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.

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