Reprinted from The Heritage News, 1998

The meaning of the Second Amendment to the United States Constitution has come into serious question as of late, but comparatively little guidance from the courts is available. Indeed, of all the Bill of Rights amendments excepting for the third, "no amendment has received less judicial attention than the second.''¹

What few cases that are available are antiquated and do not provide guidance against the latest attempts to hack away at America's guarantee to arms: the Brady Bills I and II, gun-a-month laws, licensing, outrageous ammunition taxes, and other barriers. Clearly, no 1800s court nor Founding Father could predict the grammatical warping and outright denials of the guarantees that must have seemed so obvious to them. Indeed, the Founders were probably more concerned about whether or not America would devolve into a monarchy² than about preempting every possible attack on what must have seemed to them to be an obvious concept.

Further complicating matters is the narrow scope of the few cases the Supreme Court has decided. United States v. Cruikshank³ said that the Second Amendment only applies to the government, not to private citizens. Presser v. Illinois⁴ only stated that citizens cannot parade through towns while armed. The final oft-cited case, United States v. Miller⁵ upheld a prohibition of shipping unregistered shotguns having barrels of less than 18 inches across state lines. Dred Scott v. Sanford⁶ laid down a flat provision that "Congress can not deny to the people the right to keep and bear arms," but this was enumerated in a list of every other right citizens have in territories, with little consideration of the meaning of the Second Amendment. Thus, the Supreme Court gives little guidance about the Founders' intentions regarding the Second Amendment.

The idea of a right to keep and bear arms arising from the Law of Nature is surprisingly bated by those liberals who profess to stand for everyone's "natural" rights. These same people who promote absolute free speech, want absolute religious freedom, and demand an absolute end to cruel and unusual punishment, want an absolute ban on a right just as fundamental: the right to keep and bear arms. Their goal is obstructed not just by public opinion (which the Handgun Control. Inc. propaganda machine headed by the Brady attempts to forcibly remold), but also by the undeniable truth of the Second Amendment. Their attacks take a number of forms, none of which makes an ounce of sense when examined scrupulously.

The meaning of the Federal Second Amendment can be examined through the concurrent state guarantees. In 43 states, state constitutions provide a secondary guarantee to the right to keep and bear arms.⁷ These state Bills of Rights can provide further guidance necessary to discovering the Founders' meaning in the Federal Second Amendment.

The Second Amendment can be divided into two clauses, the first reading, "A well-regulated militia, being necessary to the security of a free state...." Gun control advocates here seek to warp this into saying that the National Guard is the militia. Warns historian Joyce Malcolm, however,

Indeed, George Mason made a distinction between a 'standing army' and a 'militia' of civilian men.⁹ That is, the 'militia' was to be composed of all males capable of "bearing arms supplied by themselves."¹⁰

Furthermore, we consider the states' definitions of 'militia', a definition which is absent from the Federal Constitution. Indiana's definition is typical of state constitutions I surveyed: "A militia shall...consist of all persons over the age of seventeen years...." The definition goes on to divide the militia into "active and inactive classes."¹¹ The active class would be a National Guard-type organization, but the inactive class must then include all able-bodied males over age seventeen.

The Indiana Constitution, however, fails even to mention a right to keep arms guaranteed only to the militia as some gun-ban advocates might suggest of the Federal Second Amendment. Its guarantee to arms reads, "The people shall have a right to keep and bear arms for the defense of themselves and the State."¹² Clearly then, the right to arms is guaranteed to the people, not to the militia.

Other states' constitutions also dispute the militia interpretation of the Federal Second Amendment. Maine promises that the "right to keep and bear arms...shall never be questioned."¹³ Kentucky makes a similar provision, but allows the General Assembly "to prevent persons from carrying concealed arms."¹⁴ Kansas's Bill of Rights guarantees citizens the right to "bear arms for their defense and security,"¹⁵ suggesting support for the NRA's belief in having arms for defending oneself. Thus, the state constitutions seem to support the interpretation of the Second Amendment as being a right guaranteed to the people, not to a separate militia such as the National Guard.

A second interpretation of the Second Amendment says that it guarantees the states the right to have militias. This seems historically plausible in that Anti-Federalists at the time of the founding were opposed to a strong central government that could eventually overrun the states. States' having militias could theoretically prevent such a violation of Federalism. The only flaw in this interpretation is that some states have the same wording in their Bills of Rights as the Second Amendment. The Constitutions of Alaska, Hawaii, North Carolina, and South Carolina each have the same wording as the Second Amendment.¹⁶ If the Second Amendment were intended by the Founders to guarantee the states the right to have militias, the states would be begging the question should they guarantee themselves the right to have militias. Thus, the Second Amendment must be taken to guarantee individuals the right to join a state militia and to bear arms for this purpose, as well as to defend themselves. This interpretation is plausible because of both the wording of state constitutions and the fact that such an interpretation is broader and more consistent with Enlightenment individual rights thinking: if individuals are guaranteed the right to join a state militia, then the state is ipso facto guaranteed the right to a militia.

Beyond the states' guarantees, an examination of the philosophy motivating the Founders will help to discover their intent. The earliest mention of the lack of arms leading to tyranny was in Plato's The Republic, where he uses a child to represent a despot and a father to represent the people:

A tyrant cannot overtake an armed populace. Thus any tyrant must first disarm the populace so that their only resistance is death. A disarmed population also lacks ability to defend itself against foreign intrusion. In the Holy Bible, Judas warns his people,

Alfred the Great (c. 870) did not only encourage his people to arm themselves, he required it at the peoples' expense, as did numerous other kings for the next 800 years.¹⁹ The English common law and Bill of Rights of 1689 also guaranteed an individual right to keep and bear arms. As Alan Gottleib of the Second Amendment Foundation explains,

The concept of an armed people defending themselves was further endorsed by Enlightenment thinkers such as Sir William Blackstone, who considered the right to be among the "Absolute Rights of Individuals."²¹ Sir Edmond Coke, who coined the phrase "a man's home is his castle", said so in the sense that "the laws permit the taking of arms against armed persons."²²

From Britain, the right to arms is traced to the Founders. James Madison argued in the Federalist No. 46 that tyrants are "afraid to trust the people with arms," a prophetic vision when viewed in the context of Nazi Germany, where firearms registration lists and outright bans on Jewish possession were the norm.²³ Joseph Goebbels, Nazi propaganda Minister, wrote of the Warsaw Ghetto Uprising that "this shows just what you can expect from Jews if they lay hands on weapons."²⁴ In the light of Jewish history, it is no wonder why the Israeli populace is so heavily armed. Violence and guns are a daily part of Israeli (and Swiss) life, yet we don't hear of Israeli or Swiss schoolboys going of shooting rampages and killing their classmates and teachers. If a gun culture is to blame for the Jonesburo [and Columbine] shootings, then so must a gun culture be blamed for any violence in Israel and Switzerland. Too often, liberals rush to cure the symptoms and ignore the real causes. Israeli violence is blamed on ethnic strife, yet America's violence, which has less obvious causes, is blamed on guns.

Returning to the Founders, many people may view them as eccentric gun nuts, but even the less radical of their ranks supported the people's right to keep and bear arms. George Washington claimed that "a free people ought...to be armed."²⁵ John Adams, the second President, agreed: "I do not deny [that] the inhabitants had a right to arm themselves."²⁶ Thus, even the less radical of the Founders suggest support for the NRA's view. Fresh in their minds were the events of 13 years earlier, when armed citizens at Lexington and Concord started the battle that turned them from colonists to citizens.

As mentioned earlier, the State Constitutions support the people's right to keep and bear arms. One such guarantee was penned by Thomas Jefferson, who wrote in the Virginia Constitution of 1776, "No free man shall be debarred the use of arms within his own land."²⁷ Clearly then, the right to keep and bear arms was meant to be a right held by the people individually. The Second Amendment does not guarantee the right to have a National Guard, to collectively own guns, or to own guns for hunting purposes, as none of these has any basis in the Founders' writings. When Bill Clinton talks about going duck hunting as the right preserved by he Second Amendment during his State of the Union Address,²⁸ we know how little he understands about our rights, and we must wonder how he could have held a straight face as he took the Oath of Office to protect the Constitution.

We have thus arrived at a critical crossroads. We can elect candidates like House of Representatives candidate J.B. Pritzker (D-Ill), who promises to "stand up to the gun lobby and finally ban the sale of handguns,"²⁹ or we can acknowledge that guns are only a symptom of America's ills, not their cause. The infamous bank-robber shootout in Los Angeles last year was resolved when police ran to the nearest gun shop and convinced the owner to loan them some civilian guns so they could match the robbers' gunpower. Our problems today are deeper than guns. Police are poorly paid, armed, and supported. The family has decomposed like last week's grass clippings. Children's cartoons portray violence as a solution to petty problems like catching a roadrunner for dinner. Even Rocky & Bullwinkle, a Cold War anti-Communist propaganda instrument cloaked under non-violence, once featured the Fearless Leader shooting Boris after Boris sinks a boat filled with stolen supplies. America can ban handguns and wonder why her violence problem worsens, or we can address the real cause of crime and acknowledge the truth in the bumper sticker that reads, "Guns Cause Crime Like Flies Cause Garbage." That garbage festers in America's broken homes, rotten cities, economically ruined rural areas, and paralyzed police forces. Guns are an easy, obvious target for knee-jerk politicians, cash-strained city managers, demagogic candidates lacking real issues, and weak-kneed legislatures. Americans can treat the problem, however expensive, or they can take the cheap way out and give up one of our fundamental rights. When my choice is between giving up money or giving up a right, I'll always give up the money and preserve the right.

¹ Spreecher, "The Lost Amendment," 51 ABAJ 554 (1965).

² Catherine Drinker, Miracle at Philadelphia, 189 (1966).

³ 92 U.S. 542, 553 (1876).

⁴ 116 U.S. 252, 265 (1886).

⁵ 307 U.S. 174 (1939).

⁶ 60 U.S. 393 (1857).

⁷ Dowlut, "Federal and State Constitutional Guarantees to Arms," 15 U Dayton LR 59 (1989).

⁸ LaPierre, Wayne, Guns, Crime, and Freedom, 15 (1994).

⁹ Ibid 5.

¹⁰ U.S. v. Miller, 307 U.S. 174 (1939).

¹¹ Indiana Constitution of 1851. Article 1 § 1.

¹² Ibid Article 1 § 32.

¹³ Maine Constitution of 1820. Article 1 § 16.

¹⁴ Kentucky Constitution of 1850 Bill of Rights. § 25.

¹⁵ Kansas Constitution of 1855 Bill of Rights. § 4.

¹⁶ Dowlut ibid 84-88.

¹⁷ Plato, The Republic, reprinted by Oxford UP in 1965, 295.

¹⁸ The Holy Bible, Catholic Life Edition, I Maccabees 3:58-60.

¹⁹ Gottlieb, Alan M., "Gun Ownership: A Constitutional Right," 10 N. Kent. LR 126-7 (1982).

²⁰ Ibid 115.

² LaPierre ibid 24.

²² Gottleib ibid 127.

²³ LaPierre ibid 167.

²⁴ Ibid 169.

²⁵ Ibid 8.

²⁶ Ibid 4.

²⁷ Ibid 7.

²⁸ Gingrich, Newton, To Renew America, 202 (1995).

²⁹ Pritzker was soundly defeated in the Illinois primary election of 1998.