Column/Guest editorial #6 by Jon Roland, Constitution Society,
210/224-2868, May 29, 1995
Second Amendment "Frauds"
The advocates of gun control have begun using stronger language in trying to
advance their favored interpretation of the Second Amendment to the U.S.
Constitution. They quote former Chief Justice Warren Burger that the Second
Amendment "has been the subject of one of the greatest pieces of fraud, I
repeat the word fraud, on the American public," saying that the "right
to bear arms" is a right of the states or state militias like the National
Guard, not of individuals. They argue that the well-regulated militia clause in
the Second Amendment is a restriction on the declaration of the right, and that
"well-regulated" means "regulated by the state government".
Harvard law professor Laurence Tribe describes the situation by saying "...
there are at least two constitutions.... a kind of mythic constitution that
reflects widely held beliefs, slogans. And then there is one that starts with a
piece of paper in the Archives and has an extensive history."
This line of argument is also probably doing more to discredit the cause of
gun control and those who advocate it than almost anything else they are doing.
The American people are not fools. They can read the Constitution and the words
of its Framers for themselves, and they do, and after they do they see that the
fraud is being committed by the political and legal elites that advocate gun
control. There are many provisions of the Constitution on which the Framers
offer little interpretative guidance, but the right to keep and bear arms and to
assemble as independent militias is not one of them. Most of the Framers wrote
extensively and definitively on the subject, leaving little doubt as to what
they intended. It is the elites that are perpetrating a myth.
"Well-regulated" was a term of art in colonial times. It meant "organized
and trained", not "regulated by a government". The militias to
which the term was applied were independent of official control, unless it was
locally elected by the same people who comprised the militia. A "well-regulated
militia" was emphasized as the main purpose of the right to keep and bear
arms, and not as the only purpose. There are no "collective" rights in
the Constitution. All rights are individual.
Nor is the Second Amendment only a restriction on the national government.
The First Amendment may not have originally applied to the states, but the
language of the other nine amendments of the Bill of Rights are more general,
recognizing natural rights and common law civil rights, and therefore applying
to the states as well. If there was any confusion about that, the Fourteenth
Amendment clarified the issue, extending all of the Bill of Rights to the
states. Indeed, extending the Second Amendment and its right to keep and bear
arms was one of the main purposes of the Fourteenth, to counter efforts by
former slave states to disarm their former slaves and oppress them.
Nor is the National Guard a state militia. The National Guard is raised
under the authority of Congress to raise an army. It is part of the Army, and
not the militia. Neither are State Guards the state militia. The Framers made it
very clear that the true militia had to be comprised of the entire population of
a jurisdiction, not just a select faction. They called the latter a "select
militia", and warned that it could pose as great a danger to liberty and
the Constitution as a standing army.
They provided that the national government could not appoint officers of the
state militia, but again, did not say only the state government could. When the
Framers used the term state, they always meant the "people" of the
state, not the "government" of the state. That does not rule out state
direction and regulation of its militia, when the entire obligatory militia,
consisting of all those required to keep and bear arms and to respond to
call- ups, is called up on a statewide basis, but when not engaged in such a
statewide call-up, the militias revert back to local self-governance.
Since gun-control advocates cannot succeed in deceiving the public on this
issue, their continued repetition of this line of argument stands not so much as
fraud as it does as intellectual dishonesty and an insult to the intelligence of
the people. Such arrogance irritates people, and makes charges of government
corruption and abuse even more credible, and makes those taking this line appear
to be part of a conspiracy to deprive people of their constitutional rights.
There are more important positions the ruling elites should be trying to
salvage: environmental protection, medical care, campaign financing, to name a
few. They need to concede this one and move on.