Some Thoughts About the Second Amendment

©2000 by Dale Franks

The position of the ACLU is that the Second Amendment guarantees a collective right of the people to keep and bear arms, but not an individual one. In order to exercise this right, therefore, one must be a member of the militia.

Some problems with this argument come to mind.

First, during the ratification debates about the Constitution, it seems fairly obvious that both the founding fathers and their contemporaries felt that the term "militia" had a fairly expansionists definition. When reviewing the contemporary literature on both the Federalist and Anti-Federalist positions, the impression one has is that the militia was considered to be comprised of the whole body of the population, or at least the whole body of the part of the population that were considered citizens. For example, both George Mason and the Federalist Farmer specifically defined the militia to be the whole body of the people.

Since this appears to be so, one wonders how to regard with any confidence arguments that are made that indicate the National Guard fulfils the role of the militia in the sense that the founding fathers meant. This seems especially true when one considers that the National Guard, while ostensibly an organization controlled by the states, can be federalized at the whim of the President. It is difficult to see how the founding fathers could have conceived such a National Guard to be a bulwark of liberty against the encroachment of the Federal government when the National Guard can be removed from the control of the states and placed in Federal service at any time. Of course, one must also consider that the constitution was written well over a century before the National Guard even existed.

Second, if the founding fathers actually meant to preserve the right of states to form militias one wonders why they simply didn't say something like "Congress shall make no law prohibiting the rights of the states to form militias". Such language would be quite similar to the language used in other amendments and would far more concisely make the cogent point. So, it does not seem unreasonable to conclude that the framers of the Constitution phrased this amendment differently because their intentions were framed differently.

Third, this argument seems unreasonable because the framers used the term "the people" in a way that obviously refers to individual rights in the First, Fourth, Ninth, and Tenth Amendments. If the framers meant the term "the people" to refer to individual rights in those amendments, then it seems questionable to assume that the same term means something entirely different in the Second Amendment.

Finally, one must look at the general social conditions that prevailed the time of the amendment's writing. The creation of the first formal law-enforcement organizations in the United States did not occur for 50 years after the writing of the Constitution. As such, the majority of citizens had no choice but to rely upon themselves for their own defense against lawbreakers. Surely the framers of the Constitution were aware of this fact, and aware of the necessity for citizens to provide for their own defense against lawbreakers in the absence of a formal law-enforcement structure.

Another argument one hears about the Second Amendment is that the Supreme Court has consistently upheld the right of states to limit the ownership of firearms, and that, even if the Second Amendment does prohibit the FEDERAL government from infringing on the right to bear arms, such prohibition does not apply to the states. Both of these arguments seem questionable when one considers the doctrine the Supreme Court uses when considering cases that concern other amendments.

For the past century, the Supreme Court has held to a doctrine known as the "incorporationist" doctrine. This doctrine holds that the Bill of Rights does apply to the states through the fourteenth amendment, and that whatever powers are denied to the Federal government through the bill of rights are likewise denied to the states. As applied to the First, Fourth, Fifth, Sixth, and Eighth Amendments, this doctrine has overturned a fairly large body of case law that existed before the 1890s. One wonders why pre-incorporationist cases about the Second Amendment are any more relevant to the modern argument than similar cases are to arguments about, say, the Fifth Amendment.

This is especially important point to make, considering the fact that, of all of the Second Amendment cases, only one case exists that was tried after the emergence of the incorporationist doctrine. This case, the United States v Miller, was decided in 1939. In this case, Jack Miller was charged with violating the National Firearms Act of 1934 by transporting an unregistered, sawed-off shotgun across state lines in interstate commerce.

Justice McReynolds, writing for a unanimous Supreme Court, emphasized that there was no evidence showing that a sawed- off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." And "[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Interestingly enough then, the Court implies that Miller might have had a valid argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use.

As it happens, Justice McReynolds was quite wrong on this technical point. In World War I, short- barreled shotguns had proven remarkably effective a clearing out German trenches, and were, in fact, used not only by American forces, but also by the British and French as well. This use of short-barreled shotguns predated Miller decision by 21 years. Indeed, the United States military STILL uses what is, in effect, a short-barreled shotgun, through the use of the multiple projectile round for the M203 grenade launcher. Instead of firing the standard 40 mm grenade, this round fires a large number of double-00 (.32 cal.) buckshot pellets. It is basically a 40 mm shotgun shell that is fired from the stubby (18 inch) barrel of the M203. It is considered quite effective in close-range jungle and urban combat. Perhaps Supreme Court justices, while presumably quite good lawyers, are less well qualified to make technical judgments about military equipment.

In any event, Justice McReynolds described the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia]. McReynolds also stated that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all] [s]how plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

Professor Sanford Levinson, writing in the Yale Law Journal, Volume 99 stated: "It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings."

Frankly, the Supreme Court's modern stand on the Second Amendment is entirely unclear, considering that Miller is the only post-incorporationist case that exists to date.

Some would argue that, considering the vast arsenal that can be employed by the nuclear-armed state, an armed citizenry is helpless against the much greater armament that can be employed against them by the state. In response, I would point out that both Northern Ireland and the occupied territories of the West Bank and Gaza have been granted increasing self-rule by Great Britain and Israel, respectively. Both Great Britain and (reportedly) Israel are nuclear-armed states, yet that disparity in military power did not, in the end, matter overmuch.

The last argument to consider is the argument that, even if all of the above is true, times have so changed as to make the Second Amendment unnecessary, and perhaps even counterproductive to maintaining social order. The obvious rejoinder, of course, is that the same argument could be made about other amendments as well. There is a serious social cost associated with the Fourth and Fifth Amendments, for example, in that obviously guilty criminals are freed from prosecution because of illegal or improper searches, or the inability of police to force a confession from suspects.

The entire notion of the Bill of Rights is that there are some liberties that the government may not suppress under any circumstances, regardless of the social cost those freedoms may inflict. In the context of the First, Fourth, and Fifth amendments, the decision has always been to choose freedom instead order when the two were in conflict. If we can, conversely, choose order over freedom when the Second Amendment is at stake, then what justification do we make against a similar decision in the future that may affect any of the other amendments?

If the Bill of Rights is fungible to the extent that it can be ignored when it is popular to do so, then the entire concept of "rights" is simply pointless. In such a case, what we call "rights", become merely privileges that can be granted or taken away depending upon the current will of the majority.

Top