Right To Bear Arms Doesn’t Extend To Militias
KNOXVILLE, Tenn. — Individuals’ constitutional right to bear arms doesn’t necessarily extend to militias, according to the current issue of the Tennessee Law Review.
The University of Tennessee College of Law publication, a collection of papers by leading scholars, examines many facets of America’s debate over guns, crime and the Second Amendment.
The publication has been reviewed in the New York Review of Books and the Chronicle of Higher Education.
Congress has reaffirmed three times, the latest in 1986, that the individual’s “right to keep and bear arms is a fundamental, individual right,” according to Stephen Halbrook, former George Mason University law professor now practicing in Fairfax, Va.
Congress has determined that “statutes regulating this right should be narrowly construed against the government and in favor of the people,” Halbrook wrote in the Review.
“The modern militia movement is mistaken to think that militia groups have any special Second Amendment rights,” wrote UT-Knoxville law professor Glenn Reynolds.
The Second Amendment does not create on behalf of militia groups the right of revolution, Reynolds said. “The right to revolt exists only when constitutional government has clearly broken down, not simply when isolated groups are unhappy with the political process,” he said.
Criminologist Don Kates, a San Francisco lawyer, and his co-authors at the Columbia, Harvard and North Carolina State medical schools evaluated literature on guns, gun safety and gun crime. They found the public health literature deficient when compared to criminological research on the topic.
“Criminologists find that gun control has limited value because the dangerous people whom it is most desirable to disarm will not comply, while the law abiding who will comply are not dangerous, and disarming them removes their ability to effectually resist crime,” they wrote in the Review.
Some medical and health publications, they contend, go to the extreme of basing anti-gun arguments on falsified facts and fabricated references.
Clayton E. Cramer, a software engineer who has written extensively on the Second Amendment, and co-author David Kopel, research director of the Independence Institute, a Colorado think tank, argue that legal possession of handguns has not produced the feared increase in gun-related violence.
“Only 2 percent of shootings by civilians involve mistakes, as compared to 11 percent of shootings by police,” Cramer and Kopel said.
The homicide rate in Florida has dropped from 36 percent above the national average to 4 percent below since gun-carry reform was enacted in that state, they say.
“The fact that permits are available does not mean that everyone will carry a gun. Usually, only about 1 percent to 4 percent of a state’s population will choose to obtain a permit,” Cramer and Kopel wrote.
They concluded: “Concealed carry reform does not turn otherwise law-abiding citizens into hot-tempered murderous psychopaths. To the contrary, the evidence shows that concealed carry reform is sometimes associated with saving lives, and where it does not appear to have done any good it at least did no harm.”
Randy Barnett, law professor at Boston University, argues that America’s political establishment and the courts have paid insufficient attention to the problem of political legitimacy. He says the expansion of federal authority, coupled with the militarization of law enforcement, has damaged the perceived legitimacy of the federal government. He calls for more judicial and academic scrutiny of federal power.
“When courts fail to engage in such oversight or even distort the Constitution to rationalize…actions of government…they are putting at risk the legitimacy of the lawmaker process and risking the permanent disaffection of significant segments of the people,” Barnett wrote.
Air Force Col. Charles J. Dunlap Jr., author of several works on civilian control of the military, says an armed citizenry would be helpless in the face of a modern military force. Therefore, the right to bear arms “should be balanced against the need for crime control,” he wrote. “The Second Amendment…still serves as an important reminder of the Framers’ healthy suspicion of governmental power.”
Contact: Glenn Reynolds (423-974-6744)
R.G. Smithson (423-974-0687)
Micki Fox (423-974-4464)