Tennessean shoots foot with 2nd Amendment editorial
Occasionally, this site looks at other issues than the state budget and taxes. This is one of those times.

The Tennessean has again attacked your constitutional rights. The paper has published an historically inaccurate editorial on John Ashcroft and the Second Amendment, similar to editorials published in other papers, such as the The Los Angeles Times and the Minneapolis Star-Tribune. Like those editorials, it makes a reference to the government's position on the issue over the last 60, refers to an unnamed Supreme Court decision from the 1930s, and makes a personal attack on Attorney General John Ashcroft. The editorial in fact reflects like a mirror the views of the anti-gun Violence Policy Center, which claims the Second Amendment right to bear arms is a right of state-controlled militias, not a general right of individual citizens. Ashcroft disagrees.

This op-ed in the Wall Street Journal, written by Eugene Volokh, a professor of constitutional law at UCLA, is much more balanced and accurate.

An excerpt of Volokh's piece: From the late 1700s to the early 1900s, the individual-rights view of the Second Amendment was the nearly unquestioned interpretation. Virtually no court or commentator of that era reasoned that the Second Amendment protects the rights of states. Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.

More from Volokh: The individual-rights view is also in good modern company. In the 1986 Firearms Owners' Protection Act, Congress specifically reaffirmed "the right of the citizens to keep and bear arms." In 1960, those noted conservatives (or is it "radicals"?) John F. Kennedy and Hubert H. Humphrey both asserted their support for the right of each citizen to keep and bear arms. Some leading liberal constitutional scholars today likewise take this view.

The Tennessean editorial misrepresented the 1939 Supreme Court in U.S. v. Miller. Yes, the court ruled that the Second Amendment right to keep and bear arms is a right for the militia. But, as Volokh notes in his piece, the court also said that the word "militia" refers to "all males physically capable of acting in concert for the common defense," and said these men "were expected to appear bearing arms supplied by themselves." The Tennessean doesn't tell you that. Neither did the editorials in the LA Times or the Minneapolis Star-Tribune.

But it's important - because the 1939 U.S. v. Miller case actually affirms the view that Second Amendment is a personal right. John Ashcroft is right. The Tennessean - as is so often the case - is wrong.

As University of Tennessee law professor Glenn Reynolds writes, you'd never know from the Times, Star-Tribune or Tennessean editorial that "Ashcroft's view is shared by lots of leading constitutional scholars, that the Supreme Court has repeatedly treated the Second Amendment as an individual right, or that the Framers thought individual gun ownership was important."

Comparing Volokh's WSJ op-ed to the Tennessean's tripe is illuminating. Not only does Volokh provide a more historically complete and accurate view, his op-ed comes with footnotes to his sources. The Tennessean's doesn't. And, while the Tennessean backs all sorts of gun control legislation, its support for the view that the Second Amendment doesn't recognize an individual's right to keep and bear arms is actually counter-productive to its pro-gun-control agenda. Why? As the astute Volokh points out, if the courts and Congress were to clearly support the individual-right interpretation of the Second Amendment, pro-gun activists would no longer be able to use the slippery-slope argument to generate opposition to reasonable gun regulations, and debate over the issue might be marked by compromise rather than polarization. But you don't get that depth of analysis from the Tennessean's typically knee-jerk liberal editorials.

For more on the subject of the Second Amendment, click here.

The Tennessean's editorial mirrored points made by the anti-gun Violence Policy Center in this letter to Solicitor General Ted Olson opposing Ashcroft's individual-right stance. Glenn Reynolds provides an excellent dissection of how liberal advocacy groups' press releases become mainstream media's liberal editorial dogma, often without attribution, here.