The Myth of the Second Amendment

"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."

Have you ever heard someone say gun control is a fine idea— except that the Second Amendment prohibits it?

The Second Amendment was never intended as a gun license for the entire American populace. As originally drafted—and as consistently interpreted by the courts for more than a century—the Amendment does not grant any blanket right to own a gun nor does it stand in the way of rational, effective gun control.

The idea of gun ownership as an American birthright is nothing more than a popular myth. Yet the controversy over gun control and the Second Amendment rages on.

As the nation’s oldest and most prominent defender of individual rights, the American Civil Liberties Union (ACLU) holds the U.S. Constitution and its Bill of Rights in the highest regard. To clear up many misconceptions, what follows are some basic questions and answers about the Second Amendment and gun control.

Q The Second Amendment says "the right of the people to keep and bear arms shall not be infringed." Doesn’t it mean just that?

A There is more to the Second Amendment than just the last 14 words. Most of the debate on the Amendment has focused on its final phrase and entirely ignores the first phrase: "A well regulated Militia, being necessary to the security of a free State . . ." And to dissect the Amendment is to destroy its context. While some scholars have suggested that the Amendment gives individuals the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date. However, the vast majority of constitutional experts agree that the right to keep and bear arms was intended to apply only to members of state-run, citizen militias.

Q If it doesn’t guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?

A When James Madison proposed the Bill of Rights in the late 1780s, people were still suspicious of any centralized federal government. Just 10 years earlier, the British army been an occupying force in Colonial America—enforcing arbitrary laws decreed from afar. After the Revolutionary War, the states insisted on the constitutional right to defend themselves in case the fledgling U.S. government became tyrannical like the British Crown. The states demanded the right to keep an armed "militia" a form of insurance.

A Militias in 1792 consisted of part-time citizen-soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barns—there was no other way to muster a militia with sufficient speed. Over time, however, the state militias failed to develop as originally anticipated. States found it difficult to organize and finance their militias and, by the mid-1800s, they had effectively ceased to exist. Beginning in 1903, Congress began to pass legislation that would eventually transform state militias into what is now the National Guard. Today, the National Guard—and Army Reserve—are scarcely recognizable as descendants of militias of the 1790s. The National Guard and Reserve forces, in fact, do not permit personnel to store military weapons at home. And many of today’s weapons—tanks, armored personnel carriers, airplanes and the like—hardly lend themselves to use by individuals.

A No. The weight of historical and legal scholarship clearly shows that the Second Amendment was intended to guarantee that states could maintain armed forces to resist the federal government. Most scholars overwhelmingly concur that the Second Amendment was never intended to guarantee gun ownership rights for individual personal use. Small arms ownership was common when the Bill of Rights was adopted, with many people owning single-shot firearms for hunting in what was then an overwhelmingly rural nation.

Q Does the Second Amendment authorize Americans to possess and own any firearms they feel they may need?

A Clearly, no. The original intent of the Second Amendment was to protect the right of states to maintain state militias. Private gun ownership that is not necessary to the maintenance of militia is not protected by the Second Amendment.

Q Does the Second Amendment allow government to limit—even prohibit—ownership of guns by individuals?

A Yes. Federal, state and local governments can all regulate guns without violating the Second Amendment. State authorities have considerable powers to regulate guns. The federal government can also regulate firearm ownership, although some scholars believe that the federal power may not be as extensive as that of an individual state. California, for example, has limited the ability of local governments to regulate firearms. While the state has kept its broad regulatory power, cities and counties can only prohibit guns from being carried in public places.

Q How have the courts—particularly the U.S. Supreme Court—interpreted the Second Amendment?

A The Supreme Court has flatly held that the individual’s right to keep and bear arms "is not a right granted by the Constitution." In the four cases in which the high court has addressed the issue, it has consistently held that the Second Amendment does not confer a blanket right of individual gun ownership. The most important Supreme Court Second Amendment case, U.S. v. Miller, was decided in 1939. It involved two men who illegally shipped a sawed-off shotgun from Oklahoma to Arkansas, then claimed the Second Amendment prohibited the federal government from prosecuting them. The court emphatically disagreed, ruling that the Second Amendment had the "obvious purpose" of creating state militias, not of authorizing individual gun ownership. In two earlier rulings in 1876 and 1886, the Supreme Court held that the Second Amendment affected only the federal government’s power to regulate gun ownership and had no effect on state gun control powers. Those cases, Presser v. U.S. and U.S. v. Cruikshank, formed the basis for the continuing legal decisions that the Second Amendment is not an impediment to rational gun control. In another case that the Supreme Court declined to review, a federal appeals court in Illinois ruled in 1983 that the Second Amendment could not prevent a municipal government from banning handgun possession. In the case, Quilici v. Village of Morton Grove, the appeals court held that contemporary handguns couldn’t be considered as weapons relevant to a collective militia.

Q The National Rifle Association (NRA) says the Second Amendment guarantees our right to keep and bear arms. Has the NRA got it wrong?

A Like any powerful special interest, the NRA works to secure its financial well being. It insists on a view of the Second Amendment that defies virtually all court decisions and contradicts findings of most legal scholars. In so doing, the NRA actively perpetuates a seemingly endless cycle of gun-related fatalities. The NRA intimidates politicians because it is very well financed and, like any wealthy single-issue special interest, can muster considerable pressure and scare tactics against legislators who oppose it. For decades, the NRA has effectively promulgated its message. Other voices have recently begun to be heard, however, including the public health community, civil rights and civil liberties organizations and groups committed to women’s, children’s and family rights. The NRA implies that the Bill of Rights forces us to accept unlimited gun ownership and tolerate the human tragedies that guns cause in our society. That simply isn’t true.

Q What are the Second Amendment positions of the American Civil Liberties Union and the ACLU of Massachusetts?

A For decades, both the national ACLU and its Massachsetts affiliates have agreed the Second Amendment guarantees only the rights of states to maintain militias. The national ACLU has urged caution over gun control laws that, though well intended, might infringe on other civil liberties. The ACLU of Massachusetts believes effective gun control—especially of handguns and assault weapons—is essential to curbing the escalating violence in our society.

"Thus when individuals were charged with having deprived black citizens of their right to freedom of assembly and to keep and bear arms, by violently breaking up a peaceable assembly of black citizens, the Supreme Court in United States v. Cruikshank held that no indictment could be properly brought since the right 'of bearing arms for a lawful purpose' is 'not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.' Nor, in the view of the Court, was the right to peacefully assemble a right protected by the Fourteenth Amendment: 'The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is and has always been one of the attributes of citizenship under a free government. . . .It was not, therefore, a right granted to the people by the Constitution.' (From: "THE RIGHT TO KEEP AND BEAR ARMS," REPORT of the SUBCOMMITTEE ON THE CONSTITUTION of the COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE, NINETY-SEVENTH CONGRESS, Second Session, February 1982.) http://www.barefootsworld.net/senate82.html

As I recall, US v Cruikshank upheld a "Jim Crow" law. Doesn't the mASS ACLU reference to it at this time make them subject to scorn in the national media?

And if we follow Cruikshank in regard to the Second, maybe we should follow it in regard to States Rights.

So, You Want To See Me Naked, Part II?

by Linda A. Prussen-Razzano, Dallas Bureau Chief

November 19, 2002

American Partisan

"Candidly Yours"

In January of 2000, almost three years ago, I wrote a long, blistering article entitled, "So, You Want To See Me Naked?". Originally appearing in Enter Stage Right, it would later be reprinted (with or without permission and usually without compensation) on numerous pro-gun websites. According to Steve Martinovich, Editor of Enter Stage Right, it was, at the time, the single most popular column in the history of the magazine, beating out even the distinguished Colonel David Hackworth.

Imagine my surprise when, a few short weeks ago, I received a call from a production assistant at Fox News asking inquiring about my article. A lot had happened in my life since I wrote that piece, the most obvious being the births of my beloved son and daughter. Where before I had a regular column and wrote frequent guest articles, I since moved into a state of semi-retirement. I am now devoting as much time as possible to two miraculous children – successful pregnancies after years of encroaching sterility and heart-wrenching failures.

The sentiment I expressed then remains the same; however, the depth of devotion to that sentiment has increased tenfold. And just so people understand explicitly why I hold this position, allow me to point out several key facts:

1. Every single person on this planet has several inalienable rights. These rights are ours by virtue of our humanity, stemming from a universal authority higher than any government fashioned by man. The Constitution does not grant us our rights, it merely lists the ones we automatically possess. Our rights are not subject to the whim of elected officials or tyrannical despots – they are an unquestionable part of us. We can judge the virtue of a society by how vehemently it recognizes and defends a person’s exercise of their rights, or how actively it seeks to thwart them.

Hence, any attempt to deny, infringe, or remove these rights violates the very essence of our humanity, defiles the universal truth of human rights, and undermines the moral absolute that allows us to bring freedom to those people denied their rights by oppressive regimes.

Those who claim they want a "reasonable compromise" on our rights are, in fact, asking us to relinquish them, just so they can feel an added sense of false security. In light of the magnitude of their request, there is nothing reasonable about it. Moreover, these requests typically come from people who have little understanding about the inherent nature of rights, thinking them subject to the will of the populace instead of a necessary and intrinsic part of our existence as human beings. It should come as no surprise, therefore, that they are so ready to relinquish them, or to demand that others relinquish them. Since they have no concept of their permanence, they view them as transient and disposable, instead of a critical part of a free society.

2. We not only have the right to live, we have the right to protect our lives. We have the right to protect our lives against any power that seeks to unjustly take it from us. Just as you do, I have the right to defend my life against some murderous creep crawling through my back window, against an enemy invading my country, and against a tyrannical government that seeks to oppress me.

3. God gives us children to love, cherish, nurture, and protect. Like many of you, I take this responsibility seriously. I will not struggle with innumerable locks, politely asking an intruder to please stop torturing my babies while I prepare myself, just so others can feel all warm and comfy inside. I am an unapologetic gun owner. I own them for a reason. I will have them at the ready, to use when absolutely necessary, because my childrens’ lives are more important to me than some misguided sense of self-satisfaction.

4. Just as I teach my children not to run with a lollipop in their mouth, not to play with scissors or utensils, and not to drink bath water, I will teach my children about guns. When they are ready, I will enroll them in the "Eddie the Eagle" program, take them to the range, and let them go hunting. They will learn to respect the power of a weapon, understand it is not a toy, and be trained to defend themselves. Those who can’t grasp the concept that appreciation for life is taught in the home should not procreate.

5. Let’s be blunt, shall we? Murder is against the law. Rape is against the law. Robbery is against the law. There are thousands of other variations to these crimes, all of them against the law, yet crimes still occur. Law-abiding citizens follow the law; criminals - by their very nature, do not. As this is an extremely easy concept to understand, only the most ignorant among us would presume that passing additional gun-control laws will actually have an impact on crime.

Perhaps you’ve noticed this is a sore spot for me. Can you guess why?

I know what it’s like to have a gun pressed to the back of my head, to have some freak tell me he’s going to blow my brains out if I don’t comply, to wet myself in horror and have my life snapshot before my eyes, to be the very victim the anti-gun crowd holds up as just cause for banning guns.

That’s right…it’s personal.

In truth, I have several friends who choose not to exercise their right to keep and bare arms. I respect their decision; they understand their family dynamic better than anyone. If they aren’t comfortable handling a gun, if they can’t overcome their propaganda-driven fear, if they have religious or personal objections, by all means, they shouldn’t own one.

But don’t tell me I shouldn’t, or can’t, exercise my right to own a weapon. I have just four words for folks like that: Over My Dead Body. I will not play the victim for you. I will not trust the future of my security to things like "luck". I will not be a statistic, just so you can feel as if you have "done something." I will not relinquish my inherent, inalienable right to defend myself and my family, leaving us naked and exposed like manufactured future victims, so that you can pretend you made my world a safer place.

As I have said before, my days of being a helpless female are over. ***

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