For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview
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IX.CIVIL RIGHTS, CIVIL DISTURBANCES

In spite of the comatose condition of the right to keep and bear arms, there were voices, some in positions of authority, expressing the opinion that the Second Amendment protected an individual right. An example was Justice Hugo Black's entry in the James Madison Lectures at New York University in 1960. Justice Black, explained his opposition to a "balancing of interests" approach to the Constitutional protections:

Some people regard the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions which Congress need not always observe. . . . For example, it is sometimes said that Congress may abridge a constitutional right if there is a clear and present danger that the free exercise of the right will bring about a substantive evil that Congress has authority to prevent. Or it is said that a right may be abridged where its exercise would cause so much injury to the public that this injury would outweigh its injury to the individual who is deprived of the right. . . .

I cannot accept this approach to the Bill of Rights. It is my belief that there are "absolutes" in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be "absolutes."1

Black then articulated the meaning of the various amendments of the Bill of Rights as they restrict the federal government: "The use of the words, 'the people,' in both these Amendments strongly emphasizes the desire of the Framers to protect individual liberty." After repeating the Second Amendment, Black contended: "Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute." While Justice Black did not explicitly call this "absolute" protection an individual right, the entire rest of the lecture repeatedly emphasized that the Bill of Rights protects individual rights.

To those who see the Second Amendment as "increasingly irrelevant":

I cannot agree with those who think of the Bill of Rights as an 18th century straitjacket, unsuited for this age. . . . The evils it guards against are not only old, they are with us now, they exist today. . . .

Experience all over the world has demonstrated, I fear, that the distance between stable, orderly government and one that has been taken over by force is not so great as we have assumed.2

____________________
1
Hugo L. Black, "The Bill of Rights and the Federal Government", in Cahn, 44-45.
2
Black, 50-51, 54-55, 61-62.

-197-

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