Amendment, according to Craig, was the 2008 decision in District of Columbia vs. Heller. The court found that the Second Amendment protects the individual's right to bear arms, independent of the changing nature of the term "militia." Arms can be carried for legitimate legal purposes such as self-defense.

But the Heller decision found that the right to bear arms is not unlimited, and that the government can place reasonable restrictions on felons owning weapons, on weapon sales, or on weapons being carried in certain locations.

The Heller decision specifically applied to the District of Columbia but later interpretations extended it to the nation as a whole.

Time to think

Cook challenged students to think for themselves on the Second Amendment, and any other issue. As for himself, he said that while watching coverage of the Sandy Hook school shooting, he questioned whether the Second Amendment was truly meant to protect semi-automatic weapons that can cause a large number of casualties in just a few seconds. Cook, the grandson of a World War I sharpshooter, said he grew up on a farm and has used firearms from a young age.

Cook said that some speakers want few if any restrictions on gun rights, while others support severe restrictions.

"No right is ever absolute," said Cook, quoting Oliver Wendell Holmes Jr.'s maxim that the right to free speech doesn't allow someone to falsely yell "fire" in a crowded movie theater. The right to free practice of religion wouldn't protect some cult which believed in sacrificing virgins. The cult would still be allowed to believe what it liked, said Cook but would be restricted from a practice which the state would consider murder.

Modern changes

Cook said he questions whether the right to bear semi-automatic weapons outweighs the right of safety.

Cook said the difference in weapons technology between the era when the Bill of Rights was fashioned and today are "staggering." The weapons of the day required both hands to fire. Also, concealable weapons like pistols were not included in the terms "gun" or "firearm" as they were used in that era of history, said Cook.

When interpreting the Founding Fathers, Cook noted that people have a false image that all of them were in agreement -- when nothing could be further from the truth. There were, he said, deep divisions between the various founders on key issues, resulting in the need for compromise. He also said there's no actual evidence for a well-known quote attributed to Thomas Jefferson on the right to bear arms.

Gun regulation

Cook ran through an extensive list of the ways in which firearms have been regulated throughout American history. The Massachusetts legislature, as early as 1713 or 1714, prohibited the firing of weapons within Boston.

In the 1820s and 1830s, some states regulated gun ownership until the Supreme Court ruled that the Bill of Rights applied to state governments as well as the federal government, and the state governments could not take away rights granted by the Bill of Rights.

Cook also challenged the frequent argument used by gun rights advocates that the Nazis took away gun ownership in order to better control German citizens. He said the German laws regulating private gun ownership dated back to 1919. The law passed by the Nazi government in 1938, he said, actually extended the right to own guns, except for groups like the Jews.

"In effect, the Nazis deregulated gun ownership," said Cook, pointing out that individual weapons would probably have been little use against the Nazi war machine in any case. He also disputed the quote often attributed to Japanese general Isoroku Yamamoto that the Japanese did not invade the U.S. because of the fear of "a rifle behind every blade of grass."

Death rates

Cook said that U.S. states with higher rates of gun ownership, in general have higher rates of gun-related deaths.

"Murder is a crime of passion," said Cook, "and accessibility to guns facilitates that crime."

Later, during the question-and-answer session, one questioner asked Cook about the high murder rate in Chicago, despite Illinois' relatively-restrictive gun laws. Cook admitted that Chicago was "an outlier" but said the general principle still holds true.

Another questioner asked Cook whether the number of "gun deaths" included criminals killed by citizens acting in self-defense, and Cook said the figure included any death by firearm.

Cook challenged students to reach their own conclusions on the issue.

"Ultimately," he said, "I don't care what you think; I care that you think."

Tuesday's program was sponsored by Motlow's Department of Social Science.