The Right To Be Armed: A Constitutional Illusion

By Dennis Henigan, Director, Legal Action Project
(Originally published in the San Francisco Barrister, December, 1989)

The debate over gun control offers a revealing case study of the misuse of the Constitution to serve a political objective. The gun lobby traditionally has opposed every reasonable legislative proposal designed to limit the accessibility of handguns to those likely to misuse them. This opposition has not been confined to arguments that gun regulations are unwise as a matter of policy. Rather, the political message of the National Rifle Association and its allies is invariably presented in constitutional terms. The message is not only that our elected representatives should not enact stronger gun laws; it includes the additional assertion that they cannot do so without offending the Constitution. The NRA spends literally millions of dollars every year promoting the idea that the Bill of Rights guarantees each individual a right to own a gun in the same sense that it gives each of us freedom of speech, assembly and religion.

The problem is that this reading of the 2nd Amendment is at odds with its language, its history and its interpretation by the courts. The NRA's version of the "right to keep and bear arms" is, in short, nothing more than a constitutional illusion created by mass advertising to further a political objective. However strong this constitutional fantasy is in the minds of the NRA's leadership, and however potent a political tool it has been, it remains a mirage nonetheless, which disappears when approached by real judges faced with deciding the consitutionality of real laws.

The Language of the 2nd Amendment

The 2nd Amendment 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." One way in which the NRA constructs its mythical 2nd Amendment is by changing the language of the real one. The NRA's political ads consistently omit the part about the militia being necessary to a state's security. Indeed, the abridged version actually appears on the edifice of the NRA's Washington, DC headquarters.

The NRA's deliberate omission of the militia language speaks volumes, because it is precisely that language that expresses the purpose, and limit, of the right to keep and bear arms. As the United States Supreme Court wrote in its fullest discussion of the Amendment's meaning, the "obvious purpose" of the Amendment was "to assure the continuation and render possible the effectiveness" of state militia forces. United States v. Miller, 307 U.S. 174, 178 (1939). The Court added: "It must be interpreted and applied with that end in view." Therefore, the necessity of maintaining effective state militias is, by the language itself, the only concern of the Amendment, and the right to keep and bear arms exists only to the extent necessary to meet that concern. There is nothing in the Amendment's language even remotely suggesting a constitutional right to keep and bear arms for hunting, self-protection, target shooting or other individual pursuits unrelated to the operation of state militias.

It bears noting that when the Founders desired to create broad rights unqualified by a stated purpose, they knew how to do it and they did it very well. This is demonstrated by the hallowed language of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." If the Founders sought to create a right to keep and bear arms as broad and fundamental as our First Amendment freedoms, why include all the talk about the "militia" and the "security of a free state"?

The answer is made clear by a review of the Amendment's history.

The History of the 2nd Amendment

The 2nd Amendment is grounded in the deeply-felt conviction of many colonists that "standing armies" – that is, military forces composed of professional soldiers – were tools of oppression and not to be trusted. The colonists' fears were due in part to George III's heavy-handed use of British troops to compel obedience to the burdensome taxes and laws that eventually lead to the Revolution.

In the minds of many colonists, the preferable military structure to a standing army was the militia, which was composed of ordinary citizens instead of professional soldiers. By the time of the Revolution, each colony had adopted a militia law requiring that every man of military age (18-45 or 18-60) be enrolled in service and appear for training several days each year. Generally speaking, these men were expected to appear for duty bearing their own arms, not weapons supplied to them.

When war with England broke out, the colonies held conventions to establish new state governments. State constitutions were written by eleven colonies and eight of these constitutions included a Bill or Declaration of Rights. These Declarations had an important influence on the federal Bill of Rights. The Virginia Bill of Rights, the first adopted, expressed both the colonists' allegiance to the idea of a citizen militia and their fear of standing armies:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.

Reprinted in Sources of Our Liberties 312 (Perry & Cooper ed. 1959) [hereinafter cited as "Sources"].

There is little doubt that this provision of the Virginia Bill of Rights was concerned exclusively with the distribution of military power and the proper role of the military in a free society. The language makes no suggestion of a right to bear arms. The first state to adopt such language was Pennsylvania, which did so as part of its constitutional provision addressing military matters:

That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

Reprinted in Sources, supra at 330.

Other state constitutions proceeded to adopt variations of either the Virginia or Pennsylvania models. The states which included "right to bear arms" language did so in the context of provisions dealing with military matters. It is reasonable to see the 2nd Amendment's language of Virginia with the "right to bear arms" language of Pennsylvania. It is noteworthy that the Pennsylvania language recognizing the people's right to bear arms "for the defense of themselves" did not find its way into the 2nd Amendment, leaving only the security of the state as the proper object of the right being recognized.

Although distrust of a standing army was expressly addressed in most of the state constitutions, it went unmentioned in the document produced by the Constitutional Convention in 1787. The chief purpose of the convention was to remedy the paralyzing weakness of the central government under the Articles of Confederation, including its lack of military power. The new military powers of Congress in Article I, Section 8 of the Constitution included the power "to raise and support Armies," "to provide and maintain a Navy," and "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." The proper extent of federal authority over the militia was heatedly debated and was resolved by a division of authority between the states and the central government which reserved to the states "the appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by Congress."

The new Constitution was submitted to the states for ratification and the battle lines were drawn between the document's proponents – the "Federalists" – and its opponents – the "Anti-Federalists." The focus of the Anti-Federalist attack was the absence of a bill of rights restraining the power of the central government. An important part of this opposition was that the compromise militia clause constituted an inadequate check on the power of the standing army.

The Virginia ratification convention turned out to be pivotal to the eventual outcome of the debate, particularly as to the military clauses of the Constitution. George Mason articulated the Anti-Federalist fear that the Constitution did not sufficiently protect the state militias from destruction:

The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless – by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them. . . .

3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836), at 379 [hereinafter cited as "Elliot's Debates"]. The Anti-Federalist concern, therefore, was that the Congress might allow the state militias to die simply by failing to arm them. The Virginia Convention proposed 20 amendments to the text of the Constitution, including that "each state respectively shall have the power to provide for organizing, arming and disciplining its own militias, wheresoever Congress shall omit or neglect to provide for the same." 3 Elliot's Debates, supra at 663. There is no suggestion in the Virginia debates that the delegates were concerned with an individual right to possess weapons outside the militia context.

In order to avoid a new constitutional convention that might reconsider the entire document, Federalist James Madison drafted a Bill of Rights for presentation at the First Congress. His draft of the provision that became the 2nd Amendment read:

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.

E. Dumbauld, The Bill of Rights and What It Means Today 207 (1957) [hereinafter cited as "Dumbauld"]. Thus, the "right to keep and bear arms" was introduced into the language of the proposed amendment (it had been omitted from the Virginia convention proposal ), but only as part of a provision dealing with military matters.

The language ultimately adopted by the Congress dropped the religious exemption language and rearranged the language to put even greater emphasis on the militia purpose. It is instructive to contrast this language with that proposed by the New Hampshire ratification convention suggesting a far broader right to possess firearms: "Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion." Dumbauld, supra at 182. It is evident that Madison and the Congress had available a formulation of the Amendment that would have created a broad individual right divorced from a military purpose. It is significant that they chose not to adopt it.

Thus, there is no indication from the history of the 2nd Amendment that the Founders were seeking a broad guarantee of the individual right to own firearms for any purpose. On the contrary, the expressed intention of the framers was to guarantee that state militias remained armed and viable, and the "right to keep and bear arms" must be understood as implementing that purpose. The implication of this intention is that the constitutionality of a statute regulating firearms should turn on whether the statute affects firearms in such a way as to adversely affect a state's ability to raise and maintain an armed "well-regulated militia."

Drastic changes in the nature of the militia since colonial times have virtually guaranteed that reasonable regulation of the private ownership of firearms will not offend the Constitution. The colonial concept of a citizen military force using firearms owned by the militiamen disappeared with the 1903 enactment of the Dick Act, ch. 196, 32 Stat. 777, which provided for an organized militia to be known as the National Guard, to be equipped and armed through federal funds and subject to the shared control of the states and the federal government. Although all able-bodied males between 18 and 45 are designated members of the "unorganized militia,," 10 U.S.C. ? 311 (1982), such persons are neither supplied arms by the federal government prior to a call to National Guard duty nor are they required to furnish their own arms. In addition, no state requires its citizens to supply their own firearms for service in a militia.

Therefore, since privately-owned weapons are no longer used to arm citizen militias, as they were in colonial times, the regulation of such arms should face no 2nd Amendment barrier.

Judicial Construction of the 2nd Amendment

Because there were no federal firearms laws until the 1930's, the early Supreme Court 2nd Amendment cases involved state statutes. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), the Court held that the 2nd Amendment operates to limit only the power of the federal government, not of the states. It should be noted that these cases were decided during the era when the accepted principle was that the Bill of Rights did not restrict state governments. Although we have since observed the selective application to the states of certain other amendments through the due process clause of the Fourteenth Amendment, the purpose of the 2nd Amendment suggests that the early decisions are likely to stand. The purpose of the Amendment was not to protect individual citizens against disarmament by the states, but to protect state militias from disarmament by the federal government. With the exception of one 1902 ruling of the Idaho Supreme Court, In re Brickey, 70 P. 609 (1902), the courts have been unanimous in refusing to apply the 2nd Amendment to state regulation of firearms. See e.g. Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); Application of Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); State v. Amos, 343 So. 2d 166, 168 (La. 1977); Commonwealth v. Davis, 343 N.E.2d 847, 850 (Mass. 1976); Cases v. United States, 131 F.2d 916, 921-22 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943).

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court directly addressed the scope of the 2nd Amendment and its impact on federal gun laws. The issue was whether the National Firearms Act of 1934 violated the 2nd Amendment insofar as the statute barred the interstate transportation of an unregistered shotgun having a barrel length of less than 18 inches in length. As noted previously, the Court held that the Amendment must be applied in light of its "obvious purpose" to assure the continuation of state militias. Miller, 307 U.S. at 178. The Court upheld the statute because no showing had been made that private ownership of sawed-off shotguns had any relation to the preservation of a well-regulated militia. Miller, 307 U.S. at 178. The Court's analysis leaves no room for arguing that the "right to keep and bear arms" is a broad individual right to own firearms for lawful purposes apart from maintenance of a state militia. The implication of Miller is that only statutes having an adverse impact on the arming of a state militia would contravene the 2nd Amendment. Miller, however, is not the Supreme Court's last word on the subject. In Lewis v. United States, 445 U.S. 55 (1980), the Court upheld the federal statute barring convicted felons from possessing firearms against equal protection attack. Significantly, the Court determined that the statute needed only a "rational basis" to survive constitutional attack because "[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Lewis, 445 U.S. at 65, n.8 (emphasis added). Miller is cited in support of this proposition. It is difficult to imagine a more direct refutation of the notion that the 2nd Amendment creates an individual right to own firearms comparable in breadth and importance to our First Amendment freedoms.

Following Miller's direction that a firearms statute is unconstitutional only if it adversely affects a state's ability to maintain a militia, the lower federal courts consistently have upheld laws regulating the private ownership of firearms. These cases reject the existence of a broad right to bear arms for purposes other than participation in a state militia. See e.g. Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir. 1973) (". . . the right to keep and bear arms is not a right given by the United States Constitution"); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (Statute barring felons from transporting firearms in interstate commerce is constitutional because there is no evidence that it " ...in any way affects the maintenance of a well regulated militia"); Stevens v. United States, 440 F.2d 1 44, 149 (6th Cir. 1971) ("...there can be no serious claim to any express constitutional right of an individual to possess a firearm"); United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972) (Federal law barring felons from possessing firearms does not conflict with the 2nd Amendment "since there is no showing that prohibiting possession of firearms by felons obstructs the maintenance of a ‘well regulated militia'"). Of the modern federal court decisions, the most far-reaching is the Seventh Circuit's in Morton Grove, in which the Court upheld a local ban on the possession of handguns against a 2nd Amendment challenge, not only because the Amendment does not apply to the states, but also because "...the right to bear arms is inextricably connected to the preservation of a militia ... the right to keep and bear handguns is not guaranteed by the second amendment." Morton Grove, 695 F.2d at 270. That the 2nd Amendment poses no threat to laws affecting the private possession of firearms may well be the most well-settled proposition in constitutional law.