Letter: Second Amendment debate continues

While Ms. Susan Paslov (Nevada Appeal, June 21 Fresh Ideas column) is to be commended for her passion, her analysis of case law is somewhat lacking when it comes to the Second Amendment; nor has she kept current with modern day legal scholarship on this controversial subject.

While she relies on the famous quote by Supreme Court Justice Warren Burger (a quote lifted from a speech and not from a legal opinion) and makes references to federal court decisions to support her position, closer scrutiny will show few constitutional guarantees have been treated with as much judicial indifference as the Second Amendment's recognition of a "right of the people to keep and bear arms." United States v. Miller 307 U.S. 174 (1939) is the sole Supreme Court decision construing the right dates from over 60 years ago, and the principal ruling on its applicability to the states as determined by the Court in Presser v. Illinois 116 U.S. 252 (1886) is over a century old.

In the absence of a coherent and authoritative judicial interpretation, Second Amendment controversies tend to be inspired by the legislative branch of our government and motivated by pure partisan politics. In this instance, Ms. Paslov is wrong. Despite the complexities of human nature, this issue does reduce itself down to liberal/conservative world views.

Paradoxically, by using cases like Miller and Presser and aided by the Burger quote, she has slipped into the use of cliches that she herself finds wrong in others. Given the deep-seated and firmly-rooted emotionalism that attaches itself to this subject,coupled by the use of the firearm in the early developmental stages of our country, the Second Amendment's status as the most controversial unsettled area of the Bill of Rights is well deserved.

The Second Amendment states: "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." What Ms. Paslov fails to inform the readers is that the essence of the controversy is over the meaning and ramifications of this one sentence declaration, involves three schools of thought.

One school, which may be considered the 'individual rights' approach, holds that the Second Amendment recognizes rights protecting individual citizens in the peaceful ownership of private firearms for their private purposes.

The second approach, broadly described as a "collective rights" approach, argues that the right embodied in the Second Amendment runs only in favor of state governments and seeks to protect their maintenance of formal, organized militia units such as the National Guard.

In addition, there appears to be a hybrid interpretation, which argues that the right protected is indeed one of the individual citizens, but applies only to the ownership and use of firearms suitable for militia or military purposes.

In the last decade, scholars from across the political spectrum have concluded that the Second Amendment from any method of analysis, protects an individual right, and that this view is now commonly referred to as the "Standard Model" and is presented as such in the nation's law schools. Indeed, the nation's leading constitutional scholars, such as ultra-liberal Lawrence Tribe of Harvard, Akil Reed Amar of Yale, William Van Alstyne of Duke and Sanford Levison of Texas ascribe to the concept of the individual Second Amendment Right as the "Standard Model."

The conclusion of Professor Glennharlan Reynolds, of the University of Tennessee, is that scholars adhering to an individual rights interpretation," ... dominate the academic literature on the Second Amendment almost completely," and that this view is "... the mainstream scholarly interpretation." Additionally, in 1999, a federal judge ruling from the Northern District of Texas, in U.S. v. Emerson 46 F. Supp. 2d 598 (N.D. Tex. 1999) overturned a federal gun law on Second Amendment grounds emphatically stating: "The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights."

Neither one of us will resolve the debate on the Second Amendment. Ms. Paslov is as dedicated to her liberal view of the Second Amendment as I am to my conservative view of the Second Amendment. What is unfortunate, is that there seems to be no common ground where people can meet each other on this subject; no place for reasonable people to reasonably disagree, or any mechanism to establish a national consensus. The real danger is complacency on both sides of the issue. Let the debate continue. It strengthens the Republic.


Carson City


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