Triggering Discussion

The Second Amendment. Straightforward, clear, concise language, right? More like a loaded question and fodder for one of the 20th century's greatest debates: the right to bear arms.

Two constitutional scholars, attorneys, authors and rival proponents of states' versus individual rights crossed verbal swords in their interpretations of the Second Amendment in concurrent James Madison Week speeches in March. Whose right is it, the opposing experts asked, that of the individual states or that of the individual people?

Stephen P. Halbrook, attorney and author of That Every Man be Armed, the Evolution of a Constitutional Right and A Right to Bear Arms, says that when James Madison wrote the Second Amendment, "His intention was to allow people to own and carry firearms with little government regulation. It was included to safeguard America against tyranny. ... The less you trust the people with arms the more you move towards totalitarianism. ... Founding Father George Mason summed it up best, 'Disarming the people is the best way to enslave them.'"

Opposing the view of the Second Amendment as a state's right to maintain a militia, Halbrook argued, "Since the amendment does not distinguish the militia from the people, this argument is obsolete. ... The Second Amendment refers to the right of the people. States do not have rights; they have powers. Thus the right to bear arms is not the state's domain. Madison addressed this in Federalist Paper No. 46 when he wrote, 'The ultimate authority resides in the people -- the people are the ultimate army.'"

Halbrook said that the most important consideration when discussing contemporary topics, "is what the Constitution allows for. ... Gun control proponents read more into the Second Amendment than was intended by Madison. It's not about sport. It doesn't say, 'because duck hunting is fun, the people have the right to bear arms.' It's about the availability of a militia as a check on the federal military. ... Under Nazism and fascism, you saw total control of firearms. Some of the most oppressive regimes of the 20th century had the most stringent gun control."

Halbrook has won three cases argued before the U.S. Supreme Court in favor of limited gun control laws and blocking state mandates to the Brady Bill, passed in 1993.

Opposing the populist interpretation of the Second Amendment was Dennis Henigan, director of the Legal Action Project at the Brady Center to Prevent Gun Violence. The Brady Center is a national public interest law program that provides pro bono legal representation to victims of gun violence in lawsuits against the gun industry.

"Individual rights activists have distorted the intended meaning of the Second Amendment," said Henigan. "The right to bear arms was fundamentally different in James Madison's era. The amendment was written to provide the security of a free state in providing for state militias' rights to bear and keep arms. ... The words 'to bear arms' meant to give oneself for military duty, and 'to keep arms' meant the state should have a well-regulated militia."

Henigan proposed that Madison wrote the amendment to address concerns of anti-Federalists like Patrick Henry and George Mason, "who saw state militias as a way to keep a check on federal government's power. ... Today the amendment has a meaning that would be unrecognizable to Madison," he said.

On behalf of the Brady Center, Henigan argued successfully for the passage of the Brady Bill, which requires state-conducted background checks for handgun purchasers. "Handguns are designed to be lethal. Stronger gun control laws and enforcement could help prevent the 28,000 annual gun-related deaths and combat illegal gun sales. ... By supporting individual gun rights, society is giving elected officials less power over gun control," he said.

-- Michelle Hite ('88)