Should the Second Amendment to the U.S. Constitution be watered down to protect little if any right of the people to keep and bear arms in accordance with European models? Disregarding that the United States won its Revolution based on that very right, recent statements made by Supreme Court Justices suggest they believe so. Part I of this Article discusses four opinions in which Supreme Court Justices opined inconsistently using the experiences of European countries as models in construing the meaning of firearms laws and determining their constitutionality under the Second, Tenth, and Fourteenth Amendments.
This same debate has been played out in Congress, where registration of firearms, supported by arguments in support of European models, has been rejected. Part II traces the debate from the beginning of World War II in 1941 through passage of three major firearm laws in 1968, 1986, and 1993.
A guarantee of the equivalent of Americas Second Amendment was considered but not adopted by the French National Assembly in the French Declaration of Rights of 1789. As discussed in Part III, Third Estate bodies throughout France demanded that commoners have a right to possess arms, while the nobility sought continuation of their traditional monopoly of arms.
Without recognition of this right, the French government of Prime Minister Pierre Laval easily decreed the registration of firearms and firearm owners in 1935. As Part IV notes, Laval would later become the chief architect of collaboration with Nazi Germany.
When Nazi Germany occupied France beginning in 1940, it relied on the French police and its own military might to confiscate firearms and to subject gun owners to the death penalty. Part V traces how the police could use the firearm registration records to ferret out gun owners, evolving Nazi policies for both amnesties and executions to enforce the gun ban, and how uncertainty regarding who refused to surrender firearms made it less secure for the Nazis.
This experience exemplifies Americas Second Amendment as a doomsday provision, as Judge Kozinski articulated. As Part VI concludes, advocates of watering down the Second Amendment by looking to foreign experiences would do well to consider Frances tragic history.