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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 SOMETIMES CLAIMED. 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 U.S.C. 31] 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 14th amendment. 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 not so. 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 continued---] 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 confidence. 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 passed. 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 honourable. In conclusion: 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 probably utopian. III. OTHER MISLEADING, OUT OF CONTEXT QUOTES FROM AMERICAN REVOLUTIONARIES ARE OFTEN CITED IN AN ATTEMPT TO JUSTIFY ARMED ANARCHY. "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 them. 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 Massachusetts, 86-87.) 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 power. 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 1965: 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 is praiseworthy. 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.


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