Jewish World Review Nov. 5, 2001 / 19 Mar-Cheshvan, 5762
With the latest warnings from Washington that the public should be wary and vigilant because other terror attacks may be imminent, the federal government has, in effect, deputized the American people. Such vague warnings may seem unhelpful, but they do, in effect, call 280 million sets of eyes and ears to heightened sensitivity, which has to change the environment, and risks, for terrorists.
Yet some say this is a logical time to multiply the legal hurdles for Americans seeking to defend themselves with firearms. What this idea ignores is the connection between civic health and the public's responsibility for participating in the provision of public safety. So this is an appropriate time to revisit the most fundamental -- the philosophic -- reason why both the right and the fact of widespread gun ownership reflect a healthy dimension of America's democratic culture. This subject is doubly timely because of what a federal appeals court said 35 days after Sept. 11.
In an opinion containing a remarkably detailed -- and persuasive -- analysis of prior Second Amendment cases and the political and social culture from which the amendment arose, the 5th U.S. Circuit Court of Appeals held that the amendment guarantees individuals the right to "possess and bear their own firearms . . . that are suitable as personal, individual weapons." This is important, even path-breaking.
The amendment reads: "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." Proponents of gun control, including those who say the government has a comprehensive power to control the possession of all weapons, even to the point of disarming the American public, have argued that the 13-word preamble means that the amendment provides only anachronistic protection of states' rights to maintain militias.
However, had that been the aim of those who enacted the amendment, they could simply have said: "Congress shall have no power to prohibit state militias." They did not, because more -- much more -- was at issue.
The Framers did not merely constitutionalize, meaning make fundamental, the right to possess and bear arms. The significance of their placement of the Second Amendment -- second only to the guarantee of freedom of speech, worship and assembly -- is that they considered the right the amendment protects to be central to citizenship. Indeed, in the 1857 Dred Scott decision, Chief Justice Roger B. Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the right to possess arms.
Widespread possession of guns is justified by considerations of public safety, individual dignity and healthy democracy. Public safety because law enforcement personnel can never be numerous enough to guarantee safety. (Remember this test: Call for a cop, an ambulance and a pizza. Which will get there first?) Personal dignity implies, among much else, readiness for self-defense. And the health of democratic culture is implicated in the general public's involvement in public safety. This is so because freedom is not a gift from government, and defending it is not a duty that properly responsible citizens will entirely delegate to government.
"Who are the militia?" asked George Mason, one of the Framers most insistent about adding a Bill of Rights to the Constitution. He answered his rhetorical question: "They consist now of the whole people." Today the whole American people should feel informally enlisted in a kind of anti-terrorism militia.
All Americans are, potentially, intended victims of terrorism. What can they do about that? Americans who live in large cities develop a certain urban wariness -- an instinctive alertness, a set of prudential strategies for minimizing dangers. A similar heightened alertness is now a civic duty.
And that duty cannot be properly understood or carried out unless Americans understand that the Second Amendment carries the considerable weight of expressing an important component of the meaning of citizenship, which is:
Public safety is the public's business. Public authorities take the lead and some of them work at it full time. However, at all times, and especially in times like these, it is every citizen's