The FAA Rediscovers the Right to Keep and Bear Arms
Jacob Sullum | February 21, 2007, 11:47am
David Codrea, who sounded the alarm about the Federal Aviation Administration's apparent endorsement of the view that the Second Amendment does not guarantee an individual right to keep and bear arms, notes that the agency has published a correction in the Federal Register:
When the FAA issued a final rule on human space flight, it described one rule as consistent with the Second Amendment of the Constitution because, among other things, the right to bear arms under the Second Amendment is a collective right. The FAA now withdraws that characterization and amends its description.
The offending passage, part of the FAA's justification for its ban on carrying firearms aboard spaceships, originally read (emphasis added):
The Second Amendment to the Constitution provides that "[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 right is not unfettered. Nearly every statute restricting the right to bear arms has been upheld. For example, in 1958, Congress made it a criminal offense to knowingly carry a firearm onto an airplane engaged in air transportation....Additionally, nearly all courts have also held that the Second Amendment is a collective right, rather than a personal right. Therefore, despite the Second Amendment collective right to bear arms, the FAA has the authority to prohibit firearms on launch and reentry vehicles for safety and security purposes.
It now reads:
The Second Amendment to the Constitution provides that "[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 right is not unfettered. Nearly every statute restricting the right to bear arms has been upheld. For example, in 1958, Congress made it a criminal offense to knowingly carry a firearm onto an airplane engaged in air transportation....By analogy, and for the reasons given when the FAA issued its human space flight requirements, the FAA has, consistent with the right to bear arms secured by the Second Amendment, the authority to prohibit firearms on launch and reentry vehicles for safety and security purposes.
Explaining the correction, the FAA notes that "the Executive Branch, through the Department of Justice, interprets the Second Amendment as securing a right of individuals to keep and bear arms." Codrea, who pointed out the inconsistency in a letter to the FAA, concludes:
If you know you're right, keep pushing—even if those with vastly more reach ignore you and others actively oppose you or put you down for it—all of which happened in this case. We can't let that deter us from doing what's right.
thoreau | February 21, 2007, 12:20pm | #
On the 2nd amendment, even back when I supported gun control I thought that the thing needed to be rewritten. I mean, say what you will about what it meant in the context of legal jargon in 1790 or whatever year, I'm perfectly willing to believe (at least for the sake of argument) that people who know far more about that than I do can explain that it was perfectly unambiguous back then. OK, great. Fact remains that today it's confusing. Yes, yes, I know, it
shouldn't be confusing, we should all just learn the things that other people have learned and then it would all be perfectly clear.
Well, fact remains, it is confusing to a lot of people today because it starts off talking about a group ("militia") that is subject to some sort of control ("well-regulated"). Then, it talks about a "right" that "shall not be infringed." One can be pardoned for being confused about whether that right is individual or collective.
Mind you, I think it would be best if the right is recognized as an individual one, and I am willing to believe people who have read far more than me who say that it meant precisely that in the context of legal jargon in 1790.
I still think it would be best if it was rewritten to say that in the plain language of 2007. We can debate the best wording, but it should probably be something that carries the same meaning in both common usage (i.e. layman's terms circa 2007) and legalese (circa 2007).
I have no illusion that such a rewrite will take place, of course. I'm just saying that the 2nd amendment is hardly the most easily understood of the amendments.
Now, the parts about your right to a trial, however, those seem pretty unambiguous even 200 years later. A shame that some don't see it that way...
TrickyVic | February 21, 2007, 2:07pm | #
"""The major (and obvious) flaw in that language is the phrase "the people." Who are "the people?" Citizens? May they exercise that right individually?"""
The term people is defined in the first the words of the Constitution as "we". This is not a flaw, the flaw is in the minds of those who can't grasp the concept that the bill of rights applies to the citizens of this country.
The word people is also used in the 4th amendment. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.".
It would stand to reason that whomever the "people" are, the definition would be consistent throughout the document.
Having said that, it could be argued that the "people" that gets the guns are the same "people" with the 4th amendment rights.
Someone called out the difference between state rights and federal rights which is an iffy argument and a complex one. Say, would a state have a right to pass a law against free speech, or is due process something a state can remove. Both answers are no. The state is bound to allow it's citizen rights afforded by the Constitution, otherwise, the Constitution is meaningless outside of federal law.
I dare say when a state decided to join the union, it accepts the idea that what it does as a state must conform to federal rules except when there are no federal rules, part of which would be the allowance of rights as written in the Constituion. If this was false a state could do whatever it wants with no federal recourse. The 10 amendment applies, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
The bill of rights is a power delegated to the United States.
Kap | February 21, 2007, 3:13pm | #
Warren wrote:
Can you give me a single instance of a time when the state was like "we were going to arrest this person/these people, but when we saw what they were packing, we decided against it".
The 1994-2004 Assault Weapons Ban. When it was in effect, purchasing new assault weapons was outlawed, but those who already owned them were allowed to keep them, as pre-ban firearms were grandfathered. Therefore two classes of Americans were created, one with the right to own an AW, one without, and the difference was in the former group being already armed with them.
Why? A while back I recall reading a gun-politics article in the MSM that quoted a gun shop owner: "Ever try to repossess a gun?"
Note that when new molecules are added to the DEA's schedules, existing possessed stock is
not grandfathered.
JD wrote:
So when people say "Personal arms are useless because the military can do XYZ", they are ignoring the political realities of the situation.
Exactly. And the same technological advances in the past 200+ years that created the superweapons also created a highly networked, media saturated world. Slaughter and oppress your citizenry and the whole world knows about it within hours or even minutes; can you afford the political consequences? Technology helps David even more so than Goliath.
To which I add, we're libertarians, folks, don't forget the economics. In Iraq some insurgent uses his car to knock down a power line. A civilian contractor shows up to fix it. He is shot and killed by an insurgent sniper. Now the repair job isn't a single Iraqi Power & Light guy and his truck, it becomes a
mission with an Abrams tank, a half dozen Humvees, 20 troops, an Apache orbiting overhead, and the next IP&L guy. Multiply this by 1000x each and every day, all over the country, for five years. Eventually the world's preeminent economic and military superpower says, "you know what, this simply isn't worth it anymore," and goes home. Small arms in this context don't win military victories, they win economic victories. Sure, an AK-47 is no match for a tank, 6 Humvees, a helicopter, and 20 troops. But the AK-47 is a capital investment of $300, the opposing lot $30,000,000. Knocking down the power line took 1 minute and a few pennies worth of gas, fixing it took a few days' planning and coordination, and six figures' worth of manpower and asset depreciation. Asymmetric warfare, indeed. That kind of war is unsustainable for Goliath, no matter how many Davids he kills.
GunShowOnTheNet | February 22, 2007, 12:32am | #
Warren - You are incorrect in your assessment. To Wit;
The Conventions of a number of the States having, at the time of 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 insure 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, namely:
...Amendment II
declaratory; (Common Defense)
A well regulated militia, being necessary to the security of a free state,
restrictive; (Self-Defense/Preservation, The First Law of Nature).
the right of the people to keep and bear arms, shall not be infringed.
See the Senate Journal of SEPTEMBER 9, 1789;
http://gunshowonthenet.com/2ALEGAL/Precedent/SenateJournal09091789.html
Mr. Madison put it this way;
"Mr. MADISON thought the regulation of the militia naturally appertaining to the authority charged with the PUBLIC defence...."
- August 18. (1787), The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Vol. 5]
Self-preservation is the First Law of Nature. The Right to keep and bear arms was one of the specific ones fought for in the Revolution. It is a preexistent NATURAL RIGHT. To Wit;
http://gunshowonthenet.com/2ALaw/LawsofNature.html
Also See;
http://gunshowonthenet.com/SecondAmend/TheRight.html
And lastly, here is what George Washington had to say about it;
http://gunshowonthenet.com/SecondAmend/GeorgeWashingtonArms.html
MikeB | February 22, 2007, 2:19am | #
"[I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose." - Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898].
"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." - [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)
To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege. [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)]
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.... [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)
The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country... — James Madison, I Annals of Congress 434, June 8, 1789.
Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? — Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836
That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms... — Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850).
The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. — James Madison, The Federalist Papers, No. 46
The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]
The people are not to be disarmed of their weapons. They are left in full possession of them. — Zachariah Johnson, 3 Elliot, Debates at 646
And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....the tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. — Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy p. 20, S. Padover ed., 1939
As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms. — Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
Stevo Darkly | February 23, 2007, 12:11am | #
Okay, then, how about this scenario?
You, carrying a shotgun, surprise a cat burglar breaking into your home in the middle of the night. "Take off your ski mask," you order the burglar, and long glossy tresses come tumbling out. My god, the burglar is a girl! The most beautiful girl you have ever seen! And, now that you look more closely, you realize that her formfitting black leather catsuit displays an audaciously curvaceous body.
"I have no weapons," the burglar says in a husky contralto, and offers to prove by disrobing. Slowwwlllly she unzips her catsuit, revealing naught but voluptuous female flesh underneath. Kicking her clothing aside, she slowly turns, allowing your gaze to roam over her nude form. My god. Suddenly you are painfully aware of your aroused manhood.
The burglar aplogozies and explains that she meant no harm, but has secretly had a crush on you for weeks, and in desperation decided to break into your house and steal an unwashed shirt from your laundry for her to sleep with. She begs you not to press charges, and offers to perform an act of pleasure upon you if you'll only let her go.
You agree.
And while you're in the process of being fellated, your enraged wife comes up behind you and smashes in the back of your cranium with a cast-iron skillet.
Beware the dangers of firearms, you who think they can be wielded in "self-defense" without actually increasing the danger to yourself!
Actually, all your goofy scenarios aside, as
Larry A already mentioned, when victimized by a criminal, statistics show that the
safest thing you can do is to resist with a firearm. Not only are you less likely to be harmed than if you resist with pepper spray or some other weapon, but you are safer than if you -- as "authorities" unfortunately so often urge crime victims to do -- do not resist at all.
Bravo for a great post, Larry A!
By the way, I think the stats you mentioned might actually be on line somewhere. I've cited them myself in the past; I'll see if I can find them.
Stevo Darkly | February 23, 2007, 12:28am | #
Ah, found it.
The stats were posted on the Web site of the Second Amendment Sisters, who unfortunately have since added a "cute" background to their Web page that makes the info hard to read.
But I originally cited the stats on H&R
*** here ***, after being inspired by the late and unlamented poster Jersey McJones.
Excerpt:
Kleck's findings from 1979-1985 national data:
Percentage of robbery/assault victims suffering an injury:
- When resisting with a gun: 12.1% to 17.4%
- When not resisting at all and totally submissive: 24.7% ro 27.3%
- When "resisting" by screaming: 40.1% to 48.9%
- When trying to reason with or verbally threaten the attacker: 24.7% to 30.7%
- When "resisting passively or trying to evade": 25.5% to 34.9%
- When resisting with a knife: 29.5% to 40.3%
- When resisting with some other kind of weapon: 22% to 25.1%
- When resisting bare-handed: 50.8% to 52.1%
...
Another interesting statistic: "97% of the women who resist a rapist with a firearm do so successfully, meaning that they are not raped and are not otherwise injured."
Linky-poo:
http://www.2asisters.net/tx/resources_references.htm
AND ALSO:
Quote: Data from subsequent years have yielded confirming results. "A fifth of the victims defending themselves with a firearm suffered an injury, compared to almost half of those who defended themselves with weapons other than a firearm or who had no weapon." U.S. Dep't of Justice, Bureau of Justice Statistics, Guns and Crime 2 (1994); U.S
