Under The Gun

Friday, March 28, 2008


Think the 2nd Amendment provides individuals legal protection for the ‘right to bear arms’? You’re not alone, but for decades Supreme Court opinion has run to the contrary. Slate's legal analyst Dahlia Lithwick explains why the High Court and the public haven’t been on the same page.

Comments [35]

guntrustinfo.com from UK

I want to thinks for the efforts you have made in writing this post. I am hoping the same high-grade work from you in the future as well.

Aug. 29 2013 02:49 PM
Donald from Ashland, VA

Who is 'Mark Jeffries' and can I sign a petition to deny HIM gun ownership?! What sheer vitriol and crypto racism! I thought 'liberals' were supposed to be the sensitive and gentle people.
For the record, here is the link to the actual NRA brief that was filed with the Supreme Court: http://www.nraila.org/heller/

There's more factual information in the brief than in either Mr. Jeffries post or this NPR story.

Apr. 13 2008 05:38 PM
S Haywood from Texas

Federalist Paper No. 46

"This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation"


citizens = right to be armed

Apr. 09 2008 01:05 PM
Scott Haywood from Texas

Ahhh but the militia is well defined by our founding fathers, and United States Code.

311. Militia: composition and classes
This? (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Apr. 09 2008 12:51 PM
Seth Sutter from Oceanside, California


To my knowledge there was no alert from the NRA. I for one heard this program on NPR while I was cleaning at my home.

Right wing? Though I cannot speak for others, I am an Independent Constitutionalist who also happens to be a member of the United States Marine Corps. I resent the inference that because someone is pro-Constitution or NRA affiliated that they are right wing. I refuse to be part of the right wing movement just as much as I refuse the left. I stand proud on my own, thank you Mark.

Racist? Sexist? First off, my wife is a very independent Cambodian-American who also happens to be a staunch supporter of our Constitution in its entirety. Just think of the atrocities that happened to her defenseless parents in Cambodia under a left wing socialist gun grabber known as Pol Pot. I personally have two black friends who are NRA life members. I know lots of independent women who whole heartedly support the second amendment. As for Wendy's case, last time I checked, had right wing Hitler not taken guns away from law abiding citizens, the Jews would have been able to defend themselves.

This is one of the most important rights that we as Americans of every sex and color possess. It is the one right we have which holds an umbrella over all of our other rights.

"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." -Benjamin Franklin

Apr. 06 2008 03:10 PM
R H Frost from Portsmouth NH

Dam, I aimed my last comment at the wrong poster. My apologies, jk.

Mark Jeffries is the troll I reffered t.

Apr. 06 2008 04:26 AM
R H Frost from Portsmouth NH

Nah, jk. it was a conspiracy trap set to see how long it took for some troll to play the race card or the gender card. You won both! Plus, you managed to project all your own racial hatreds and intolerance into an otherwise reasonable discourse on individual vs collective rights and the sometimes coercive power of governments to interfere with the Freedoms inherent in each of us.

The Second Amendment as well as the First protects you, too.

Apr. 06 2008 04:24 AM
jk from USA

Gun control laws only effect law abiding citizens. A criminal who is willing to rob and kill someone, is not going to worry about a gun control bill. Criminals do NOT obey gun control bills. All law abiding citizens have the right to carry a concealed handgun for self defense. Regular Americans need to vote out office, the liberal politicians, who created and support these unconstitutional laws banning guns and concealed carry.

Apr. 05 2008 07:50 PM
Mark Jeffries from Chicago, IL

Perhaps the reason you right-wing gun nuts have taken over this thread is because you were told to do so by an NRA E-mail, since you wingnut morons can't think for yourselves and have to have someone tell you how to think.

And we all know what you gun nuts really look forward to using your guns for--when a "colored," "Mexican," "Jap," "Jew" or "homo" moves in next door or when your "little woman" dares to think and act on her own and refuses to submit to your brutal sexism. After all, you gun nuts are all racists and KKK members.

And it must be nice to be a traitor to your gender, Wendy. Do you look forward to the day that your idol Loofah Felafel does to you what he did to Andrea Mackris?

Apr. 05 2008 05:15 PM
Aaron Solomon

This is obviously innacurate, bias reporting. I have argued against many that say that NPR is liberal biased media but after listening to this I can argue no more. My contributions to your organization will stop immediatly and I encourage others who feel as outraged to do the same. Perhaps that money would be better spent by a "little" organization known as the NRA.

Apr. 04 2008 02:10 PM
Donald from Ashland, VA

To: R. H. Frost
Re: OTM / NPR - 'Do they get it?'

Obviously OTM is a target of that 'vast right-wing conspiracy' otherwise known as 'ordinary Americans who read above the 4th grade level.'

Apr. 04 2008 01:01 PM
R H Frost from Portsmouth NH

"I notice not one post takes the side of OTM's 'expert' or their so-called 'reporter.'"

Ya think there's a trend there, Donald? Do you think NPR gets it?

Apr. 03 2008 08:02 AM
Donald from Ashland, VA

OTM may not be anti-Semitic, at least not overtly. But OTM's website didn't allow me to post four earlier comments. It took writing the NPR Ombudsman twice before they either fixed the 'Submit' link or decided my non-offensive posts were okay.
I notice not one post takes the side of OTM's 'expert' or their so-called 'reporter.'

Apr. 03 2008 06:18 AM
R H Frost from Portsmouth NH

Chris, you may be right about fighting tyranny with stealth and politics but we don't have militias armed like our Armed Forces and National Guards. The militia is not defined by or within either of those types of Federal organizations.

That differentiation of arms could well be part of what the Supreme Court may have to consider or ignore in its ruling on the Heller case.

Guns are not ineffectual, however. In terms of self defense, guns are used far more often to prevent or stop crimes. Tyrants don't have to be in government but if they are, being armed is better than not being armed to oppose tyranny.

Apr. 03 2008 02:48 AM
R H Frost from Portsmouth NH

Oops. It's there. Nevermind. Sorry Wendy.

Apr. 03 2008 02:38 AM
R H Frost from Portsmouth NH

Anybody else notice a post missing? The post from the person identifying herself as a Jewess is no longer among these comments. Was there something objectionable? I must have missed it or misread the post.

Please don't tell me that this On the Media action was anti-Semitic, too.

Apr. 03 2008 02:35 AM
Chris Gray from New Haven, CT

The media related question posed by Bob to Lithwick at the end of the interview was a very slim hook upon which to hang this story as "on the media."

If Bruce Cockburn had never recorded "If I Had A Rocket Launcher", I doubt Bob would even have his mind, no less his eye, on a Stinger. Nothing either party to this interview said convinces me that the 1939 case actually settled the matter and much that is written above seems to contradict that interpretation.

Still, as a means of fighting tyranny, I see guns as ineffectual. No one has the firepower to long survive against a "well regulated militia" such as we deploy. It is stealth weapons and political support that defeat tyranny, nowadays, not futile bravado.

Apr. 03 2008 01:22 AM
Donald from Ashland, VA

I get it! This was an early April Fool's joke from NPR! An erstwhile 'legal expert' from Slate being interviewed by a so-called 'reporter' in an interview demonstrating the very kind of biased mis-reporting of 2nd Amendment issues that they decry in the interview. How post-modern! How Ironic!!
WOW, dude and dudettes!

Apr. 02 2008 03:57 AM
Wendy Weinbaum from Charlotte, NC

WOW! I cannot believe what a vapid refuge for IDIOCY the NPR has become on any question relating to gun rights! As a Jewess in the US, may I remind everyone that criminals are stopped by FIREARMS, not by talk? And that America wasn't won with a registered gun? That is why all REAL Americans put our 2nd Amendment FIRST!

Apr. 01 2008 02:09 PM
tom payne

Why do our tax dollars go to fund liberal talk radio?

Apr. 01 2008 11:34 AM
Chris Johnson from Reno, NV

The Miller decision held that sawed off shotguns are not militia weapons.

The Dred Scott decision said (among other things)
That if "Negro's" had the same human rights as Whites that they would be able to carry and own guns.
When will NPR admit its clear bias?

Apr. 01 2008 03:43 AM
Joel Underwood from Texas

Same old arguement...

No tool has ever killed a human of its own will. (a weapon being a tool)
It makes for good reading in Stephen King novels, but it isn't reality.
People kill people. Accidentally or otherwise.
On the same note: No ban of a tool has ever stopped threats, or hate, or criminal acts.

Outlawing a tool that can be used as a weapon just removes a citizens ability to defend themselves from criminal acts.

Someone at www.thefiringline.com said it better but...
Laws DO NOT apply to criminals...
Because the shear nature of being a criminal is to ignore the law.

Apr. 01 2008 01:29 AM
R. Wade

From tin-pot dictatorships to full-blown totalitarian dystopias, people made the mistake of believing that their rights went only so far as the words on a government document.

People who believed in their goverments to "grant" them rights paid for that mistake in the tens of millions. They continue to pay for it around the world. And still the media have the gall to attack fundamental human rights, especially the right to armed self-defense.

Shame on NPR and the rest of the media for paving a road to Hell with false good intentions and mirages of public safety. Shame on them for waging a war on common sense and twisting fundamental human rights into something that can be debated away by mendacious "legal scholars".

Even Niccolo M. knew that failing to trust citizens to carry arms was a political mistake.

Apr. 01 2008 12:08 AM
Richard from Chicago

Out of all the "legal opinions" you could find for this piece, you had to bring in Dahlia Lithwick, color me surprised. This would be the same Dahlia Lithwick who called the fabulist Michael Bellesiles an "eminent legal scholar" Why not just interview Sarah Brady?

I think a better segment would have explored why people now overwhelmingly believe that the second amendment is an individual right instead of collective right considering how poorly gun owners are portrayed in the media and in pop culture.

Mar. 31 2008 10:41 PM
Jack from Chicago

The only people who shouldn't have the right to buy a gun are those who have openly expressed a desire to do harm to others, say, for example, those who might host a website called "comcast-must-die.' It could be tragic to ignore such blantant sociopathy.

Mar. 31 2008 02:27 PM
Mark Richard from Columbus, Ohio

Let's take the sophisticated 'make the icky guns go away' approach favored by snarky Bob Garfield, the rigidly ideological Dahlia Lithwick and the famously efficient DC government seriously. Then we start a movement to criminalize private handgun ownership nationwide. Perhaps if the issue goes national, we can create a 'gun czar' at cabinet level to wage a 'war on guns' - toward citizens who live in marginal neighborhoods instead of Takoma Park or somewhere similar, and who work night shifts and act rationally to protect themselves. The feds will stage raids on 'gun labs' with photographers present. Our 'overcrowded' prisons will get a further influx of victimless criminals. The domestic and offshore manufactures of handguns will be labeled 'gun lords' and our border security laws will become even more stringent to protect against the importation of these goods to our population. Possibly they will even sort themselves into gangs of rival gun-bootleggers, just like the Capone days. Few journalists will ask the simple question of whether criminalizing the practice makes the problem worse. No, I don't see a problem at all.

Why is 'On the Media' discussing this issue, instead of press coverage of this issue, at all? Unless the usual explanation is correct - that NPR is staffed by people living in a sort of urban bubble, taking to each other to reinforce opinions which are more hip than genuinely intelligent and tough-minded?

Mar. 31 2008 12:38 PM
R H Frost from Portsmouth NH

More on OTM/NPR's biting the hands that feed it.

The words, "Slate's legal analyst Dahlia Lithwick explains why the High Court and the public haven’t been on the same page," show Lithwick's abject ignorance the Court, Public, and states’ governments in this matter. What is clear is OTM/NPR’s and Lithwick’s attempt to spin opinion.

An individual’s right to keep and bear arms is law in nearly all states in the country. For example, New Hampshire's 1784 Constitution, amended in 1974 to prohibit discrimination, says "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state." Individual enough, I’d say.

When seconds count, cops are only minutes away. All but two states in the country (and the District of Columbia) issue concealed weapons permits for citizens. Since Lithwick and OTM/NPR missed it, this issuance supports self defense. Of those states, 37 require issuance if an "appropriate" person applies. Two more states don’t require any permit.

Tyranny happens. One need only look at confiscation of firearms in Louisiana after Katrina to confirm tyranny can lurks close to the surface even today. As Seth points out, above, Thomas Jefferson had it right for the right reasons.

“Shall not be infringed” has been taken seriously in this country for two hundred thirty two years, and counting.

Is OTM/NPR, as the broadcast suggests, seriously aligning itself for tyranny and against self defense?

Mar. 31 2008 01:58 AM
Seth Sutter from Oceanside California


I have risked my life to protect our Constitution, and am quite literally outraged by a story such as your recent 'story' on the Second Amendment which is so dear to the very fabric of our liberty!

Mar. 30 2008 09:00 PM
Seth Sutter from Oceanside California

I have served in the Marine Corps for five years now to defend the Constitution of the United States against all enemies both foreign and domestic.

I was outraged by the comments of the lady who was interviewed about the Second Amendment's meaning, and the lack of sufficient cross examination of your anchor/journalist.

You guys allowed the position to be taken that the American people do not know about this Amendment's real purpose. Let me clarify it for you- many of us do know very well that the reason the amendment says 'a well regulated militia,' is because it is a realization that since a state will have a militia, the people will also be able to have arms. Sort of an insurance policy against tyranny if you will. Remember, when government is scared of the people, we have liberty, but when people are scared of the government... well, now that is tyranny.

Allow me to quote Thomas Jefferson "The strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government." "Laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes ... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

Mar. 30 2008 08:59 PM
DM from Ann Arbor, MI

I invite OTM, your commentator, and listeners to actually read the Supreme Court's decision in Miller: it simply does not (directly) address whether the 2nd Amendment is an individual right.

Rather, it states that a "sawed off" shotgun is not a type of weapon that is (was) standard issue for a militia and therefore not covered under the 2nd Amendment. It did not support a ban on such a weapon but the "taxing" of the transfer in ownership (albeit at an exorbitant and prohibitive rate).

The Court "plainly" found that "the Militia comprised all males physically capable of acting in concert for the common defense...when called for service these men were expected to appear bearing arms."

The implication is that 2nd Amendment is an individual right but must be considered in light of the militia clause. A sawed-off shotgun is not a weapon that people are expected to have at home and to bring when called for militia service. However, as I anticipate the current Court will shortly rule, a handgun, rifle, shotgun--or even machine gun?--is such a weapon.

Clearly, many people no longer agree with the 2nd Amendment. Luckily, the founding fathers provided a mechanism for changing the Constitution. I propose that those opposed to gun rights should focus on changing the constitution. Arguing that the 2nd Amendment is not, at some level, an individual right is simply not supported by the facts or history of this nation. Really...it is surprisingly straightforward.

Mar. 30 2008 07:22 PM
R H Frost from Portsmouth NH

The incredulous interviewer wondering how "decades" of "collective right" interpretation of the Second Amendment (since Miller) could so widely be denied forgot to include the nearly two centuries where an individual was assumed. Between the interviewer and the Slate editor, NPR seems to side with those who would give away rights that are not NPR's to give.

I'm glad NPR is getting spanked for misrepresenting the 1939 Miller decision. For an institution with "Public" in its name and with the public as the source of its funding in any of several ways, NPR seems to have overlooked the fact that "the People" referred to in the Bill of Rights are all individuals individually possessed of all rights enumerated in that document as well as all other rights as may remain unexpressed.

Shame on you.

Mar. 30 2008 02:53 PM

Honestly -- is that the best you can do for Constitutional analysis? A hack writer who used to do family law?

Mar. 30 2008 12:14 PM
Luis from New York City

You took sides again. Constantly referring to "gun lobbyists", you implied that some secret organization is singlehandedly changing public opinion with misinformation. The NRA is made up of millions of average citizens, like myself. Referring to a third of the country as a special interest group is ignorant and closed minded. Please get real and stop with the pretended impartiality.

Mar. 30 2008 10:30 AM

Err... Should have quoted the second note from Scalia's majority opinion as well: "Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right." He goes on to note that others disagree with this view, but it seems clear to me his general opinion on the subject.

Mar. 29 2008 04:20 PM

Lithwick's comments were incomplete at best. She claims that the 1939 Miller decision reinforced the idea that the 2nd amendment does not protect the right of individuals to possess firearms. It can certainly be taken that way.

However, that view is not universally held. In the 1997 case of Prinz v U.S., Justice Scalia wrote in the MAJORITY opinion "Our most recent treatment of the Second Amendment occurred in United States v. Miller ... The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment." Thomas concurred in the opinion. Given that both still sit on the court, it's far from assured that Lithwick's interpretation of the Miller decision will be shared by a majority of the current court.


Mar. 29 2008 02:31 PM

Leave a Comment

Email addresses are required but never displayed.