Our Second Amendment Rights Have Not Been Eroded Our Understanding Of Them, However, Is

"[The Second Amendment] has been the subject of one of the greatest pieces of frauds, and I repeat the word "fraud" on the American public by special interest groups that I have ever seen in my lifetime."

— Former Chief Justice Warren Burger, appearing on the MacNeil-Lehrer News Hour, December 16, 1991.

In the contentious debate over gun control, opponents of reasonable gun laws regularly argue that even the smallest form of regulation infringes upon Americans' "Second Amendment right" to own guns. This argument is without legal or historical support. In fact, the Second Amendment does not provide an individual with the right to bear arms. As the Supreme Court stated in United States v. Miller, more than 60 years ago, the Second Amendment was designed to "to assure the continuation and render possible the effectiveness" of the state militia and the Amendment "must be interpreted and applied with that end in view." 307 U.S. 174, 178 (1939). The federal courts have consistently echoed the view that the Second Amendment guarantees a right to be armed only to persons using the arms in service to an organized state militia. President Nixon's Solicitor General and former dean of Harvard Law School, Erwin Griswold declared, "that the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional Law."

Despite this well-established proposition, one recent aberrant lower court decision, U.S. v. Emerson, has garnered significant media and public attention. 46 F.Supp. 2d 598 (N.D. Texas, 1999). In that decision, the district court went against all federal court precedent and found that a federal law prohibiting an individual under a domestic restraining order from possessing a firearm violates the individual's Second Amendment right. The individual in that case, a Timothy Joe Emerson, had threatened his estranged wife and child with a firearm and had threatened to kill his estranged wife's friends. He boasted to friends that he owned automatic weapons and needed only to purchase ammunition to prepare for a visit to his wife, in violation of a protective order. The district court decision overturning Timothy Joe Emerson's indictment is currently under appeal to the Fifth Circuit and most likely will be overturned.

Unfortunately, an unrelenting campaign of misinformation by the NRA and others opposed to any regulations on firearms in this country has given much of the American public a warped understanding of the Second Amendment. While most Americans won't pretend to know what the Eighth Amendment provides, many Americans will quickly quote the Second as "the right to bear arms." That truncated reading, which you can also find on the NRA's national headquarters, overlooks the important first half of the Amendment. The amendment in full reads, "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." Conveniently, over half of the amendment is omitted in the NRA's version, which focuses only on the words "the right to keep and bear arms." Thanks to the gun lobby, the Second Amendment may well be the most misunderstood of all the Bill of Rights.

Such a skewed focus ignores the history and the true intent of the Second Amendment. When the Second Amendment was drafted, most states were concerned with maintaining a viable state militia to defend the state against any possible invasion. A "militia" as the framers understood it, was "an organized, state-sponsored group of individuals acting in defense of the whole." Article I, section 8 of the Constitution granted Congress the power "[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States" - a grant of power that necessarily implies governmental organization of the group. In Federalist 29, Alexander Hamilton acknowledged that because a truly "well-regulated militia" would require frequent "military exercises and evolutions" - such a requirement would be a "serious public inconvenience and loss." Hamilton believed a more reasonable approach would be to ensure that militia members were "properly armed and equipped" and to "assemble them once or twice in the course of a year." Federalist 29 (Hamilton) at 228-29. James Madison, similarly, described a militia as a group of citizens "united and conducted by governments possessing their affections and confidence." Federalist 46 (Madison) at 334.

The use of the phrase "bear arms" further illustrates the military connotations of the Second Amendment. To "bear arms" means to possess weapons for military use. As historian Garry Wills has said "one does not bear arms against a rabbit." Indeed, the definition, then and now, of the word "arms" has a primarily military connotation. The term "arms" refers to instruments used in war. Accordingly, the Second Amendment was not meant to protect the rights of hunters and sportsmen, as some interpret it now, but was purely a means of protecting a state's right to maintain an armed force.

In addition to the Framers understanding of the terms "militia" and "bear arms," we must understand why the Second Amendment was passed. It is important for modern day readers to recognize that the Constitution was drafted for a then untested national power. Out of concern for a possible abuse of powers by the federal government, the Framers drafted a Bill of Rights, which were designed to amend the Constitution "in order to prevent misconstruction or abuse of its powers." Resolution of the First Congress, March 4, 1789, in 1 Jonathon Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 338 (1836; rprt.1941). The debates among the states reflected a fear that giving Congress excessive power over the militia would enable Congress not only to regulate the militia, but also to disarm it completely, leaving the states defenseless against the federal government. In this sense, the state militias were thought to function as the "bulwarks of liberties." Statement by Gov. Randolph, in 3 Jonathan Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 400 (1836; rprt.1941). The state militias were properly preserved in the Bill of Rights as an important mechanism to enforce the limits on the federal government.

The Second Amendment was never intended to provide a constitutional right for individuals to own any and all firearms. In fact, as historian Michael Bellesiles has noted, when the Second Amendment was drafted, gun control laws were the norm in most of the colonies. Contrary to the image portrayed by the gun lobby, guns in those days were rare and expensive. As a result, colonial legislatures from New Hampshire to South Carolina imposed communal storage of firearms and permitted them to be removed only in times of crisis or for "muster day" - the day when the militia would perform its drills. The newly formed states implemented strict laws on gun possession - and historian Saul Cornell has recognized that in most states only the adult, white male population was allowed to own firearms, and even then they were subject to further restriction. In the mid-eighteenth century, Maryland forbade ownership of guns by Catholics and seized the weapons of any eligible male who refused to serve in the militia. In Pennsylvania, over half of the eligible gun-owning population, meaning free, white adult males, were deemed to lack the virtue necessary for the possession of firearms. Again, contrary to the public's understanding, the history is clear that our founding fathers lived during a time of strict gun control.

So why all the fuss? Why does the NRA and opponents of gun control bemoan the trampling of "Second Amendment rights" whenever a modest gun control law is proposed - be it background checks at gun shows or bans of cop-killing bullets and military-style assault weapons? Why is it that recent polls show 80 percent of Americans are in favor of stricter gun control laws, but over 60 percent think the Second Amendment must be repealed in order to achieve such goals?

Clearly, as former Chief Justice Warren Burger recognized, the American public has fallen prey to a "fraud." The campaign of misinformation regarding the Second Amendment is only intended to mislead Americans into believing that we are Constitutionally confined to the scourge of gun violence in this country. If Americans and politicians believe that gun ownership is a constitutional right – without qualification – they will be less likely to enact any restrictions on their use. The politicians who voted down a three day waiting period, who voted down mandatory child safety locks, who voted against the prohibition of the importation of high capacity ammunition clips, all hoped the American people would excuse their inaction as "constitutionally based." Often, the gun lobby relies on the Second Amendment because they have no rational argument for their opposition to reasonable measures such as background checks or safe storage laws. The American people should no longer give politicians such an easy out.

The bottom line is that the Second Amendment poses no obstacle to reasonable gun control laws. No obstacle whatsoever. There is nothing unconstitutional about waiting periods - there is no constitutional right to access a gun whenever the urge strikes. There is no constitutional right to own a weapon without knowing proper safety procedures. There is no constitutional protection of a person's ability to purchase weapons without licensing and registration. Indeed, history shows that our forefathers knew who had weapons at all times. The licensing of gun owners is clearly in line with the "well-regulated" idea our forefathers had for their militias.

Meanwhile, despite the founding fathers' reliance on gun regulations, our country has adopted an almost cavalier attitude toward gun control laws. Most notable are the concealed carry laws that allow people to carry weapons most anywhere they please. In Texas in 1995, Gov. George W. Bush signed into law a provision preventing churches and schools from prosecuting those who entered with weapons unless the state-provided signs were posted. As a result, when the Fort Worth, Texas killer entered the church chapel on September 16 of 1999, if he possessed a concealed carry permit, the church would not have been able to prosecute him until he started shooting. Lax laws like these do not serve any "militia-purpose" and therefore are not protected by the Second Amendment. These lenient laws serve only to protect the criminally inclined.

As Americans we should not resign ourselves to the violence on our streets and in our schools. While high profile events like the Columbine massacre rock the nation, gun crimes have decreased nationwide. That means laws like the Brady Bill work to reduce gun violence in our country. But we can do more. As we approach the next millennium, the American people - gun owners and non-gun owners alike - must ensure that their elected leaders do all that is within their power to create laws that will prevent violence and see to it that such laws are enforced. Unfortunately, we have listened for too long to propaganda that any law regulating guns is an infringement of some inalienable right. We needn't listen any longer. Now is the time to listen to not only what the courts and history tell us, but what common sense tells us. We know we want to provide the children of this country with safe schools and safe streets. We know we don't want firearms in the hands of criminals and children. We know we want gun owners to be responsible in the care of their firearms. We know we want this vision of safe and healthy communities realized.