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Warren Burger and the Second Amendment

by Dave Kopel

The idea that the Second Amendment guarantees the right of an individual to own a gun is a "fraud" according to the late Supreme Court Justice Warren Burger. Burgerís pronouncement is quoted prominently in current advertising by the Center to Prevent Handgun Violence, the tax-exempt arm of Handgun Control, Inc.

Not surprisingly, the advertisements donít cite the place where the former Chief Justice set forth his analysis of the Second Amendment.

Because the Chief Justice never said anything about the Second Amendment when he was actually on the Supreme Court. (Half a dozen Supreme Court decisions affirm that the Second Amendment is an individual right.)

Nor did Mr. Burger write anything about the Second Amendment in scholarly legal or historical journal. (The scholarly consensus is virtually unanimous that the Second Amendment guarantees an individual right).

No, the Chief Justice wrote about the Second Amendment in Parade magazine, in a short article in January 1990. (A shorter version was later printed in some newspaper editorials.) This article represents, in a sense, the high-water mark for anti-Second Amendment "scholarship." Because the gun prohibition lobbies will continue to promote the late Mr. Burgerís "research" about the Second Amendment.

Most of the late Mr. Burger's Parade essay was devoted to the historical background of the Second Amendment. He offered a useful and generally accurate history of the Second Amendment, and explained that the authors of the Second Amendment believed that America should rely for its defense on "a well-regulated militia" of individual citizens, rather than upon a professional uniformed standing army.

Justice Burger then stated that today, "sadly, we have no choice but to maintain a standing national army while still maintaining a 'militia' by way of the National Guard..." Here, Justice Burger's reasoning stumbled.

First of all, the National Guard is plainly not the "militia" envisioned by the Second Amendment. The Guard was created by Congress' war power, not by its militia power. National Guard weapons are directly owned by the federal government, which means that the Guard firearms cannot be the "arms" protected from federal interference by the Second Amendment.

More fundamentally, the National Guard is a uniformed, elite force. A "select militia" was precisely what the authors of the Second Amendment intended to avoid; they instead wanted a militia made up of all able-bodied males.

And why is it so clear that "we have no choice" but to maintain a large standing army? Except during wartime (Cold War included), the United States has never had a large standing army. Many reasonable people believe that a first-class navy and air force and nuclear capability are sufficient, without need for a huge standing army, in a world without Soviet imperialism.

Chief Justice Burger argued that the Second Amendment is obsolete because we "need" a large standing army, rather than a well-armed citizenry. Who says that the sole purpose of the Second Amendment is national defense, and not also personal defense? And why is the citizen militia obsolete? The citizen militia was called forth for home defense in WWII in Hawaii, Oregon, Maryland, and Virginia.

And even if the Second Amendment were entirely obsolete, it still does not follow that the right to bear arms can be ignored. After all, the Seventh Amendment guarantees a right to a jury trial in all cases involving more than twenty dollars. Back in 1791, twenty dollars was a lot of money; today it's pocket change. Nevertheless, courts must (and do) enforce the 7th Amendment fully. If changed circumstances have made the 7th or 2d Amendments obsolete, the proper course of action is to repeal them, and not, as Chief Justice Burger implied, to ignore them while they are still the law of the land.

Yet after attacking the Second Amendment as obsolete, Chief Justice Burger's essay affirmed that "Americans have a right to defend their homes." An uncontroversial proposition, except to the gun prohibition lobbies, the Washington Post, and their allies.

Next comes the real shocker: "Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles."

In a single sentence, the former Chief Justice asserts that three "Constitutional rights" -- hunting, fishing, and buying cars -- are so firmly guaranteed as to be beyond question. Yet no Supreme Court case has ever held any of these activities to be Constitutionally protected.

What part of the Constitution protects the right to fish? The "right" to own automobiles could, arguably, be derived from the right to interstate travel but it's hardly a settled matter of law, despite what the Chief Justice seems to believe.

Chief Justice Burger contrasts "recreational hunting" guns with "Saturday Night Specials" and "machine guns," implying that the latter two are beyond the pale of the Constitution. Yet the Chief Justice has it exactly backward. The Constitution is not a sporting-goods charter for the protection of hunting and fishing. Guns owned solely for hunting, if at all covered by the Second Amendment, are at the outer periphery. (Hunting guns might be protected under the theory that the hunting experience provides a type of militia training in outdoorsmanship.) Arguably, a right to hunt might be found in the Ninth Amendment (which protects unenumerated rights), tracing its source to documents such as the 1776 Pennsylvania Constitution, which did guarantee a right to hunt.

The historical basis of the Second Amendment is self-defense, both national and personal. "Machine guns" are weapons carried by an individual soldier, which makes them precisely the firearms most suitable for a well-regulated militia.

Chief Justice Burger's "machine gun" comment was particularly inept in light of what he was pictured holding on the front cover of Parade: an assault weapon. The Chief Justice displayed his grandfather's rifled musket, with which the grandfather had killed people during the Civil War. While the musket seems quaint and non-threatening today, it was a state of the art assault weapon in its time. Its individual ownership was protected by the Constitution precisely because it was the type of weapon that a citizen soldier would carry, as an M16 is today.

So-called "Saturday Night Specials" are small, inexpensive, low-calibre handguns, disdained by most criminals (who want powerful guns to fight the police), but commonly used by poor people for self-defense. The self-defense purpose is obviously much closer to the heart of the Constitution than is the sporting purpose of more expensive guns.

In any case, "Saturday night special" is in part a linguistic descendant of the racist phrase "Niggertown Saturday Night." The obvious implication of the phrase "Saturday night special" is that it is a gun used by "niggers" to shoot each other with during their wild Saturday nights. No one denies that the people disarmed by a "Saturday night special" ban would be predominantly poor and non-white. Although entrusted with protecting minority rights, Chief Justice Burger let slip some of his real opinions about minorities when he used the racist phrase "Saturday Night Special."

Chief Justice Burger's view of Constitution was a narrowly personal one -- meaning that Mr. Burger interpreted the Constitution to protect only things that the Chief Justice felt personally comfortable with, and not to protect those things with which he did not care to be familiar.

His slender essay on the Second Amendment fits with the rest of his Constitutional thought. That which he thought familiar and appropriate -- hunting, fishing, old-fashioned religious lifestyles, the authority of the policeman and of the state -- are the things which he thought Constitution should protect. Things which repulse him -- a t-shirt with the motto: "Fuck the draft", or homosexual sodomy, or the ownership of cheap guns by minority groups -- he placed outside the boundary of Constitutional protection.

It is precisely this idiosyncratic, personalized method of analysis that judges, particularly Supreme Court Justices, are supposed to avoid. Constitutional analysis ought to rigorously and logically examine the Constitution's text, history, legal cases, and principles. Such an examination was what Chief Justice Burger avoided when he found fishermen had a right to stick sharp, pointed hooks in the mouths of river animals; but poor women had no right to affordable self-defense guns.

 
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