The Right to Keep and Bear Arms in Light of Thornton: The People and Essential Attributes of Sovereignty

By Worthen, Kevin J. | Brigham Young University Law Review, January 1, 1998 | Go to article overview
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The Right to Keep and Bear Arms in Light of Thornton: The People and Essential Attributes of Sovereignty


Worthen, Kevin J., Brigham Young University Law Review


Kevin J Worthen*

Few people think about gun control and term limits in the same way. They generally favor one or the other, but not both or neither. The thesis of this Article, however, is that the two concepts are connected-or at least that the Framers of the United States Constitution would have found a connection between the two-and that the connection between the two affects the way we should think about the subjects.

This Article asserts that the two concepts are related because both gun control and term limits can infringe on the right of the people as ultimate sovereign to control the government entities created to carry out the sovereign will-term limits, by interfering with the people's right to choose their representatives in the national lawmaking process; gun control, by interfering with the people's right to use force, if necessary, to resist efforts to wrest control of sovereign authority from the people. This Article maintains that because the two concepts are thus related, the basic theories, principles, and reasoning used to determine the constitutional legitimacy of one should be relevant to the constitutionality of the other.

Structural constitutional limitations that prevent state infringement on the sovereign right of the people to choose their representatives should also prevent infringement on the sovereign right of the people to use force to prevent tyrannical misuse of governmental authority. This Article attempts to demonstrate the validity and implication of this thesis by showing that the Supreme Court's decision in U.S. Term Limits, Inc. v. Thornton1 concerning the constitutionality of state-imposed term limitations for congressional elections provides some interesting insights into the scope of protection that should be given to the right of the people to keep and bear arms.

Part I explains the reasoning of both the majority and dissent in Thornton and discusses how that reasoning is relevant to the debate concerning the right to keep and bear arms. Part II then explores how several key issues in the Second Amendment debate would be resolved if viewed in light of Thornton. Part II concludes that application of the majority's reasoning in Thornton supports the position that the Constitution protects the people's right to keep and bear arms from both federal and state infringement. Moreover, viewed in light of Thornton, the right to keep and bear arms is both a collective and an individual right-broader than most gun control advocates and many scholars contend, but narrower than those on the opposite end of the issue have argued. Finally, consideration of the right to keep and bear arms in light of Thornton suggests that more may be at stake in the recent discussion about the continued relevancy of this right in today's society than has been appreciated up until now. If, as this Article suggests, the right to keep and bear arms is an essential attribute of sovereignty, there are legal and policy arguments counseling against its wholesale abandonment that have yet to be addressed by those who advocate that position. Those arguments raise issues warranting extensive consideration and discussion in our modern society.

I. CONSTITUTIONAL PROTECTIONS FOR THE SOVEREIGNTY OF THE PEOPLE

A. U.S. Term Limits, Inc. v. Thornton: Who Are the People of the United States and Why Does It Matter?

Thornton involved a challenge to the constitutionality of an amendment to the Arkansas State Constitution that precluded persons who had served a certain number of terms in the United States Congress from having their names placed on the ballot for reelection to that office.2 In essence, the issue boiled down to the right of a state to impose qualifications that are not found in the Constitution itself3 on those seeking election to Congress. The five-member majority of the Court, in an opinion authored by Justice Stevens, answered that inquiry in the negative.

The majority commenced its opinion by noting that twentysix years earlier in Powell v.

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