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COLUMN: Handgun use hinges on interpretation of 'self-defense'

Wednesday, June 30, 2010 | 11:11 a.m. CDT; updated 6:52 p.m. CDT, Wednesday, June 30, 2010

The issue of self-defense, police tools and the Second Amendment are again at the forefront following this week's decision by the U.S. Supreme Court to strike down a ban on handguns.

Let me start with the Second Amendment. "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 interpretation of this seemingly simple statement is the setting of many complicated and often contradicting arguments. What are the definitions of "militia" and "Arms" as perceived by the writers and today? What did the Founding Fathers mean by "security of a free State"? Better minds than mine have pondered these questions in law schools and courts, including this week in the Supreme Court.

McDonald v. Chicago is based on a long-standing ordinance that prohibits the ownership of guns in Chicago and Oak Park, with some very restrictive exceptions. In his 214-page ruling, Justice Samuel Alito made reference to the 2008 ruling of District of Columbia v. Heller, where the court held "that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home." Chicago and Oak Park had similar laws.

However, self-defense against what? Was the purpose of the Second Amendment to defend oneself from a foreign enemy invading the American homeland as a member of a state-authorized militia or from burglars and thieves invading one's home? Was the amendment meant only for members of the state militias, "the people," of which every able-bodied man was a member, or was it to include those who did not support the American cause, which today would include homegrown terrorists?

According to USConstitution.net, "Today, the state militias have evolved into the National Guard in every state. These soldiers, while part-time, are professionally trained and armed by the government." In 1789, the citizens of this new country were more concerned with a government growing tyrannical than home invasions.

The author continues: "The trick is finding that balance between freedom and reasonable regulation, between unreasonable unfettered ownership and unreasonable prior restraint. Gun ownership is indeed a right — but it is also a grand responsibility. With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing." Neither District of Columbia v. Heller nor McDonald v. Chicago addresses this latter issue.

Then there is the definition of "Arms." Does "Arms" include Tasers, pepper spray and the full arsenal of home-defense weaponry? And if it does, can a city or state set mandatory training and/or registration requirements?

I asked members of the LinkedIn.com's legal community to address the issue of limiting or restricting the use of Tasers by police and civilians. Within four days I received more than three dozen responses equally split between regulate and don't regulate.

Even before the McDonald v. Chicago decision, there was — and will remain — no consensus.

David Rosman is an award-winning editor, writer, professional speaker and college instructor in communications, ethics, business and politics. You can read more of David’s commentaries at InkandVoice.com and New York Journal of Books.


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Comments

Mark Flakne July 1, 2010 | 3:39 p.m.

* James Madison: Americans have "the advantage of being armed" -- unlike the citizens of other countries where "the governments are afraid to trust the people with arms."

* Patrick Henry: "The great objective is that every man be armed. . . . Everyone who is able may have a gun."

* George Mason: "To disarm the people [is] the best and most effectual way to enslave them."

* Samuel Adams: "The Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms."

* Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed."

* Richard Henry Lee: "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

(Report Comment)
Gregg Bush July 1, 2010 | 5:18 p.m.

You're right, Mark. That is why we have the National Guard. It's part of the "well regulated militia" clause.

(Report Comment)
Ed Ricciotti July 1, 2010 | 9:33 p.m.

Actually Gregg, there are 2 types of militia that is recognized by federal statutes.

The organized militia, which is the National Guard, the Minutemen during the colonial period, etc.

Then there is the unorganized militia, which is the general militia, which consists of able bodied males between 17-44 years of age.

Question is, which one does the 2nd amendment apply? I believe it refers to the latter. The amendment states that the right to KEEP and bear arms should not be infringed. Key word is KEEP. Organized militia like the NG keep their weapons in an armory. Same with the colonial MM. However the general militia usually muster with their own weapons.

But back then, there wasn't a standing army like there is now and the role of the general militia in national defense has all but diminished. Most militia now tend to be organizations suspicious of government takeover and are seen on the fridge.

This is not an easy issue. Just wanted to put some data out there so there can be more informed debate.

(Report Comment)
John Schultz July 2, 2010 | 10:23 a.m.

Mr. Rosman writes:

With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing." Neither District of Columbia v. Heller nor McDonald v. Chicago addresses this latter issue.

Then there is the definition of "Arms." Does "Arms" include Tasers, pepper spray and the full arsenal of home-defense weaponry? And if it does, can a city or state set mandatory training and/or registration requirements?

I don't believe the last sentence of either paragraph is correct. My understanding of the Heller decision (operating from memory though) is that the court allowed for some regulation on training and such. I believe that Washington D.C. is being sued again, possibly by Heller or another resident, stating that the proposed regulations are too restrictive.

(Report Comment)

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