Preface

This page examines the claims made in the following paper appearing on Handgun Control Inc's (HCI's) web site as of July 21, 1999, titled The Right To Be Armed: A Constitutional Illusion, by Dennis Henigan, Director, Legal Action Project. (Originally published in the San Francisco Barrister, December, 1989.)

HCI's paper is divided into three sections: "The Language of the 2nd Amendment", "The History of the 2nd Amendment", and "Judicial Construction of the 2nd Amendment". GunCite critiques the first two sections. (Other sections at GunCite discuss the federal judiciary's rulings on the Second Amendment. However, a more comprehensive treatment of lower federal court Second Amendment cases at GunCite is planned. Once completed, a critique of HCI's judicial analysis will be provided.)

GunCite's comments appear as red text, and one font size larger, inserted within the body of the paper. (The larger font is used to distinguish between GunCite's and HCI's comments for non-color printers.)

The Right To Be Armed: A Constitutional Illusion

By Dennis Henigan, Director, Legal Action Project
(Originally published in the San Francisco Barrister, December, 1989)

The debate over gun control offers a revealing case study of the misuse of the Constitution to serve a political objective. The gun lobby traditionally has opposed every reasonable legislative proposal designed to limit the accessibility of handguns to those likely to misuse them. HCI considers laws prohibiting civilian possesion of a handgun for defensive purposes, "reasonable" gun control. (See "Nobody Wants to Take Your Guns.") After all, in their view, even the law-abiding are "likely to misuse them". The NRA endorses programs and legislation which keeps guns from criminals, but doesn't infringe on the rights of law-abiding citizens. (See "Alternatives to Gun Control: Enforcing the Laws We Already Have.") What would be an acceptable compromise? See "A gun control compromise." This opposition has not been confined to arguments that gun regulations are unwise as a matter of policy. Rather, the political message of the National Rifle Association and its allies is invariably presented in constitutional terms. The message is not only that our elected representatives should not enact stronger gun laws; it includes the additional assertion that they cannot do so without offending the Constitution. The NRA spends literally millions of dollars every year promoting the idea that the Bill of Rights guarantees each individual a right to own a gun in the same sense that it gives each of us freedom of speech, assembly and religion.

The problem is that this reading of the 2nd Amendment is at odds with its language, its history and its interpretation by the courts. The NRA's version of the "right to keep and bear arms" is, in short, nothing more than a constitutional illusion created by mass advertising to further a political objective. However strong this constitutional fantasy is in the minds of the NRA's leadership, and however potent a political tool it has been, it remains a mirage nonetheless, which disappears when approached by real judges faced with deciding the constitutionality of real laws.

 

The Language of the 2nd Amendment

The 2nd Amendment reads: "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." One way in which the NRA constructs its mythical 2nd Amendment is by changing the language of the real one. The NRA's political ads consistently omit the part about the militia being necessary to a state's security. Indeed, the abridged version actually appears on the edifice of the NRA's Washington, DC headquarters.

The NRA's deliberate omission of the militia language speaks volumes, because it is precisely that language that expresses the purpose, and limit, of the right to keep and bear arms. As the United States Supreme Court wrote in its fullest discussion of the Amendment's meaning, the "obvious purpose" of the Amendment was "to assure the continuation and render possible the effectiveness" of state militia forces. United States v. Miller, 307 U.S. 174, 178 (1939). The Court added: "It must be interpreted and applied with that end in view." Therefore, the necessity of maintaining effective state militias is, by the language itself, the only concern of the Amendment, and the right to keep and bear arms exists only to the extent necessary to meet that concern. There is nothing in the Amendment's language even remotely suggesting a constitutional right to keep and bear arms for hunting, self-protection, target shooting or other individual pursuits unrelated to the operation of state militias.

It bears noting that when the Founders desired to create broad rights unqualified by a stated purpose, they knew how to do it and they did it very well. This is demonstrated by the hallowed language of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." If the Founders sought to create a right to keep and bear arms as broad and fundamental as our First Amendment freedoms, why include all the talk about the "militia" and the "security of a free state"?

HCI claims the militia clause of the Second Amendment "expresses the purpose, and limit" of the right to keep and bear arms. A court case and the language of the First Amendment are offered as evidence. Let's deal with the Miller case first.

Why is Miller offered as evidence in this section? It belongs in the Judicial Construction section. If the Miller case offered a linguistic analysis of the Second Amendment then it would be appropriate to put it here, but there is none in Miller.

Parenthetically, in fact "[t]he Court's first point, that the right to keep and bear an arm is dependent on the firearm's military value, is faulty... because the Court failed to consider fully the common law, and misinterpreted cited authorities. Rather, the Court only briefly discussed the common law and, moreover, did not consider the history of the adoption of the Second Amendment, both of which support the proposition that the Second Amendment guarantees and protects a fundamental individual right." (See "Where the Miller court erred.") One can find the entire Miller decision and what the court actually held here. (It essentially held, civilians could possess military firearms.)

If one is unfamiliar with the historical setting of the time, it is certainly fair to ask, "If an individual right were intended, why didn't the Founders simply write, 'Congress shall pass no laws respecting the right to keep and bear arms', just as they did with the rights in the First Amendment?" In this case, that wouldn't make sense because certain significant powers regarding the militia were delegated to the national government by the Constitution. It was within the power of Congress to make laws concerning the arming of the militia and therefore constitutional to pass firearms laws as they related to militia matters. For example, if Congress saw fit to specify a standard rifle or bullet caliber for the militia, they could pass a law mandating one. However the Congress could not enact a law that would infringe upon the right of the people to keep and bear arms.

Thus there is a key distinction between the right to keep and bear arms and many other rights. There never was a reason to delegate any lawmaking power to the national government concerning religion or the press, but there was a reason to delegate some legislative power to Congress regarding firearms as they related to the "arming and disciplining" of the militia, but not the people.

"It bears noting that when the Founders desired to create broad rights unqualified by a stated purpose, they knew how to do it and they did it very well." [emphasis added] This is mis-stating the purpose of the Bill of Rights. The Bill of Rights does not grant or "create" rights. It was meant to guarantee and preserve them. In fact one of the reasons the Federalists opposed a Bill of Rights was for the very reason of what has transpired today! They feared if a right were not expressly stated in the Bill of Rights, then some would assume the government had free reign over the unenumerated rights. Who could catalog all of our rights? The Ninth and Tenth Amendments were intended to solve this problem and protect our unenumerated rights. (For a slightly further elaboration of this topic, click here.)

The Founders had created a limited federal government with authority to legislate and execute the laws only within the powers that were expressly delegated to it. Sad to say, if there had been no Bill of Rights, we would be exercising fewer rights today, because the basic constitutional principles this country was founded on have been conveniently ignored by some (particularly judges), and forgotten or never learned by most.

Also, HCI asks, "why include all the talk about the 'militia' and the 'security of a free state'"? Because the Founders included the talk about the militia, it does not follow that a restricted right was intended. Nor does saying the Second Amendment is constructed differently from the first infer that the militia clause is a qualification. Many historians and scholars believe the militia clause is merely stating a rationale (not the sole purpose), not a qualification. Certainly all of the evidence from the Founding Fathers and their contemporaries points to a broad right. (See "Original Intent and Purpose of the Second Amendment". Strictly from a language construction context see "A Second Amendment Analogue". The following papers explain why a statement of purpose or preamble does not "obviously" infer a qualification of the main clause: The Commonplace Second Amendment and How The Courts Are Using The Second Amendment Against Us.)

The answer is made clear by a review of the Amendment's history.
GunCite wholeheartedly agrees.

The History of the 2nd Amendment

The 2nd Amendment is grounded in the deeply-felt conviction of many colonists that "standing armies" - that is, military forces composed of professional soldiers - were tools of oppression and not to be trusted. The colonists' fears were due in part to George III's heavy-handed use of British troops to compel obedience to the burdensome taxes and laws that eventually lead to the Revolution.

In the minds of many colonists, the preferable military structure to a standing army was the militia, which was composed of ordinary citizens instead of professional soldiers. By the time of the Revolution, each colony had adopted a militia law requiring that every man of military age (18-45 or 18-60) be enrolled in service and appear for training several days each year. Generally speaking, these men were expected to appear for duty bearing their own arms, not weapons supplied to them.

When war with England broke out, the colonies held conventions to establish new state governments. State constitutions were written by eleven colonies and eight of these constitutions included a Bill or Declaration of Rights. These Declarations had an important influence on the federal Bill of Rights. The Virginia Bill of Rights, the first adopted, expressed both the colonists' allegiance to the idea of a citizen militia and their fear of standing armies:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.

Reprinted in Sources of Our Liberties 312 (Perry & Cooper ed. 1959) [hereinafter cited as "Sources"].

There is little doubt that this provision of the Virginia Bill of Rights was concerned exclusively with the distribution of military power and the proper role of the military in a free society. The language makes no suggestion of a right to bear arms. The first state to adopt such language was Pennsylvania, which did so as part of its constitutional provision addressing military matters:

That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Reprinted in Sources, supra at 330.

Other state constitutions proceeded to adopt variations of either the Virginia or Pennsylvania models. The states which included "right to bear arms" language did so in the context of provisions dealing with military matters. It is reasonable to see the 2nd Amendment's language of Virginia with the "right to bear arms" language of Pennsylvania. It is noteworthy that the Pennsylvania language recognizing the people's right to bear arms "for the defense of themselves" did not find its way into the 2nd Amendment, leaving only the security of the state as the proper object of the right being recognized.

(As an aside, for more on the differing early state constitutions and their declarations of rights, see The Second Amendment and the Historiography of the Bill of Rights)

Although distrust of a standing army was expressly addressed in most of the state constitutions, it went unmentioned in the document produced by the Constitutional Convention in 1787. The chief purpose of the convention was to remedy the paralyzing weakness of the central government under the Articles of Confederation, including its lack of military power. The new military powers of Congress in Article I, Section 8 of the Constitution included the power "to raise and support Armies," "to provide and maintain a Navy," and "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." The proper extent of federal authority over the militia was heatedly debated and was resolved by a division of authority between the states and the central government which reserved to the states "the appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by Congress."

The new Constitution was submitted to the states for ratification and the battle lines were drawn between the document's proponents - the "Federalists" - and its opponents - the "Anti-Federalists." The focus of the Anti-Federalist attack was the absence of a bill of rights restraining the power of the central government. An important part of this opposition was that the compromise militia clause constituted an inadequate check on the power of the standing army.

The Virginia ratification convention turned out to be pivotal to the eventual outcome of the debate, particularly as to the military clauses of the Constitution. George Mason articulated the Anti-Federalist fear that the Constitution did not sufficiently protect the state militias from destruction:

The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless - by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them. . . .

3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836), at 379 [hereinafter cited as "Elliot's Debates"]. The Anti-Federalist concern, therefore, was that the Congress might allow the state militias to die simply by failing to arm them. James Madison countered Mason's arguments asserting that "the federal and state governments were 'coequal sovereignties', adding: 'I cannot conceive that this Constitution, by giving the general government the power of the arming the militia, takes it away from the state governments. The power is concurrent, not exclusive.' " (Source: The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment [hereinafter Halbrook]) The Virginia Convention proposed 20 amendments to the text of the Constitution, including that "each state respectively shall have the power to provide for organizing, arming and disciplining its own militias, wheresoever Congress shall omit or neglect to provide for the same." 3 Elliot's Debates, supra at 663. There is no suggestion in the Virginia debates that the delegates were concerned with an individual right to possess weapons outside the militia context. [emphasis added]

What this essay fails to tell you, is that not only were 20 Amendments proposed, but 20 items forming a bill of rights were also submitted. The amendments were meant to be inserted as text into the Constitution. They dealt with the structure and powers of government, not individual rights. (Incidentally, Virginia's amendment regarding the militia was rejected. Further [from Stephen P. Halbrook, That Every Man Be Armed, 1984] "When the Senate came to consider the proposed amendments in early September 1789, it became evident that, while the right of individuals to keep and bear arms would not be questioned, attempts to strengthen recognition of state rights over militias...would fail.")

The preamble to Virginia's proposed bill of rights read:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:--" [emphasis added]

The 17th item states:

"That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

Note the right to arms provision is an independent clause (separated by a semi-colon) from the militia clause. The right to arms is no more dependent on the militia clause than freedom of religion is dependent on freedom of the press in the First Amendment, both clauses are separated by semi-colons (see the First Amendment above).

"There is no suggestion in the Virginia debates that the delegates were concerned with an individual right to possess weapons outside the militia context." Oh, really? Not only does the preamble indicate otherwise, but the following quote shows that an armed population (outside the context of a "well-regulated" militia) was seen as a check on tyranny (against something other than a standing army), and it was even seen as a safeguard against religious persecution. Federalist, Zachariah Johnson told the Virginia convention their liberties would be safe because:

"the people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people, voluntarily and freely chosen. Under these circumstances should any one attempt to establish their own system [of religion], in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is the principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress." (Source: Joyce Lee Malcom, To Keep and Bear Arms, Harvard College, 1994) [hereinafter Malcom]

When all of the evidence is examined from the Virginia ratification convention: the proposed bill of rights, its preamble, and the amendments, it is clear that this "pivotal" convention meant to protect a broad individual right to keep and bear arms as well as a strong militia.

HCI has confused the relationship between a militia and the people. The right to keep and bear arms is not dependent on the militia. Rather it is a militia which is dependant on the people's right to keep and bear arms and therefore the right was not to be infringed.

In order to avoid a new constitutional convention that might reconsider the entire document, Federalist James Madison drafted a Bill of Rights for presentation at the First Congress. His draft of the provision that became the 2nd Amendment read:

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

E. Dumbauld, The Bill of Rights and What It Means Today 207 (1957) [hereinafter cited as "Dumbauld"]. Thus, the "right to keep and bear arms" was introduced into the language of the proposed amendment (it had been omitted from the Virginia convention proposal ), (As we have seen this is not true, it was in fact submitted as part of Virginia's proposal for a Bill of Rights) but only as part of a provision dealing with military matters. (As mentioned, the right to keep and bear arms was not to be infringed, period.)

The language ultimately adopted by the Congress dropped the religious exemption language and rearranged the language to put even greater emphasis on the militia purpose. This paper neglects to inform us that the Senate rejected a proposal to add "for the common defense" after "to keep and bear arms" [Malcom]. Similarly the Senate altered the original version of what was to become the First Amendment, by removing "from the common good" from the people's right to assemble. (Source: Halbrook) It is instructive to contrast this language with that proposed by the New Hampshire ratification convention suggesting a far broader right to possess firearms: "Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion." Dumbauld, supra at 182. It is evident that Madison and the Congress had available a formulation of the Amendment that would have created a broad individual right divorced from a military purpose. It is significant that they chose not to adopt it.

Claiming that the New Hampshire proposal suggested a broader right than the Second Amendment is not only ludicrous, but strikes GunCite as being disingenuous at best. Had that language been used instead, many of the identical arguments against an uninfringable individual right would still be employed as well as others. For example (setting aside original intent), without the militia clause it would be much easier to make the case that citizens have no right to own military weapons unless they are enrolled in the armed services. Further since no right to bear arms is expressly stated, we could not only require all guns be locked-up, but that they be stored at gun clubs or authorized storage facilities (having title to a gun is still possession). Broad classifications of guns and gun calibers could be constitutionally outlawed (there was no "shall not be infringed" clause). Licensing would not be unconstitutional. It could also be interpreted as allowing prohibition of all firearms sales. (Nobody who currently possessed a weapon would be disarmed.)

Thus, there is no indication from the history of the 2nd Amendment that the Founders were seeking a broad guarantee of the individual right to own firearms for any purpose. Wrong. HCI's paper ignored the evidence and failed to refute it. On the contrary, the expressed intention of the framers was to guarantee that state militias remained armed and viable, and the "right to keep and bear arms" must be understood as implementing that purpose. The implication of this intention is that the constitutionality of a statute regulating firearms should turn on whether the statute affects firearms in such a way as to adversely affect a state's ability to raise and maintain an armed "well-regulated militia."

Other Second Amendment sections at GunCite present historical evidence that a broad right was intended, it will not be repeated here. None of that evidence is challenged or refuted by this paper.

Drastic changes in the nature of the militia since colonial times have virtually guaranteed that reasonable regulation of the private ownership of firearms will not offend the Constitution. The colonial concept of a citizen military force using firearms owned by the militiamen disappeared with the 1903 enactment of the Dick Act, ch. 196, 32 Stat. 777, which provided for an organized militia to be known as the National Guard, to be equipped and armed through federal funds and subject to the shared control of the states and the federal government. Although all able-bodied males between 18 and 45 are designated members of the "unorganized militia,," 10 U.S.C. § 311 (1982), such persons are neither supplied arms by the federal government prior to a call to National Guard duty nor are they required to furnish their own arms. In addition, no state requires its citizens to supply their own firearms for service in a militia.

Regardless of whether militia members were expected to bring their own arms, or the states supplied arms to the militia, the right was not to be infringed. For example, Rufus King, a Massachusetts delegate to the Constitutional Convention of 1787, when discussing the meaning of the Militia Clause in the Constitution said, "arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury..."(Source: Halbrook)

Therefore, since privately-owned weapons are no longer used to arm citizen militias, as they were in colonial times, the regulation of such arms should face no 2nd Amendment barrier.

As we have seen, this conclusion directly contradicts the intentions of the founders. Regardless of who supplied the militia with arms, the right was not to be infringed.

This paper began with the following statement:

"The debate over gun control offers a revealing case study of the misuse of the Constitution to serve a political objective."

GunCite again agrees wholeheartedly.

 

Judicial Construction of the 2nd Amendment

Because there were no federal firearms laws until the 1930's, the early Supreme Court 2nd Amendment cases involved state statutes. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), the Court held that the 2nd Amendment operates to limit only the power of the federal government, not of the states. It should be noted that these cases were decided during the era when the accepted principle was that the Bill of Rights did not restrict state governments. Although we have since observed the selective application to the states of certain other amendments through the due process clause of the Fourteenth Amendment, the purpose of the 2nd Amendment suggests that the early decisions are likely to stand. The purpose of the Amendment was not to protect individual citizens against disarmament by the states, but to protect state militias from disarmament by the federal government. With the exception of one 1902 ruling of the Idaho Supreme Court, In re Brickey, 70 P. 609 (1902), the courts have been unanimous in refusing to apply the 2nd Amendment to state regulation of firearms. See e.g. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Application of Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); State v. Amos, 343 So. 2d 166, 168 (La. 1977); Commonwealth v. Davis, 343 N.E.2d 847, 850 (Mass. 1976); Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court directly addressed the scope of the 2nd Amendment and its impact on federal gun laws. The issue was whether the National Firearms Act of 1934 violated the 2nd Amendment insofar as the statute barred the interstate transportation of an unregistered shotgun having a barrel length of less than 18 inches in length. As noted previously, the Court held that the Amendment must be applied in light of its "obvious purpose" to assure the continuation of state militias. Miller, 307 U.S. at 178. The Court upheld the statute because no showing had been made that private ownership of sawed-off shotguns had any relation to the preservation of a well-regulated militia. Miller, 307 U.S. at 178. The Court's analysis leaves no room for arguing that the "right to keep and bear arms" is a broad individual right to own firearms for lawful purposes apart from maintenance of a state militia. The implication of Miller is that only statutes having an adverse impact on the arming of a state militia would contravene the 2nd Amendment. Miller, however, is not the Supreme Court's last word on the subject. In Lewis v. United States, 445 U.S. 55 (1980), the Court upheld the federal statute barring convicted felons from possessing firearms against equal protection attack. Significantly, the Court determined that the statute needed only a "rational basis" to survive constitutional attack because "[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Lewis, 445 U.S. at 65, n.8 (emphasis added). Miller is cited in support of this proposition. It is difficult to imagine a more direct refutation of the notion that the 2nd Amendment creates an individual right to own firearms comparable in breadth and importance to our First Amendment freedoms.

Following Miller's direction that a firearms statute is unconstitutional only if it adversely affects a state's ability to maintain a militia, the lower federal courts consistently have upheld laws regulating the private ownership of firearms. These cases reject the existence of a broad right to bear arms for purposes other than participation in a state militia. See e.g. Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973) (". . . the right to keep and bear arms is not a right given by the United States Constitution"); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (Statute barring felons from transporting firearms in interstate commerce is constitutional because there is no evidence that it "  . . . in any way affects the maintenance of a well regulated militia"); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) (" . . . there can be no serious claim to any express constitutional right of an individual to possess a firearm"); United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972) (Federal law barring felons from possessing firearms does not conflict with the 2nd Amendment "since there is no showing that prohibiting possession of firearms by felons obstructs the maintenance of a 'well regulated militia'"). Of the modern federal court decisions, the most far-reaching is the Seventh Circuit's in Morton Grove, in which the Court upheld a local ban on the possession of handguns against a 2nd Amendment challenge, not only because the Amendment does not apply to the states, but also because " . . . the right to bear arms is inextricably connected to the preservation of a militia . . . the right to keep and bear handguns is not guaranteed by the second amendment." Morton Grove, 695 F.2d at 270. That the 2nd Amendment poses no threat to laws affecting the private possession of firearms may well be the most well-settled proposition in constitutional law.