THE SECOND AMENDMENT AND GUN CONTROL: A SKEPTICAL VIEW
by Steve Gustafson
Please distribute this text freely
Just like science, the law also knows its paradoxers and eccentrics.
What a good society is, or what the law ought to be, are questions about
which reasonable people can always differ, as no ultimate evidence can
be brought to bear on either of them. What the law now -is-, though, is
a question that can be decided by reference to authoritative sources
open to all who wish to consult them.
As such, it is possible to say that the law knows cranks and
crackpots, people who insist on exploded theories long after they have
been decisively falsified. A person who claimed that individual states
had the right to secede from the United States, or nullify legitimately
passed Federal legislation, would certainly deserve the label of
"crank." Whatever sophisms he could put forth in favour of those
positions have been decisively rejected by both law and history; though
they may once have been viable positions, they are no longer.
Other legal cranks claim that various aspects of United States
currency, dollars unredeemable for gold, or the Federal Reserve Banks,
or other financial institutions, are unconstitutional. Despite the fact
that proponents of this nonsense are inveterate litigators and some have
filed literally dozens of lawsuits to establish these claims, they have
been universally rejected by the courts. [See, e.g., HANSON v. GOODWIN
(1977) 432 F. Supp 853; PETH v. BREITZMANN (1985) 611 F. Supp 50]
Some of the people who make these claims have tawdry and venal goals,
trying to escape paying their taxes or mortgages, or other obvious sorts
of self-interest. On the other hand, these claims are often
orchestrated by dangerous and evil anti-Semitic cults, aligned with
neo-Nazism, holocaust revisionism, and the more homicidal forms of
quackery. These groups proselytize for these false beliefs, hoping by
an appeal to self-interest to suck in people for their neo-Nazi
movements. When these claims meet universal rejection, this is held to
be evidence of the Jewish "conspiracy" at work.
I. CURRENT LAW FINDS NO INDIVIDUAL RIGHT TO FIREARMS IN THE SECOND
AMENDMENT, MUCH LESS THE RIGHT TO A STATE OF ARMED ANARCHY THAT IS
Then there are those who claim that the 2nd Amendment to the U. S.
Constitution gives them a right to own handguns or other firearms, and
prevents regulation of gun ownership, licencing, waiting periods, and
other proposals for gun control. Like the gold standard advocates,
their claims make an intuitive appeal to the way things allegedly were
in the distant past. The minutemen and Indian fighters of old needed to
have guns at their side to repel attacks, right? And it was just such
men who whupped the redcoats, right? So no matter how times have
changed, the Founding Fathers enshrined in the Constitution a right to
guns equal to that needed in those days.
Whatever the merits of arguments for or against gun control, claims
of a Second Amendment individual right to own a handgun or any other
particular firearm are simply false. Those claims have typically met
with universal rejection by courts that have considered them. In short,
those who claim under the Second Amendment a Federal constitutional
right to own firearms are as much cranks as the people who claim a
constitutional right to a gold standard.
The Courts have generally held that the 2nd Amendment's purpose was
to guarantee the integrity of militias organized by the states, not to
confer an individual right to firearms. Moreover, any rights created by
the 2nd Amendment have not been applied to the States through the
Fourteenth Amendment, the true source of the enforceability of portions
of the Bill of Rights against the States.
The Second Amendment to the U. S. Constitution was ratified by the
States on Dec. 15, 1791. It provides that "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."
The militia was or is a group of citizens volunteering or legally
compelled to turn out for active military service upon order of the
several States. For purposes of federal law, it is defined as all males
between the ages of 17 and 45 who are or intend to become citizens. [10
The Congress shall have Power. . .
To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia,
and for governing such Part of them as may be employed in the service
of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the
Militia according to the Discipline provided by Congress. . .
[U. S. Const. art. 1, sec. 8, cl. 15-16] The President is Commander in
Chief of all the state militias when they are called into service of the
United States. [U. S. Const. art. 2 sec. 2, cl. 1) When the President
is not exercising this authority, it is usually held by the governors of
the several states or territories. (Cf., Northwest Ordinance of 1787,
ss. 6; Indiana Const. art. 5, sec. 12)
From the foregoing, it is apparent that the Federal Government has
broad authority to prescribe rules and regulations for any militia,
active or inactive. Believers in a 2nd Amendment individual right to
firearms point only to the Amendment, and claim that everyone is
automatically deemed to be in the militia. At minimum, these arguments
are unavailable to women, or to senior citizens.
More importantly, they duplicitously ignore Congressional authority
over any alleged militia conferred by article 3. Reading this in
connection with the 2nd Amendment, it should be clear that membership in
the militia confers no individual rights. Quite the opposite, it
-subjects- you to Congressional authority over what sort of arms, if
any, you are entitled to bear. You are subject to whatever discipline
Congress chooses to provide for the militia. You have no right to a
weapon that Congress doesn't want you to have.
As such, any legislation made by Congress that restricts or
eliminates the availability of a given weapon is authorized, even
against those who claim the status of militiamen, given the power of
Congress to discipline the militia. Indeed, Congress could under this
grant of authority decide to completely disarm the militia, or provide
that the only weapons they were allowed are slings or spears. You get
no Constitutional rights from a claim of militia status; you become
subject to such military discipline as Congress and the States choose to
enforce against you.
Indeed, in light of these broad grants of military authority that you
are potentially subject to, it strikes me as rather reassuring to know
that any 2nd Amendment "rights" do not constrain the States through the
It is now well settled that some, but not all, of the provisions of
the Bill of Rights also curb the authority of the States by means of the
14th Amendment's due process clause. Not all of them are: the 5th
Amendment requirement of an indictment by grand jury for crimes does not
apply to the States, for example.
And, any right to bear arms created by the 2nd Amendment does not
apply to the States, either. See, e.g., KELLOGG v. CITY OF GARY (1990)
Ind., 562 N.E.2d 685, 692. As such, the states remain free to restrict
or ban any firearms in the exercise of their general powers to legislate
for the health, safety, and welfare of their citizens. The Second
Amendment poses no obstacles to such legislation. See, e.g., NEW
HAMPSHIRE v SANNE (1976) 364 A.2d 630.
Moreover, for more than a hundred years the United States Supreme
Court has held that the Second Amendment does not grant any individual
rights; but rather, it is "a limitation only upon the power of Congress
and the National Government. . ." PRESSER v. ILLINOIS (1886) 116 U.S.
252, 265. There is no Federally guaranteed right to bear arms for any
lawful purpose that is granted by the U. S. Constitution. UNITED STATES
v. CRUIKSHANK (1876) 92 U.S. 542.
Likewise, in UNITED STATES v. MILLER (1939) 307 U.S. 174, the United
States Supreme Court held that concerns over safety and concealment
allowed Congress to require registration of sawed-off shotguns
transported across state lines, despite claims that the Federal law in
question was an attempt to usurp the States' police power, or that the
2nd Amendment gave individuals a right to such a weapon.
In the absence of any evidence tending to show that possession
or use of [a sawed-off shotgun]. . . at this time has some
reasonable relationship to the preservation or efficiency of a
well-regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument.
MILLER, 307 U.S. at 178.
It is true that the United States Supreme Court has not often
considered the scope of any claims of Second Amendment rights. Some have
attempted to use this silence as implying that some right might exist.
In fact, the Supreme Court has broad discretion to decide what cases are
worth its time to hear. It is likelier to take up an issue when it sees
widely different standards being applied by lower courts.
On the Second Amendment, though, the Supreme Court is confronted with
no such differences of legal opinion. Instead, a survey of current
decisions shows instead that there is an Amen chorus of agreement that
the Federal constitution poses no obstacles to gun control.
The courts instead say that the 2nd Amendment guarantees a collective
right of political organizations to form militias, not an individual
right to a firearm. UNITED STATES v. WARIN (1976 6th Cir.) 530 F.2d
103; UNITED STATES v. JOHNSON (1974 4th Cir.), 497 F.2d 548. It
protects state militias, not personal firearms. UNITED STATES v. NELSEN
(1988 8th Cir.) 859 F.2d 1318; CASES v. UNITED STATES (1942 1st Cir.)
131 F.2d 916, cert. den. Its only purpose is to prevent Congress from
interfering with State militias, and has no bearing on regulation of
firearms for public safety or the general welfare. UNITED STATES v.
HALE (1992 8th Cir.) 978 F.2d 1016.
The Second Amendment poses no obstacle to state or local laws that
substantially burden or completely ban handguns for safety and welfare
reasons. QUILICI v. VILLAGE OF MORTON GROVE (1982 7th Cir.) 695 F.2d
261, cert. den.; SKLAR v. BYRNE (1984 7th Cir.) 727 F.2d 633. Technical
membership in an inactive state militia does not confer a right to own
an unregistered submachine gun. UNITED STATES v. OAKES (10th Cir.) 564
F.2d 384. To claim a right under the Second Amendment, you must be in
active duty in a militia organized by a state, rather than a merely
private organization or a person theoretically subject to militia
service. VIETNAMESE FISHERMAN'S ASSOCIATION v. KNIGHTS OF THE KU KLUX
KLAN (1982 S. D. Tex.) 543 F.Supp 198.
Read 'em and weep, NRA members. You cannot even glimpse at this
material without forming the conclusion that anybody who has told you
that you have a Second Amendment right, enforceable in court, to
purchase and keep a firearm free from gun control legislation --- has
been telling you a lie. I'm not talking about the rhetoric from
American Revolution veterans. I'm talking about what the courts say and
do in the here and now. It just ain't so.
To sum up:
The Second Amendment offers no protection against Congressional
regulation or banning of weapons that still allow state militias in
active duty to be armed. Indeed, Congress has the right to prescribe
what weapons, if any, such militias will be authorized to bear.
The Second Amendment offers no protection against the regulation or
banning of weapons by the States. The Second Amendment does not
restrict the police powers of the States in any way, because it does not
apply to the States. The States may decide that some or all firearms
are threats to health and public safety, and restrict or ban them for
those reasons, notwithstanding the Second Amendment.
Former Chief Justice Warren Burger, hardly a bleeding heart liberal,
has called the belief that the Second Amendment guarantees an individual
right to firearms one of the biggest frauds perpetrated on the American
public by a special interest group. Whatever your opinion on the
desirability of guns or an armed citizenry, given the current status of
legal precedents, his assessment of the situation is correct.
II. THE FEDERALIST PAPERS OUGHT NOT TO BE CITED SO AS TO GIVE AID AND
COMFORT TO THE PROPONENTS OF ARMED ANARCHY.
In the course of the endless debate on whether the 2nd Amendment
creates a Federal constitutional right to own handguns or other
firearms, some have claimed that the Federalist Papers contain support
for these claims. In those documents, it is said, the Founding Fathers
expressed their support for an individual right to own firearms. What I
know of history made me skeptical of those claims, so I looked into it.
These arguments only work on people who are unfamiliar with both the
Federalist Papers and the history surrounding them. The claims
generally fall into two categories:
First, that the Federalist Papers ought to be interpreted as an
expression of the intent of the Framers to create an individual right
to gun ownership by the 2nd Amendment; or
Second, that the Papers contain expressions of confidence by
the Framers that guns in the hands of private individuals are a
bulwark against government tyranny.
The first claim is easily refuted. The Federalist Papers are a poor
source for any information about the intentions of the authors of the
Bill of Rights. They are suspect on these grounds because the authors
were not advocating the passage of the Bill of Rights; it was not part
of the proposal they were defending. Indeed, they argued at length in
the Federalist Papers that a Bill of Rights was unnecessary. In -The
Federalist No. 84-, Hamilton says:
I go further, and affirm that bills of rights, in the sense and in
the extent in which they are contended for, are not only unnecessary
in the proposed constitution, but would even be dangerous.
Are these authors then reliable guides for the interpretation of any
part of the Bill of Rights, including the 2nd amendment? It would seem
The second claim is that the Federalist Papers contain expressions
by the Constitution's original authors, that guns in the hands of
private individuals are an important bulwark against tyranny. If you
equate "militia" with "anybody" like the NRA would have us do, there are
some passages that could be read as supporting this theory. On the
other hand, to read the Federalist Papers is to realize how wrong the
NRA is about the nature of a militia.
What people were in fact debating in the days of the Federalist
Papers was: are standing armies desirable? Will a standing army be
turned into an instrument of tyranny against the people? Will a
standing army be turned by the Federal Government proposed by the
Constitution to purposes of foreign military adventurism?
Madison, replying to these criticisms, wrote words that might be
read as supporting the NRA position:
The only refuge left for those who prophecy the downfall of the
State Governments, is the visionary supposition that the Foederal
Government may previously accumulate a military force for the
projects of ambition. . .
[After estimating the number of professional soldiers he thought the
country could support at the time at 30,000 maximum, Madison
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 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.
(The Federalist, no. 46)
It should first be noticed that the militia imagined by Madison bears
little resemblance to the ghostly force imagined by the NRA. The
militia here has officers. It is commanded by state governments. It is
not a mere assembly of self-proclaimed irregulars.
It should also be noted that, whatever confidence Madison had in
militias, these words give no succour to those who would claim that he
intended an -individual- right to own any firearm she pleased. Instead,
the liberties defended by the militias here don't belong to any
individuals, but to the several States.
If we are delving into history as far back as the Federalist Papers
to interpret the Constitution, it makes little sense to ignore one major
event that calls Madison's line of argument above into question: the
Civil War. After the Civil War, it seems idle to suggest that state
militias have a scheme in the Constitutional system to check the Federal
government by making war against it. Whatever the 2nd Amendment might
give to the States, later precedent seems to have taken it away.
Finally, it should be conceded that the critics to whom Madison was
replying were themselves closer to being right than he is. For better
or for worse, we now have a standing professional army. The
Constitution's stricture that a standing army can only be funded for two
years at a time has been an inadequate check to the growth of the
professional military establishment. The standing army's advantages in
armament are great enough that it seems hard to imagine that any militia
fielded by an aggrieved state government could overcome it, despite
Madison's critics were also right, in that the Federal government's
standing army has indeed become an instrument of both harsh
authoritarian rule, and foreign military adventurism, as they feared.
Gun control is not as great a threat to our freedoms, as compared with
the threat of being hauled into boot camp against your will into the
military service of the Federal government. If Madison and Hamilton or
their critics had foreseen that, the Constitution never would have
The Federal government's power to dragoon people into its armies has
within recent memories been used to support military adventures abroad.
The national security establishment has been a major source of
restrictions on Constitutionally guaranteed freedoms, and the
persecution of people for their political opinions. These things were
the very dangers the Anti-Federalists warned us of.
Among those who noisily insist on their alleged right to guns, it
seems to me that "national security," military patriotism, and the Flag
often achieve the rank of sacred totems. These beliefs suggest that
Madison's arguments and concerns are an imperfect fit to contemporary
political debates. Love of guns for many is not inconsistent with
unquestioning support of an authoritarian, centralized military.
Indeed, given what Madison was in fact saying, it would be
mealy-mouthed hypocrisy for somebody to cite the Federalist Papers in
support of a right to own guns, and to turn around and label our
President Clinton a "draft-dodger," as if that's supposed to be bad. It
is mealy-mouthed hypocrisy for anybody who cites these passages against
gun control to suggest that resistance to military conscription by the
Federal Government for the purpose of foreign adventures is anything but
The Federalist Papers shed no light on what the 2nd Amendment
to the U. S. Constitution might mean.
The Federalist Papers do not claim that an armed citizenry in
and of itself is an important restraint on tyranny.
The Federalist Papers do support the claim that organized State
militias may be a check on the military adventurism or usurpations of
the Federal government. After the Civil War, this claim is no longer
tenable; given changes in the hardware required for war, it is
III. OTHER MISLEADING, OUT OF CONTEXT QUOTES FROM AMERICAN
REVOLUTIONARIES ARE OFTEN CITED IN AN ATTEMPT TO JUSTIFY ARMED
"Are we at last brought to such humiliating and debasing
degradation, that we cannot be trusted with arms for our
defense? Where is the difference between having our arms in
possession and under our direction, and having them under the
management of Congress? If our defense be the _real_ object of
having those arms, in whose hands can they be trusted with more
propriety, or equal safety to us, as in our own hands?"
--- Patrick Henry
This is typical of one of those out of context quotes that are often
repeated in gun lobby propaganda. Patrick Henry was not arguing for a
right of anybody to own any weapon for any private purpose here.
Observe the pronoun without a reference in the first line. The editor
who would puff this as a pro-gun-anarchy quote chose not to leave in a
reference to who the "we" are that Patrick refers to here. In context,
"we" are not people in general, but the Virginia House of Burgesses.
The issue under discussion was whether the Constitution proposed by
the Federalists should be ratified by Virginia. The specific issue
under discussion was the broadened military powers granted the Federal
government by the Constitution. The Constitution allowed the Federal
government to raise armies. The Articles of Confederation made raising
armies a responsibility of the States, who typically had more or less
trained militias; the Federal government had limited powers to mobilize
Henry was specifically against the section of the Constitution that
gave Congress the power to organize, arm, and discipline state militias.
(Article 1, section 8, clause 16) This is what he was talking about
when he mentioned "having our arms under the management of Congress."
Not gun control or licensing as a safety or anti-crime measure.
Indeed, if you imagine that you have gun rights as a member of an
organized or irregular "militia," the Constitution gives Congress power
to decide what arms you can bear and the terms of your discipline.
Licensing for safety would be one reasonable way for Congress to
exercise its explicitly granted power.
For what it's worth, Patrick Henry was on the losing side of this
argument. As an anti-Federalist, he opposed the Constitution and the
stronger government it was intended to create. Virginia did end up
ratifying the Federal constitution on June 26, 1788, although the vote
in Virginia was close. Even if you read it in support of private guns
rather than state armies, Henry's statements carry little weight to
determine the mind of the authors of the Constitution itself.
You can believe what you wish about the worthwhileness of guns or the
undesirability of any or all measures for gun control. But I find it
vexing to constantly see out-of-context quotes, distorted history, and
misstatements of the law being dragged into this endless argument.
"THE Constitution shall never be construed to authorize Congress to
infringe the just liberty of the press or the rights of con-
science; or to prevent the people of the United States who are
peaceable citizens from keeping their own arms". (Samuel Adams,
Debates & Proceedings in the Convention of the Commonwealth of
Another quote from an anti-Federalist; in Adams's case he originally
opposed ratification of the Constitution as well. His statements here
are certainly not conclusive; and, again, he was talking about the
keeping of arms for military purposes, not private ones.
I will admit that the Founding Fathers hoped or imagined that a
standing army would not be necessary. They believed that it would be
politically dangerous, and a temptation to foreign interventionism.
They imagined that America would be adequately defended by a "militia"
constructed on lines similar to the Swiss system. While they thought
that everybody would have a rifle to bring and participate in this
system, they also thought that everyone would be required to drill and
acquire at least some minimal military competence.
Over time, it didn't work out that way. Universal militia service
collapsed around the 1820's; people just weren't obeying the laws that
required them to appear and drill, &c. The next step was to organize
local regiments of volunteers that formed the core of what was to become
the National Guard. This was the main body of American arms up until
the Spanish-American War; although in heavy fighting such as the Civil
War this model proved inadequate as well. Still, up until World War II
we kept the faith of the Founding Fathers that Federal armies should be
kept small in times of peace, and in strict subordination to the civil
Since World War II, we have had a large standing army in permanent
establishment; and as such most of the dangers warned against by the
Founding Fathers have come to pass. One quote from Samuel Adams that
for some reason gets passed over by the NRA or the American Legion comes
to mind ---
Soldiers are used to obey the absolute commands of their
superiors: It is death to them, in the field, to dispute their
authority, or the rectitude of their orders; and sometimes they
may be shot upon the spont without ceremony. The necessity of
things makes it highly proper that they should be under the
absolute control of the officer who commands them; who saith
unto one come, and he cometh, and to another go, and he goeth.
Thus, being inured to that sort of government in the field and
in the time of war, they are too apt to retain the same idea,
when they happen to be in civil communities and in a time of
peace. [Boston Gazette, Dec. 12, 1768]
It is worthwhile to recall these words when confronted with the
politicking of veterans' organizations, or their pretense to define by
their authoritarian model the One True Patriotism.
We now see the military actively politicking, as view their attempts
to claim the nation would be endangered were their budget cut or their
numbers reduced; consider also their resistance to their Commander in
Chief's instructions to end institutional hostility to homosexuals.
Veterans' organizations pretend to define the One True Patriotism
according to their authoritarian model of following orders.
Instead of the volunteer militias to defend hearth and home imagined
by the Founding Fathers, we were given the monstrous tyranny of
Selective Service. Today's would-be tyrants claim that the One True
Patriotism consisted of unquestioning obedience to its orders, and paint
resistance to that loathsome bureaucracy as suspect! In fact, the
Selective Service press gangs raised troops for exactly the sort of
foreign adventures our founding fathers condemned.
At its most grandiose, it hoped to become an instrument of a national
labour and industrial policy that sought to coerce us into a socialist
military state. During the dark days of conscription, it was an
explicit national policy to use the threat of forced military service as
a club to compel people to make career decisions that favoured the
government's idea of what was useful to it, rather than their own
interests. Remember General Hershey's infamous "channelling" memo of
In the less patriotic and more selfish individual it engenders a
sense of fear, uncertainty, and dissatisfaction which motivates him,
nevertheless, in the same direction. He complains of the uncertainty
he must endure; he would like to be able to do as he pleases; he
would appreciate a certain future with no prospect of military
service or civilian contribution, but he complies with the needs of
the national health, safety, or interest --- or he is denied
deferment. . .
From the individual's viewpoint, he is standing in a room which has
been made uncomfortably warm. Several doors are open, but they all
lead to various forms of recognized, patriotic service to the Nation.
Some accept the alternatives gladly --- some with reluctance. The
consequence is approximately the same.
[The Selective Service: Its Concepts, History, and Operation (Govt.
Printing Office, Sept. 1967)] Remember those words the next time you
hear the "anti-socialist" rhetoric of professional flagwavers. Remember
these words the next time you hear President Clinton being condemned as
a "draft-dodger." I submit that "draft-dodgers" were the people who
were actually keeping the spirit of our Founding Fathers alive, rather
than the latter-day Hessians or Prussians who think obedience to orders
In any case, when our Founding Fathers spoke of keeping and bearing
arms, they meant for military purposes, under the control of governments
and for purpose of national defence. To try and twist their remarks
into support for private guns for private purposes is to take them
seriously out of context.