| 摘要 | “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 Congress is not always predictable in its voting on gun-control legislation; congressmen and our other representatives are caught in the tension between the majority of the public that favors stricter gun controls, on one side, and the determined single-issue minority, on the other side, led by the National Rifle Association, that opposes almost all legislative efforts at gun control.
The Second Amendment in the Political Arena
But what is predictable in the political arena, whenever the subject of guns comes up, is the rhetoric invoking the Second Amendment, and the seeming certainty about the meaning of the Second Amendment. Examples abound: soon after he became Speaker of the House of Representatives, Newt Gingrich wrote a letter to the NRA promising that no control legislation would move to the floor of the House as long as he is speaker. He wanted to demonstrate, he said, that “the Second Amendment is . . . about the fundamental rights of the people in a government of and by the people.” He complained that “liberals neither understand nor believe in the constitutional right to bear arms” (Washington Post, August 1st, 1995).
Another example of the rhetorical appeal to the Second Amendment: The House bill to repeal the ban on assault weapons was given the title, “The Second Amendment Restoration Act” (Washington Post, May 6, 1996). During the recent presidential campaign, the NRA called President Clinton “the most anti-Second Amendment freedoms president we’ve ever had,” because of his threat to veto that bill. At the same time, the NRA denounced Bob Dole because he too said he would “probably veto” it. Facing the prospect of both candidates ready to veto such a bill, the objective of the NRA, they said, was to wash their hands of the presidential contest and concentrate on electing “a Second Amendment majority in Congress” (Washington Post, July 19th, 1996).
The Second Amendment in the Judicial Arena
Although little doubt is expressed in the political arena about the meaning of the Second Amendment and the constitutional right to own a gun, in the judicial arena we have an entirely different situation. As Northwestern Law Professor Daniel D. Polsby has written in a recent article, “the leading law school casebooks of the 1960s, ‘70s, and ‘80s had little or nothing to say about the right of the people to keep and bear arms. Indeed, most such books had not so much as an index entry on the subject. In the entire 20th century the Supreme Court has not decided in a single case concerning the states’ power to regulate firearms” (“Treating the Second Amendment as Normal Constitutional Law,” Current, June 1996). “Supreme Court cases interpreting the Second Amendment are, for all practical purposes, missing in action. There simply is no modern jurisprudence that explains to judges the meaning of ‘the right to keep and bear arms’ and the scope of their authority to decide that a given piece of legislation constitutes an infringement of that right.” The most recent Supreme Court case on the subject was decided in 1886, at a time when the Bill of Rights was held to apply only to the federal government, not to the states; since the 1920s the Court has used the Fourteenth Amendment to apply “one provision of the Bill of Rights after another to limit the authority of the states. But it has never done so with respect to the Second Amendment.”
Six former US attorneys general summed up the status of the Second Amendment in the judicial arena in a letter to the Washington Post in 1992: “For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia.”
The Second Amendment in the Legal Arena
This clarity in the judicial arena concerning the status of the Second Amendment is now being clouded by the writings in the legal arena. In recent years there has been a turn in the legal literature, with one law review article or book after another by respected law professors making the argument that the Second Amendment is not only about state militias and does indeed secure the private right of individuals to own a gun.
These articles deal with problems of the meaning of just about every word in the Amendment. Is “the right of the people” a collective right or an individual right? What weight must be given to the prefatory phrase “A well regulated militia”? What is “the right to keep and bear arms”? Does gun control legislation “infringe” that right?
I think I can answer those questions, but unfortunately I don’t think my answers will be persuasive to those who have reason to read this once-sentence amendment another way, and there are many, many others who disagree with my reading. As has been said many times, politics is not a graduate seminar; when serious interests are at stake, I have no illusions that the positions will be changed by textual analysis. Nevertheless, we have no choice but to persist in the pursuit of the truth. You never know who may be listening with an open mind.
The Authors of the Second Amendment
What does the Second Amendment mean? Some scholars go back to Aristotle, Machiavelli, Blackstone, and other foreign sources from other times for guidance in interpreting the Second Amendment, but I think it makes better sense to look to the authors of the Amendment, the members of the First Congress, especially James Madison, who spent months writing, debating, and revising the Amendment, to see what clues they can provide. As we all know, the Constitution was ratified without amendments. Hundreds of amendments were proposed in the state ratifying conventions by critics of the Constitution. Many of them wanted either to obtain the amendments prior to ratifying the Constitution, or else to ratify on condition that their amendments would be adopted.
But all such efforts failed; no amendments were adopted prior to ratification, and all ratifications by the several state conventions were unconditional. The formulation most widely used was that the state ratified “in full confidence that” the proposed amendments would be adopted by the First Congress, in accord with the amending provisions of the Constitution. And when the first congressional elections were held, James Madison was elected to the House from Virginia after pledging that he would bring forth amendments.
The First Congress was overwhelmingly pro-Constitution; the Federalists were a five-to-one majority in the House and a ten-to-one majority in the Senate. For several good reasons the Federalists were opposed to taking the time to consider amendments. They had urgent legislation to debate and pass, most importantly to establish the departments of government and to start raising revenue. Why devote precious legislative time to debate amendments before the Constitution had been in operation long enough to reveal defects that needed fixing? And why bow to the demands of the Anti-Federalists when they were such an insignificant minority in the Congress?
Madison, on the other hand, although the leading supporter of the Constitution, was determined to propose the amendments we now call the Bill of Rights. But his amendments differed in important respects from those that had been proposed by the Anti-Federalists in the state ratifying conventions. The amendments the Anti-Federalists sought were of two distinct kinds; one primarily structural, to weaken or abolish congressional powers over taxation, elections, commerce, and the military and restore these powers to the states; the other primarily concerned with legal and political rights. Madison proposed only amendments dealing with rights, and he succeeded in blocking all of the amendments that would have diminished or changed in any way the powers of the federal government. His amendments were carefully devised to change nothing in the text of the original Constitution – nonamending amendments.
This required not only eliminating entire articles that had been proposed by the state conventions, but also cutting some of them in half. For example, one of the most popular proposals was to place limits on a standing army. Six states advocated such a provision, more than proposed protection of the freedom of the press or speech or religion. In the Virginia version, the limitation on a standing army was joined with the “right to keep and bear arms” and “a well-regulated militia.” Madison deleted the limitation on a standing army, despite the fact that his good friend Thomas Jefferson had urged such a limitation.
The contrasting of militia and standing army – one “proper, natural, and safe,” the other “dangerous to liberty” – was a commonplace, and we can see evidence of that thinking, first in the Articles of Confederation and then in the Constitution.
The Articles of Confederation placed a limit on the standing “forces” any state could “keep up”:
Nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgement of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state.
The wording of the Articles of Confederation was quite different concerning what the state militia could “keep up”:
Every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accounted, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
A remnant of that mistrust of a standing army is evident in the Constitution. It grants Congress the unqualified power “To provide and maintain a Navy,” but the power regarding land forces is severely qualified: “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.” A “standing” navy is tolerable, not dangerous to liberty, but there must be limitations on land forces. Congress additionally has power
To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by Congress.
But the Constitution did not have in it the assurance that the Articles of Confederation had had, the imperative that the state militias “shall always” be kept up. Madison opposed adding any limitation on a standing army beyond the two-year limit on appropriations already in the Constitution, but he was not against giving assurance to those who were concerned about the power of the new federal government over the military that it would not interfere in the proper arming and maintenance of the state militias. “Armies” could be raised by Congress but not “kept up” without frequent new congressional appropriations, but the arms of the state militias must always be “kept up.”
And so, as Madison first proposed it, “the right of the people to keep . . . arms shall not be infringed.” Why? Because “a well armed and well regulated militia [is] the best security of a free country.” That is what the word “keep” means in the Second Amendment.
What about “bear”? The best clue to that word is in the conscientious objector clause that Madison proposed, that was debated at length in the First Congress, that was revised by the House special committee, and that was ultimately deleted by the Senate before final approval by both houses of Congress and the ratification by the states. In that clause it is clear that “bearing arms” is meant in a strictly military sense, not in a private sense. In fact, in the successive versions of the amendment, the phrase “to bear arms” replaced the phrase “to render military service in person.” “The right of the people to . . . bear arms,” that is, the right of the people to serve in the militia, must not be infringed, because the militia must be kept up.
The debate in the First Congress on the Amendment focused almost entirely on the conscientious-objector clause. Elbridge Gerry expressed a concern that as worded it could be twisted to keep members of certain religious sects from serving in the militia, and he linked that to successful efforts of the British, at the beginning of the Revolution, to prevent Massachusetts from establishing an effective militia. He saw the danger in Madison’s provision of granting “a discretionary power” to exclude anyone from “military duty.” He was against giving the authorities the power to “declare who are those religiously scrupulous, and prevent them from bearing arms.” Gerry and all the others who spoke to this amendment clearly took the phrase “to bear arms” to mean “militia duty.”
The conclusion is obvious. The Second Amendment is about the right of states to keep up a well regulated militia and the right of the people to bear arms in the militia. Private ownership of guns is not what the Second Amendment is about. In all of the debate in the First Congress on the Second Amendment, such a right for such purposes was never mentioned. The entire discussion was of militia. If the authors of the Amendment are any guide for our understanding of it, the subject matter of the Second Amendment is militia, not private uses of guns.
But does that mean there is no personal right to have a gun for protection of the home and for hunting? If you had asked those members of the First Congress whether there was such a right, I think to a man they would have replied, “Yes. Of course. It goes without saying. Everyone has firearms in the home. Everyone hunts. Why do you ask?” But there is no evidence in the record of deliberations in the First Congress that that right has anything to do with the Second Amendment. At best it is one of the countless unenumerated rights we have, like the right to own a dog for protection of the home, and for hunting. What is the status of unenumerated rights? When the amendments were being debated, it was pointed out that there are too many rights to list, such as the right to go to bed when you choose and to get up when you choose, the right to wear a hat or not, and so on. What happens to those rights, what protection do they have, if other rights are given specific protection and they are not? Madison said that question so vexed him he was not prepared to go forward with his amendments until he devised what is now the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Examples of unenumerated rights include the right to marry or not, to have children or not, to own a house, or a car, or a dog. But the exercise of these rights can be regulated or controlled without any doubt of constitutionality. You need a marriage license, a birth certificate for the children, a deed for the house, registration for the car, a license for the dog. And when you die, a death certificate. The right to own a gun, like the other unenumerated rights, can be licensed and regulated and controlled without denying or disparaging it.
It may come as a surprise that even those who argue that the Second Amendment establishes a private rights to keep and bear a gun for personal use agree that gun-control legislation is constitutional. For example, Don B. Kates, Jr., perhaps the leading exponent of the reading that the Second Amendment provides for the private right of individuals to own guns, whose legal articles are frequently reprinted by the NRA, has this to say about gun control legislation:
Interpreting the Second Amendment as guarantee of an individual right does not foreclose all gun controls. The ownership of firearms by minors, felons, and the mentally impaired – and the carrying of them outside the home by anyone – may be limited or banned. Moreover, the government may limit the type of arms that may be kept; there is no right, for example, to own artillery or automatic weapons, or the weapons of the footpad and gangster, such as sawed-off shotguns and blackjacks. Gun controls in the form of registration and licensing requirements are also permissible so long as the ordinary citizen’s right to possess arms for home protection is respected.
“Second Amendment,” Encyclopedia of the American Constitution, ed. Leonard W. Levy, et al, Volume 4.]
So, the policy consequences would not be much different, whether we agree with my reading of the Second Amendment, that it is not about private ownership of guns, or Kates’s reading, that it does not secure the private rights of gun owners. For Kates, legislation to control gun ownership and the use of guns is constitutional so long as it does not seek to deny or disparage the right to own a gun for the protection of the home and for hunting, and even for the pleasure of sharpshooting with a beautifully made firearm. This is not much different from the situation for laws licensing and regulating ownership of dogs, including the banning of dangerous dogs so long as such laws do not tend to deny or disparage the right to own a dog, for the protection of the home and for hunting and for the pleasure of the companionship of man’s best friend.
There is one final point essential to make. Congressmen in 1789 would have agreed to a man that they had a right to keep a gun in the house and to hunt. The right may not have changed since then, but the circumstances for the enjoyment of that right have changed significantly. There are restrictions on hunting now that were unthinkable then, not because the right has changed but because the circumstances for exercising that right have changed. The same is true for all aspects of gun ownership and use. One can assert that there is a right of gun ownership, but that still requires us to assess the changed circumstances in which that right can be exercised. However one reads the Second Amendment, the same prudential problem remains.
Gun enthusiasts who agree with the sensible conclusions of Kates are, obviously, not the problem. The problem stems from those who argue that the purpose of the Second Amendment is to assure an armed citizenry ready to resist the government with their arms, as a bulwark against tyranny. In other words, these persons contend that the Constitution authorizes armed resistance to the officials duly elected under the provisions of the Constitution. They contend that this armed citizenry provides the ultimate protection of our liberty, not the institutions and principles of the Constitution that the Founders relied on as the bulwark of our liberties – the separation of powers, the federal system, the bicameral legislature, the free and frequent elections, and the independent judiciary, the extended territory, and so on.
Nothing could be more absurd than to think the Constitution provides authorization for resistance to the constitutional order. The right to resist is not in the Constitution because it is legitimately resorted to only when the constitutional system has broken down completely and given way to unlawful tyranny or no government at all, when the rule of law has been destroyed and the Constitution no longer has any authority to exercise. It makes no sense to claim constitutional authority for such resistance.
Taking up arms against government authority is dealt with in the Constitution, not as a defense of liberty, as the gun advocates would have us believe, but as something quite different: “Treason against the United States shall consist only in levying war against them . . .”
Successive versions of the Second Amendment:
Virginia State Ratifying Convention:
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in the times of peace, are dangerous to liberty, and therefore ought to be avoided . . .
Madison’s initial proposal in his June 8, 1789, speech to the House of Representatives:
The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The House Special Committee version:
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
The Senate (and final) version:
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. |
