Remarks by Dennis A. Henigan
Director, Legal Action Project
Brady Center To Prevent Gun Violence
James Madison University
March 14, 2002

[This is the text of an address given as part of the James Madison Week celebration at James Madison University. The address followed remarks given by attorney Steven Halbrook, representing the National Rifle Association.]

When the University first contacted me about this program, I realized it was a very special opportunity: a chance to be heard on the meaning of the Second Amendment, at an event honoring its author, at the University established in his name. I'm going to take special care about what I say here today. I don't know how Steve feels, but I have this nagging feeling that if I am wrong about the Second Amendment, in this place, on this occasion, Mr. Madison will find a way to let me know.

What Is at Stake?

Much of Steve's remarks addressed what the Framers were thinking in 1791. I also intend to play amateur historian today. I will give a very different version of the history of the Second Amendment.

Before I turn to the Amendment's history, it is important to raise this question: As we debate the meaning of the Second Amendment in 2002, what is at stake? To what extent could this debate affect how we think and how we live?

It is very clear that the National Rifle Association and other opponents of sensible gun laws believe there is a great deal at stake. For them, this is not just a theoretical exercise. They believe the Second Amendment imposes substantial limitations on the power of our elected representatives to enact laws to prevent dangerous people from gaining access to firearms.

For example, several years ago, in a case called Farmer v. Higgins, Steve Halbrook filed a petition for certiorari in the U.S. Supreme Court arguing that it was unconstitutional for Congress to ban possession of machine guns by the civilian population. We are talking here about fully automatic weapons that can fire hundreds of rounds per minute. Fortunately, the lower federal courts upheld the machine gun ban and the Supreme Court did not disturb those rulings. It is important to understand that the NRA and other adherents to the individual rights view would like the Second Amendment to be a potent weapon against even the most modest gun laws. They seek a constitutional principle that would invite courts to second-guess the judgments of our legislators concerning control of firearms.

A constitutional theory that limits the power of our elected officials on gun policy issues ought to be very troubling to us. After all, guns are the only widely available consumer products designed to kill. Of course there are other consumer products that can be used to kill or inflict serious injuries. Autos, knives, lawn mowers and many others come to mind. Guns, however, are designed to kill or maim. As a result, guns are in great demand by persons likely to use them in violent criminal acts. There is a huge illegal market in guns, which threatens us all. When used in criminal acts, guns are far more lethal than other weapons. Assaults with guns are five times more likely to result in death than assaults with knives. Guns are designed to be lethal and they are more lethal.

Gun violence exacts an enormous toll on our country. Over 28,000 Americans are lost every year to gunshot wounds. Guns exact a particularly egregious toll on our Nation's youth. In 1998, 10 children and teenagers died every day from gunshots.

If there is any issue on which we should want courts to refrain from second-guessing the wisdom of legislative judgments, it is control of deadly weaponry.

I suggest that after September 11, it is even more imperative that our elected representatives be free to respond strongly and creatively to the problem of easy access to firearms by dangerous people. Gun violence is not just a public safety issue. It is a national security issue as well.

One month after September 11, President Bush told the United Nations: "We have a responsibility to deny weapons to terrorists and to actively prevent private citizens from providing them." I entirely agree. Can anyone credibly deny the connection between guns and terrorism? Consider the often-seen video footage of Osama Bin Laden. He is not pictured holding a box cutter. He is aiming an AK-47, with a high-capacity ammunition magazine, precisely the kind of gun Steve Halbrook has argued there is a constitutional right to own. An Al-Qaeda manual, discovered at a training facility near Kabul, counsels Al-Qaeda operatives in the U.S. to "obtain an assault weapon legally, preferably an AK-47."

I'm not only talking about Al-Qaeda. I'm talking about the Irish Republican Army obtaining scores of guns from a corrupt Florida gun dealer. I'm talking about the racially motivated terror of white supremacist Benjamin Nathaniel Smith, whose 1999 shooting rampage against blacks, Jews and Asians in Illinois and Indiana killed two and wounded nine others. I'm talking about Pakistani terrorist Mir Aimal Kasi's 1993 assault weapon attack on the CIA. Terrorists used guns to commit acts of violence before September 11. They will do so again. As our nation continues to face an extraordinary terrorist threat, we ought to be cautious before embracing a reading of the Second Amendment that would weaken the power of our legislators to control access to firearms.

Meaning of United States V. Emerson

There are two competing theories of the Second Amendment's meaning: (1) the "militia" interpretation, under which the people are granted the right to keep and bear arms only in connection with membership in, and service to, a militia organized by the states; and (2) the "individual rights" interpretation, under which individuals have the right to possess guns for personal uses unrelated to the well regulated militia.

Contrary to Steve Halbrook's suggestion, the militia interpretation does not claim that the right to keep and bear arms belongs to the states, rather than the people. The dispute is not whether the right belongs to the people. Rather, it is about the purpose and scope of the right granted to the people.

Until last year's ruling of the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson, every federal circuit court had adopted the militia interpretation. Indeed, last year alone, three other federal circuit courts, including the Fourth Circuit (which includes the federal courts in Virginia) issued rulings rejecting the individual rights view. Invariably, courts adopting the militia interpretation upheld the gun laws at issue because they did not affect arms bearing as part of the organized state militia.

In Emerson, two of three federal circuit court judges adopted the individual rights view. Although the NRA celebrated that decision, the celebration was somewhat tempered. Despite endorsing the individual rights view, those two judges also found that the gun control law at issue did not violate the Second Amendment as applied to defendant Timothy Joe Emerson. The Court unanimously rejected the NRA's position that the Second Amendment precluded indictment of Timothy Joe for possessing guns while under a domestic violence restraining order. It thus reversed the lower court, which had adopted the NRA's view and had thrown out the indictment.

To appreciate how extreme the NRA's Second Amendment position is, you need to know something about Timothy Joe Emerson. He told his wife's friends if they set foot on his property, they would be "found dead in the parking lot." He told an employee he had an AK-47 and planned to pay a visit to his wife's boyfriend. He threatened his wife and daughter with a Beretta pistol. In addition to the Beretta, he owned an M-1 carbine, an SKS assault rifle with a bayonet and an M-14 assault rifle. Yet the NRA's view was that Emerson's gun possession was constitutionally protected, even though he was under a domestic violence restraining order. I suggest Timothy Joe Emerson is precisely the kind of person we don't want possessing guns.

Thus, it is still not clear whether the individual rights view will be a potent weapon against gun laws, even if the courts adopt it. Before Emerson, no gun law had ever been struck down by the federal courts on Second Amendment grounds. This is still true after Emerson.

My organization strongly supports legislation that would mandate background checks on all gun purchasers, whether from licensed dealers or from unlicensed, private sellers. The Brady Act, by requiring background checks for purchasers from licensed dealers, has stopped over 700,000 felons and other prohibited purchasers from buying guns over-the-counter. The Brady Act, however, did not go far enough. It did not reach private sales. I see nothing in the Emerson decision that would suggest that legislation to close this loophole would violate the Constitution.

Validity of Individual Rights View

The two-judge majority in Emerson reached the right result for the wrong reasons. Both the language and history of the Second Amendment show that its subject matter was not individual rights, but rather the distribution of military power in society between the states and the federal government.

The Second Amendment is unique in that its purpose is described in its text: "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." If Madison and the other Founders wanted to create a broad, individual right, why did they include the preamble at all? When Madison wanted to recognize broad, individual rights, he knew how to do it. Consider the unqualified language of the First Amendment: "Congress shall make no law…abridging the freedom of speech, or of the press…." Steve Halbrook, in his presentation, pointed out a number of formulations of the "right to keep and bear arms" where the right was not connected to the militia, such as the Pennsylvania minority provision and the language drafted by Sam Adams. These broader statements were not written into our Constitution.

In United States v. Miller (1939), the United States Supreme Court held that the "obvious purpose" of the Amendment was "to assure the continuation and render possible the effectiveness" of state militias. The Court added: "It must be interpreted and applied with that end in view." Miller made it clear that there must be some connection between arms bearing and the "well regulated Militia" to trigger constitutional protection. The Court in Miller did not adopt Steve Halbrook's view that the preamble language was simply a "declaration of political principle" with no qualifying effect on the right itself.

What is the "well regulated Militia" in the Second Amendment?

In Madison's time, the militia was a form of compulsory military service imposed on virtually all able-bodied males. It was distinct from the regular army because it was composed not of professional soldiers, but of ordinary people from non-military occupations who were subject to a duty of military service.

It is important to understand what the militia was not. It was not an ad hoc group of citizens who had formed themselves into a private army preparing to resist government they regard as tyrannical. Paramilitary organizations calling themselves "citizen militias" and preparing for insurrection against the government are not "well regulated" militias protected by the Second Amendment. Nor was the "militia" simply a term for the citizenry as a whole whose arms bearing was unregulated by government and, indeed, was poised for insurrection against the government.

The nature of the militia was well-described by Noah Webster in his American Dictionary of the English Language (1828): "The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations." (emphasis added). Under this definition, militia service did not exist apart from government; rather, it was required by government. This is plain from the Militia Act of 1792, which required each able-bodied male between 18 and 45 to enroll in the militia and to, within six months, equip himself "with a good musket or firelock, a sufficient bayonet and belt, two spare flints and a quarter pound of powder."

Indeed, in 1803 President Thomas Jefferson directed that a census of firearms be conducted to ensure that the militia had sufficient numbers of firearms. Can you imagine the outcry from the NRA if President Bush directed the federal government to find out who owns what guns and how many they own?

The key point here is that arms-bearing in the well regulated militia was a duty owed to government, not a personal right to be exercised against government. The right to keep and bear arms is fundamentally different from the other guarantees in the Bill of Rights. It was granted to the people not to serve the sovereignty of the individual, but to serve "the security of a free State." Those words appear in the text of the Amendment itself. The arms bearing referred to in the Second Amendment was infused with a governmental interest. It was done at the behest of the government and was inherently regulated by the government.

Why Was the Second Amendment Adopted?

The Bill of Rights was written to respond to the concerns of the Anti-Federalists who opposed the Constitution as written because it gave too much power to the federal government. The specific concern giving rise to the Second Amendment was that the Constitution had given the federal government too much power over the state militia. The Anti-Federalists distrusted "standing armies" composed of professional soldiers. They particularly feared a standing army at the service of the federal government. They saw the state militias as a counterpoint to the power of the federal standing army.

The Constitution, in the "militia clauses" (Section 8 of Article 1), had specified the division of power over the militia between the states and the federal government. It gave Congress the power to call out the Militia to "execute the Laws of the Union, suppress Insurrections and repel Invasions." Note here that the Constitution expressly gives the militia power to "suppress Insurrections…." This is, of course, utterly inconsistent with the idea that the "militia" was the entire populace armed for potential insurrection against government. The militia clauses also gave Congress the power "to provide for organizing, arming, and disciplining, the Militia…." (emphasis added), but reserved to the States "the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Of course, these Clauses flatly contradict the idea that the militia exists apart from government regulation and control.

The Anti-Federalists were concerned that the Constitution gave the federal government exclusive power to arm the militia. It could render the militia useless by failing to arm it. The debate in the Virginia ratification convention is the key to understanding this controversy. In that debate, the Anti-federalists, like George Mason and Patrick Henry, raised this objection.

Indeed, Steve Halbrook has given great emphasis to a statement by Patrick Henry during this debate: "The great object is, that every man be armed….Everyone who is able may have a gun." However, as Pulitzer Prize winning historian Jack Rakove of Stanford University has pointed out, the proponents of the individual rights view have taken this quote out of context. Henry continued: "But have we not learned by experience, that …though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress, how will your militia be armed?" Henry went on to suggest that Congress should have power to arm militia only after "the States shall have refused or neglected to do it." Clearly Henry's words "that every man be armed" is a reference to the need to assure that the militia be armed. Also, implicit in his comment is the notion that the militia is to be armed by the government. If Henry agreed with Steve Halbrook that the militia is simply citizens armed with their own private weapons to pose a potential insurrectionist threat to government, Henry would have thought it absurd that government would play any role in arming the militia.

Madison was an important participant in the Virginia ratification debate. He was a Federalist, defending the Constitution against attack by Mason and Henry. Madison argued that the power to arm the militia under the Constitution would remain "concurrent;" that is, shared by the national government and the states. He further argued national responsibility was essential because experience demonstrated "that while the power of arming and governing of the militia had been solely vested in the State Legislatures, they were neglected and rendered unfit for general service." The point is that the subject matter of the debate was state vs. federal control of arming the militia. Arming the militia was assumed, by Federalists and Anti-Federalists alike, to be an appropriate governmental function. The debate was devoid of any discussion of guaranteeing a right to own guns outside the militia context.

Therefore, Madison's Second Amendment was written to mollify Anti-Federalist critics by affirming that the keeping and bearing of arms in a "well regulated Militia" of the states is a "right of the people," not dependent on the whim of the national government.

Madison's choice of the phrase "to keep and bear Arms" provides further support for the argument that the Amendment concerned military matters. The individual rights theorists suggest that to "bear Arms" means to carry guns. This is an obvious distortion of Madison's meaning. In this context, to "bear Arms" has an unmistakable military connotation. As another Pulitzer Prize winning historian, Garry Wills of Northwestern University, has written: "One does not bear arms against a rabbit."

The military meaning of to "bear Arms" is established by Madison's original draft: "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." (emphasis added). Clearly, the last clause addressed those with religious objections to military service and sought to exempt them from militia duty. Although the Senate ultimately dropped the religious exemption clause, Madison's use of it establishes his understanding that to "bear Arms" was to render military service.

What about the phrase "to keep…arms"? Does this mean to "keep at home" for personal use, as individual rights theorists have argued? First, the phrase is "to keep and bear arms" not "to keep or bear arms." Second, Gary Wills has established that the phrase "to keep arms" also had a militia-related meaning. He cites Article VI of the Articles of Confederation: "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered…." (emphasis added). In this context, to "keep" arms is to keep them in readiness for military use. Note, again, this provision of the Articles further confirms that arming the militia was seen as a governmental function. Thus, the phrase "to keep and bear arms" should be read as a unitary whole, standing as a clear reference to the arming of the well regulated state militias.

Thus, the individual rights theorists have distorted the words chosen by Madison in the Second Amendment. Perhaps even worse is their distortion of his words in the Federalist Papers, the classic defense of the Constitution by Madison, Alexander Hamilton and John Jay.

According to Steve Halbrook and his allies, in Federalist 46, Madison is arguing that the militia, as the whole body of the people, will be able to hold in check a federal army acting to enslave them. Thus, Madison wrote that any attempt by a standing army to impose tyranny "would be opposed by a militia amounting to nearly a half a million of citizens with arms in their hands." Madison went on to extol "the advantage of being armed, which the Americans possess over the people of almost every other nation…."

The individual rights theorists simply rip these statements from their context. Madison is not talking here about the armed citizenry as a potential insurrectionist force against government per se, but about the organized state militias as a check on the federal standing army.

The sentence about a "militia amounting to near half a million of citizens with arms in their hands" also refers to the militia being "united and conducted by governments [meaning state governments] possessing their affections and confidence."

The sentence referring to the "advantage of being armed, which the Americans possess over the people of almost every other nation" continues by noting a further advantage, that is, "the existence of subordinate governments [state governments], to which the people are attached and by which the militia officers are appointed." Thus, the advantage Madison is referring to is the advantage of the people armed as a state-supervised militia. As historian Jack Rakove put it: "Nowhere does Madison treat the idea of an armed citizenry existing independently of any government as the best deterrent against despotism; rather, his argument throughout rests on the supposition that the militia is an instrument of government, subject to its legal regulation…."

What became of the "well regulated Militia" that was the focus of this constitutional controversy? History was not kind to the militia of the late 18th century. What some Anti-Federalists regarded as a vital institution, providing a bulwark against tyranny, gradually became totally impractical. Militia musters became more social occasions than real military exercises. The militia fell into disorganization and disuse, until 1903, when Congress reinvented the militia system by enacting the statute that led to establishment of the National Guard. The Supreme Court has referred to the National Guard as the "modern Militia". Maryland v. United States (1965); Perpich v. Dept. of Defense (1990) ("Notwithstanding the brief periods of federal service, the members of the state Guard unit continue to satisfy the description of a militia."). The militia as the Founders understood it – a form of universal military service imposed on much of the population – has disappeared into the mists of time.

History has therefore deprived the Second Amendment of the significance it may once have had. The individual rights theory is an effort to give the Amendment a new significance, but it does so by giving it a meaning that would have been unrecognizable to Mr. Madison.

Conclusion

Let me conclude by stating that I believe the individual rights view is not only wrong, but potentially quite dangerous. The rhetoric surrounding the individual rights view suggests that the purpose of the Second Amendment is to guarantee an armed citizenry as a check on potential government tyranny. To cite a particularly colorful (and chilling) example, several years ago an NRA field representative was quoted in the New York Times as saying: "The Second Amendment is literally a loaded gun in the hands of the people held to the heads of government." I have called this the "insurrectionist theory" of the Second Amendment.

The insurrectionist theory raises a series of provocative and troubling questions.

• If the purpose of the Amendment is to allow individuals to resist government by force of arms, shouldn't they have the right to own arms comparable to those of the government? Why stop at machine guns? Why not hand grenades? Surface-to-air missiles?

• Why shouldn't courts recognize a constitutional right to form private paramilitary groups? Wouldn't they be a stronger check on potential government tyranny than armed individuals? Why isn't the Michigan militia that met with Timothy McVeigh constitutionally sanctioned? Why aren't the paramilitary activities of the Ku Klux Klan?

• If individuals have a constitutional right to prepare for war against the government should it become a tyranny, shouldn't individuals also have the right to decide for themselves when the time for insurrection has come? If the insurrectionist theory were valid, at what point would the Second Amendment allow the government to stop Timothy McVeigh's preparations to blow up the federal building in Oklahoma City? Given that he sincerely believed the federal government had become a tyranny, why was his conduct not constitutionally protected?

I began by asking: What is at stake in the Second Amendment debate? There may be a great deal at stake. We live in a time when our nation is faced not only with the continuing tragedy of gun violence in our communities, but also with the threat of terrorist enemies whose capacity to take innocent lives seems boundless.

There is great danger in a constitutional doctrine that both ties the hands of our elected officials in curbing access to weapons by dangerous persons and, even worse, offers a constitutional justification for those inclined to impose their beliefs on the rest of us by violent means.

I think Mr. Madison would agree.