Exploding The NRA's Second Amendment Mythology

Introduction

How often have you heard the gun lobby and its allies respond to reasoned arguments for gun control with the claim: "Gun ownership is a constitutional right guaranteed by the Second Amendment!"? The assertion that the Second Amendment to our Constitution guarantees a broad, individual right to "keep and bear arms" is the philosophical foundation of the National Rifle Association's opposition to even the most modest gun control measures.

The NRA's constitutional theory is, however, divorced from legal and historical reality. It is based on calculated disinformation about the text and history of the Second Amendment and systematic distortion of key judicial rulings interpreting the Amendment. This disinformation and distortion is disseminated by way of NRA publications and advertising, as well as by the persistent letter writing of NRA partisans to newspapers and elected of ficials. The result is the creation of a Second Amendment "mythology" which, because it so often goes unchallenged, has managed to penetrate the consciousness of many Americans.

The gun lobby must no longer be allowed to get away with its campaign to mislead the American people about the Second Amendment. Gun control activists must be prepared to expose the NRA's distortions of the Constitution wherever they appear.

In this publication, the legal staff of the Center to Prevent Handgun Violence has compiled the constitutional myths most frequently advanced by the gun lobby and has presented what we believe to be the most persuasive responses. Our intention is not to "script" counter-arguments to the NRA, but rather to give gun control advocates the raw material they need to present cogent responses in their own words. We have tried to make our arguments easily understandable by those with no legal training.

We hope you find this guide helpful in exposing the NRA's constitutional myths. Let us know what you think of it! If you have any comments or suggestions, please write to us at the address on the cover. And, if you write any letters-to-the-editor or articles on the Second Amendment, please send us a copy

NRA MYTH 1:
The Second Amendment guarantees the right to possess guns to the same extent that the First Amendment guarantees freedom of speech, press and assembly.

RESPONSE:
The Second Amendment was not crafted with the same breadth of language as the First Amendment. Instead, it begins by stating clearly its limited purpose: the preservation of "well regulated" state militia forces.

EXPLANATION:
The right guaranteed by the Second Amendment is far more limited and serves an entirely different purpose than the freedoms guaranteed by the First Amendment. This is evident from a comparison of the text of the two Amendments. The Second Amendment contains an expression of purpose which limits the scope of the right guaranteed: "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" (emphasis added). In contrast, the First Amendment contains no such similar statement: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble...."

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court wrote that the "obvious purpose" of the Second Amendment was "to assure the continuation and render possible the effectiveness" of the state militia. The Court added that the Amendment "must be interpreted and applied with that end in view." 307 U.S. at 178. Following the Miller decision, federal and state courts unanimously have held that the Second Amendment guarantees a right to be armed only to persons using the arms in service to an organized state militia. (See Appendix A, listing the court decisions endorsing the "militia interpretation" of the Second Amendment).

It is clear from the language of the First Amendment that when our Founding Fathers sought to create broad, individual rights, they knew how to do it and they did it very well. If the Founders sought to create a similarly broad "right to keep and bear arms", why did they include the phrase about the "well regulated Militia" and the "security of a free state"?

The NRA's distortion of the Second Amendment begins with its habitual omission of the militia clause when the Amendment is quoted. In fact, when the NRA placed the words of the Amendment near the front door of its former Washington, D.C. headquarters, the militia clause was conveniently omitted.

NRA MYTH 2:
Since the "Militia" in the Second Amendment consists of "the whole people," the Amendment guarantees everyone the right to keep and bear arms.

RESPONSE:
The original colonial militia did not include everyone. Rather, it included able-bodied adult males between the ages of 18 and 45. The militia was always an organized state-sponsored military force, not simply an ad hoc collection of armed citizens.

EXPLANATION:
When the NRA is forced to address the militia language in the Amendment, it seriously distorts the nature of the "well regulated Militia." In the NRA's view, the term "militia" is synonymous with the general citizenry. The NRA relies on quotations from colonial leaders like George Mason indicating that the "militia" consists of "the whole people."

Membership in the 18th century militia generally consisted of able-bodied white males between the ages of 18 and 45. Thus, the militia was never composed of the entire population, as the NRA sometimes suggests. Moreover, to say that the "militia" is simply a collection of armed citizens is to misrepresent the original militia concept.

The colonial militia was an organized military force whose members were subject to various legal requirements imposed by the colonies and then by the states. For instance, militiamen were required by law to muster for training several days a year and to supply their own equipment for militia use, including guns and horses. (The personal arms of the militiamen were supplemented by militia arms from government armories.) The term "well regulated" in the Second Amendment reinforces the idea of an organized military force subject to state governmental control. In sum, the militia in 18th century America was a form of compulsory military service imposed upon much of the male population or, to borrow a phase from the late Chief Justice Warren Burger, a "state army." (See Appendix B, Article by Justice Burger.)

The Second Amendment was a product of the colonists' deep distrust of "standing armies" — permanent military forces composed of professional soldiers. The use of troops by George III to compel obedience to the Crown's burdensome taxes and laws reinforced this distrust. These colonists saw the state militia — a part-time military force composed of ordinary citizens — as an effective counterpoint to the power of the federal standing army. Thus, the concern of the Second Amendment was the distribution of military power between the states and the federal government. The purpose of the Second Amendment was to preclude the federal government from enacting laws which would disarm the state militia.

In stark contrast to the organized military force that was the colonial militia are the private citizen "militias" that came to public attention following the 1995 Oklahoma City bombing. These paramilitary groups claim a right to engage in violent resistance to federal authority and assert that the reason for the Second Amendment is to provide the people with the means to resist the government when it becomes a "tyranny." These ad hoc collections of citizens who have appropriated the term "militia" are not the rightful descendants of the organized colonial militia of the 18th century. They are in no sense "well regulated" by the states; nor are they an instrument of state-controlled force. In fact, many states actually have laws that prohibit the formation of private military organizations like these groups (e.g. California, Idaho, Texas). (See Appendix C for more about these private "militias".)

In the twentieth century, we no longer have "state armies" in which a large portion of the population is enrolled for military service and required to maintain private arms to be used in such service. The modern "well regulated Militia" is the National Guard, a state-organized military force made up of ordinary citizens serving as part-time soldiers. The arms used by the National Guard are, of course, not privately-owned, but are supplied by the government. Courts have consistently held that gun control laws affecting the private ownership, sale and use of firearms do not violate the Second Amendment because such laws do not adversely affect the arming of a "well regulated Militia," i.e. the National Guard. (See Appendix D, quoting holdings of key court decisions on the Second Amendment).

NRA MYTH 3:
Current federal statutes indicate that the "Militia" protected by the Second Amendment is not restricted to the National Guard.

RESPONSE:
Federal law distinguishes between the organized militia (the National Guard) and the unorganized militia. The Second Amendment right to bear arms belongs to the organized or, to use its own words, "well regulated" militia.

EXPLANATION:
In making this argument, the NRA relies on Title 10, Section 311 of the United States Code (adopted in 1906), which defines the "militia of the United States" as follows:

...all able bodied males at least 17 years of age and, [with certain exceptions], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and ... female citizens of the United States who are commissioned officers of the National Guard.

Section 311 also distinguishes between the "organized militia, which consists of the National Guard and the Naval Militia" and the "unorganized militia," which consists of all members of the militia not members of the National Guard and the Naval Militia.

Based on these definitions, the NRA argues that every member of the unorganized militia has a constitutional right to possess guns under the Second Amendment. This argument has two problems.

First, if this argument were valid, it would mean that almost all women and all men over the age of 45 do not have a constitutional right to be armed. The NRA, of course, is not willing to take this position, since it would be inconsistent with the organization's view that all law-abiding, adult citizens have the right to be armed.

Second, the distinction between the "organized" and "unorganized" militia in 10 U.S.C. ?311 actually cuts against the NRA's argument. What is the "well regulated Militia" protected by the Second Amendment? Since only members of an "organized" militia are by definition "well regulated" in their militia service, clearly it is that militia that is protected by the Second Amendment.

Only the "organized" modern militia bears any resemblance to the militia in existence in 1791 when the Bill of Rights was adopted. There was no "unorganized" militia in 1791 — as discussed above, the militia of 1791 was a military force subject to a set of regulations to ensure that it was well-trained and well-equipped. Consider the definition of the term "militia" in Noah Webster's Dictionary of 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." N. Webster, II, An American Dictionary of the English Language (1828).

The next time an NRA member claims a right to bear arms as part of the constitutionally-protected "militia," you might ask what company he or she belongs to and who is his or her commanding officer!

NRA MYTH 4:
In U.S. v. Miller, the Supreme Court decided that any gun that could be useful to a militia is constitutionally- protected.

RESPONSE:
Possession of a weapon is not constitutionally-protected simply because it could in some scenario be used by the state militia. Rather, the possession and use of the weapon must be connected with active service in the state militia.

EXPLANATION:
The Supreme Court's opinion in U.S. v. Miller, 307 U.S. 174 (1939), is its most extensive discussion of the Second Amendment. The issue in Miller was whether the Second Amendment barred the prosecution of two individuals for transporting in interstate commerce a sawed-off shotgun that had not been registered as required by the National Firearms Act of 1934. As explained above, the Court in Miller held that the Second Amendment must be interpreted in light of its stated purpose to protect the state militia. In holding that the indictments of the two defendants did not violate the Second Amendment, the Court wrote:

...in the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The Court went on to say that it simply could not conclude, without evidence, "that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

The NRA reads this to mean that any weapon which can be shown to be "part of ordinary military equipment" or which "could contribute to the common defense" is constitutionally-protected and cannot be banned. This position, of course, is absurd. It would mean that the government could not ban civilian ownership of machine guns, hand grenades, bazookas, rocket launchers, or even nuclear weapons!

The Supreme Court in no way endorsed such a ridiculous view in U.S. v. Miller. The Court did rule that, in order to receive constitutional protection, a gun must have "a reasonable relationship to the preservation or efficiency of a well regulated militia." Obviously, a gun cannot have such a relationship unless it is possessed by a member of the "well regulated militia" in connection with his or her militia duties. Thus, the present-day possession of an assault rifle, for example, by someone with no connection to the National Guard (or by a guardsman for his private use) does not contribute to the preservation or efficiency of a "well regulated militia."

In short, although the Miller ruling suggests that, in order to be constitutionally-protected, it is necessary that the weapon could be useful to a militia, the ruling does not hold that such theoretical militia utility is in itself sufficient to confer constitutional protection, regardless of whether the person possessing the weapon is using it in connection with militia service.

NRA MYTH 5:
In U.S. v. Verdugo-Urquidez, the Supreme Court held that the Second Amendment right is an individual right of everyone and is not limited to the "well regulated militia."

RESPONSE:
U.S. v. Verdugo-Urquidez was not a Second Amendment case. It was a Fourth Amendment case. It does not even address the meaning of the Second Amendment right to bear arms.

EXPLANATION:
The NRA completely distorts the Supreme Court's ruling in U.S. v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990). The Verdugo case was not a Second Amendment case at all; it was a Fourth Amendment "search and seizure" case. The issue in the case was whether the Fourth Amendment's guarantee of the "right of the people to be secure...against unreasonable searches and seizures" applies to the search by U.S. drug enforcement agents of property owned by an alien in a foreign country. The Supreme Court held that the Fourth Amendment protects only United States citizens from unreasonable searches and seizures.

In the course of its opinion, the Supreme Court commented that the phrase "the people" as used in various parts of the Bill of Rights, including the Second Amendment, "...refers to a class of persons who are part of a national community...." According to the NRA, this means that the right to bear arms is not restricted to the state militia.

But the issue of whether the right to bear arms is granted to "the people" only in connection with militia service is not even addressed in the Verdugo-Urquidez decision. At most, the decision implies that the Second Amendment right extends only to U.S. citizens; it does not address the precise scope of the right granted. In no way does the Court's ruling contradict the idea that the right of the people to bear arms is exercised only through membership in a "well regulated Militia."

NRA MYTH 6:
In Perpich v. Dept. of Defense, the U.S. Supreme Court held that the National Guard is not the militia.

RESPONSE:
The opposite is true. In Perpich, the High Court held that members of the National Guard, when not in federal service, "continue to satisfy [the] description of a militia."

EXPLANATION:
In Perpich v. Dept. of Defense, 496 U.S. 334 (1990), the U.S. Supreme Court squarely rejected the NRA's argument that the modern-day militia is not confined to the National Guard.

The issue in this case was state versus federal authority over the National Guard. The Court held that, under the "militia clauses" of the Constitution (in Article I, Section 8), Congress may authorize the President to order members of a state National Guard to engage in training exercises outside the U.S. without the consent of the state governor. The NRA, in a brief amicus curiae, asked the Court to find that the National Guard is not the "militia," as that term is used in the Constitution. The Court did not adopt the NRA view, instead finding that, when not in federal service, state Guard members "continue to satisfy [the] description of a militia." The Perpich decision, therefore, supports the idea that the contemporary "well regulated Militia" is the National Guard.

NRA MYTH 7:
The authors of the Constitution clearly stated their intention that the Second Amendment protect the possession of arms, even absent a connection with the militia.

RESPONSE:
Both the text and the history of the Second Amendment support the militia interpretation. The NRA consistently quotes colonial leaders out of context. There is sufficient historical evidence to show that the basic concern of these leaders in the drafting and passage of the Amendment was the preservation and efficiency of state militia forces.

EXPLANATION:
The NRA is fond of quoting various colonial leaders praising guns and gun ownership. There is no question that many of the Founding Fathers liked guns and praised shooting activities. Many of them liked pets too; this hardly means there is a constitutional right to pet ownership. The best indication of their intent in writing the Second Amendment is the text of the Amendment itself, which, as discussed above, clearly links the "right to keep and bear arms" to the "well regulated Militia."

In addition, the language of the Second Amendment, both as originally proposed by James Madison and as ultimately adopted, is military in nature. For example, to "bear arms" is a military term. People generally do not use this term when discussing hunting or sport. And, as originally drafted, the Amendment contained a reference to exempting "religiously scrupulous" persons from being forced to bear arms. Clearly, in including such an exemption, Madison was not contemplating disallowing those who oppose war from using guns for hunting or sport.

Moreover, many of the quotes used by the NRA are taken out of context. For example, the NRA likes to quote James Madison (the author of the Bill of Rights), who referred in The Federalist, #46, to "the advantage of being armed, which the Americans possess over the people of almost every other nation...." Actually, that quotation is contained in a passage arguing that the state militia (then composed of most male citizens) will be an effective counterpoint to the power of the federal standing army. Madison speaks of the militia as a military force "conducted by [state] governments" by which "the militia officers are appointed...." Thus, Madison saw the militia as the military instrument of state government, not simply as a collection of unorganized, privately-armed citizens.

Another favorite NRA quotation is from Patrick Henry: "The great object is, that every man be armed...." Again, the quote is taken out of context. It appears in a passage of the Virginia debates over the ratification of the Constitution in which Henry is objecting to the Constitution as it existed prior to the adoption of the Bill of Rights. He is objecting on the ground that the Constitution grants to the federal government the exclusive right to arm the militia. Following the language quoted above is the following passage:

...necessary as it is to have arms, and though our [Virginia] Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? (emphasis added).

Thus, when Henry spoke of "the...object...that every man be armed...," he was talking about the arming of the militia. Moreover, he took it for granted that the arming of the militia was a responsibility of state government, a view at odds with the NRA's interpretation.

Appendix A

COURT DECISIONS SUPPORTING THE MILITIA INTERPRETATION OF THE SECOND AMENDMENT

U.S. SUPREME COURT

U.S. SUPREME COURT
U.S. v. Miller, 307 U.S. 174 (1939)
Lewis v. United States, 445 U.S. 55 (1980)

U.S. COURTS OF APPEALS
U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 522 U.S. 1007 (1997)
U.S. v. Baer, 235 F.2d 561 (10th Cir. 2000)
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978)
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976)
U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001)
U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001)
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996)
U.S. v. Lewis,, 236 F.3d 948 (8th Cir. 2001)
U.S . Farrell, 69 F.3d 891 (8th Cir. 1995)
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993)
U.S. v. Nelsen, 859 F.2d 1318 (8th Cir. 1988)
Cody v. U.S., 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972)
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971)
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
U.S. v. Napier, 233 F.3d 394 (6th Cir. 2000)
U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976)
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973)
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971)
U.S. v. Johnson, Jr., 441 F.2d 1134 (5th Cir. 1971)
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995)
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974)
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997)
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977)
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir.), cert. denied, 414 U.S. 839 (1973)
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943)
U.S. v. Toner, 728 F.2d 115 (2d Cir. 1984)
U.S. v. Friel, 1 F.3d 1231 (1st Cir. 1993)
Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir. 1984)
U.S. v. Cases, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom.
Velazquez v. U.S., 319 U.S. 770 (1943)

U.S. FEDERAL DISTRICT COURTS
Golt v. City of Signal Hill, 132 F. Supp. 2d 1271 (C.D. Cal. 2001)
Olympic Arms v. Magaw, 91 F. Supp. 2d 1061 (E.D. Mich. 2000)
U.S. v. Willbern, 2000 WL 554134 (D. Kan. Apr. 12, 2000)
U.S. v. Bournes, 105 F. Supp. 2d 736 (E.D. Mich. 2000)
U.S. v. Boyd, 52 F. Supp. 2d 1233 (D. Kan. 1999), aff'd, 211 F.3d 1279 (10th Cir. 2000)
U.S. v. Henson, 55 F. Supp. 2d 528 (S.D. W. Va. 1999)
U.S. v. Visnich, 65 F. Supp. 2d 669 (N.D. Ohio 1999)
U.S. v. Caron, 941 F. Supp. 238 (D. Mass. 1996)
Moscowitz v. Brown, 850 F.Supp. 1185 (S.D.N.Y. 1994)
U.S. v. Kruckel, 1993 WL 765648 (D.N.J. Aug. 13, 1993)
Krisko v. Oswald, 655 F. Supp. 147 (E.D. Pa. 1987)
U.S. v. Kozerski, 518 F.Supp. 1082 (D.N.H. 1981), cert. denied, 496 U.S. 842 (1984)
Vietmanese Fishermen's Association v. KKK, 543 F.Supp. 198 (S.D. Tex. 1982)
Thompson v. Dereta, 549 F.Supp. 297 (D. Utah 1982)
U.S. v. Kraase, 340 F.Supp. 147 (E.D. Wis. 1972)
U.S. v. Gross, 313 F.Supp. 1330. (S.D. Ind. 1970), aff'd on other grounds, 451 F.2d 1355 (7th Cir. 1971)

STATE COURTS
Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993)
State v. Fennell, 382 S.E.2d 231 (N.C. 1989)
U.S. v. Sandidge, 520 A.2d 1057 (D.C.), cert. denied, 108 S.Ct. 193 (1987)
Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984)
Masters v. State, 653 S.W.2d 944 (Tex.App. 1983)
City of East Cleveland v. Scales, 460 N.E.2d 1126 (Ohio App. 1983)
State v. Vlacil, 645 P.2d 677 (Utah 1982)
In Re Atkinson, 291 N.W.2d 396 (Minn. 1980)
State v. Rupp, 282 N.W.2d 125 (Iowa 1979)
Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)
Burton v. Sills, 248 A.2d 521 (N.J. 1968), appeal dismissed, 394 U.S. 812 (1969)
Harris v. State, 432 P.2d 929 (Nev. 1967)

Appendix B

The Meaning, and Distortion, of the Second Amendment

Written by Warren E. Burger

Appearing in The Keene Sentinel November 26, 1991

The Second Amendment very briefly provides that, since a "well regulated militia" is necessary to the security of the state, the people's right to "keep and bear arms" is guaranteed.

Few things have been more vigorously debated – and distorted – in recent times than the meaning of this clause, and very few subjects have been as cluttered and confused by calculated disinformation circulated by special interest groups.

To really understand what was intended, it is necessary to look back and recall that in those days people had a great fear of a standing national army. They knew that the monarchs of Europe had held power at the expense of the people by having standing armies to preserve the status quo.

In addition, before the Constitution the 13 colonies were not really the "united states" we know today, but 13 wholly independent, sovereign nations. For example, before the Constitution was adopted, the State of Virginia was virtually as independent of the other states and of the union established by the Articles of Confederation as France was independent of all the other countries of Europe. Before the adoption of the Constitution, each state could and did have its own army, and each state could also maintain its own navy, as some of the seaboard states did.

The real purpose of the Second Amendment was to ensure that the "state armies" – "the militia" – would be maintained for the defense of the state.

In order to do that it was necessary to grant each citizen the right to maintain arms. Of course, 200 years ago, the musket which was the principal military weapon in use – was a common fixture in most American households, because many Americans depended on hunting game for food. Today the "state armies" that were prevalent in the 18th century have effectively been replaced by the National Guard, and hunting has basically become a recreational activity.

The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. In referring to "a well regulated militia," the Framers clearly intended to secure the right to bear arms essentially for military purposes. In the late 18th century, the "militia" was the aggregate of all able-bodied men, and the word "militia" was defined as "a body of troops; soldiers collectively." Moreover, even where the militia was concerned, it is clear that the Framers contemplated that the use of arms could be "well regulated."

If an 18th-century militia was intended to be "well regulated," surely the Second Amendment does not remotely guarantee every person the constitutional right to have a "Saturday Night Special" or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms so that they do not get into the hands of persons with significant criminal records or mental impairments, or persons who are engaged in criminal activity.

By analogy, although there is not a word or a hint in the Constitution about automobiles or motorcycles, no one would seriously argue that a state cannot regulate the use of motor vehicles by imposing licensing restrictions and speed limits based on such factors as a driver's age, health condition, and driving record, and by recording every purchase or change of ownership.

Of course, some of these observations will be challenged by weapons and ammunition manufacturers and other members of the so-called "gun lobby." That there should be vigorous debate on this subject is a tribute to our freedom of speech and press, but the American people should have a firm understanding of the true origin and purpose of the Second Amendment.

Appendix C

THE NATIONAL LAW JOURNAL
Monday, June 12, 1995

Podium
Militias Misinterpret Constitution

By Dennis Henigan
Special to The National Law Journal

The Oklahoma City bombing has focused public attention on an alarming development: the formation of well-armed private "militias" claiming a right to engage in violent resistance to federal authority. The organizing ideology of these paramilitary groups is a perverse, and potentially dangerous, interpretation of the Second Amendment to the Constitution.

These groups assert that the reason for the presence of the "right to keep and bear arms" in the Second Amendment is to provide the people with the means to resist the government when it becomes a "tyranny." The federal ban on military-style assault weapons, enacted last year as part of the crime bill, is anathema to these self-described patriots. In their view, assault weapons are needed to match the firepower of the Federal government.

The argument that the Second Amendment is about resistance to government tyranny is not confined to the newly formed militias. Indeed, the rhetoric of the militias echoes the message heard for many years from officials of the National Rifle Association.

In a 1971 article in the Howard Law Journal titled "The Second Amendment Ain't About Hunting," Vol. 34, No. 4, an NRA lawyer wrote, "The Second Amendment was directed at maintaining an armed citizenry for mutual defense, and perhaps most significantly, to protect against the tyranny of our own government."

Or, as an NRA field representative told the New York Times on Dec. 24, 1990, "The Second Amendment ... is literally a loaded gun in the hands of the people held to the heads of government."

The NRA's constitutional theory has chilling implications. After all, if the purpose of the Second Amendment is to keep the government in line through the threat of armed resistance, why should there be any limitation on the kinds of arms people may keep and bear?

Following this line of thought, the NRA has argued in court that private possession of military arms, such as assault weapons and machine guns, is constitutionally protected. The NRA theory also implies that citizens should have the right to join together to prepare for resistance to government authority. If the prospect of a solitary armed citizen can give second thoughts to potential tyrants in federal agencies, imagine the effect of an entire private army.

Not surprisingly, the NRA has stated that it has not discouraged "nor would [it] contemplate discouraging" the formation of "citizen militia units." And, under the NRA's theory, if the possession of arms is constitutionally protected to provide the means for resistance to oppression, why is not the use of arms against government agencies (say, by the Oklahoma City bomber) also protected, if such use arises from a sincerely held belief that the government has become a tyranny?

Warped Interpretation

The NRA grossly distorts the history and meaning of the Second Amendment. The 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."

The gun lobby fails to understand that the "well regulated Militia" of the late 18th century was not a private army formed to resist the government; the militia was an instrument of the government.

As former Chief Justice Warren Burger has explained, the militia was a "state army." While it is true that much of the adult male population was enrolled in the militia, these militiamen were subject to rules enforced by the state requiring, for example, periodic "mustering" for military training.

The genesis of the Second Amendment was the belief that the Constitution had given the federal government excessive power over the state militias. The Anti-Federalists who argued for the amendment distrusted the federal "standing army" of professional soldiers. They saw effective state militias as a way to prevent federal monopoly of military power.

Thus, the Second Amendment affirmed 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 central government.

Court Interpretation

As the U.S. Supreme Court wrote in U.S. v. Miller, 307 U.S. 174 (1939), the "obvious purpose" of the amendment was "to assure the continuation and render possible the effectiveness of [the state militia and that] it must be interpreted and applied with that end in view."

Universal military service in state militias long ago disappeared, replaced in the early 1900s by the National Guard system. In Maryland v. U.S., 381 U.S. 41 (1965), the Supreme Court unequivocally stated that "the National Guard is the modern militia." The courts consistently uphold gun control laws because they typically exempt the National Guard, and thus do not interfere with the modern militia. Never in our history has a gun control law been struck down by the federal courts on Second Amendment grounds.

As stated in U.S. v. Nelson, 859 F.2d 1318 (8th Cir. 1988), the courts "have analyzed the Second Amendment purely in terms of protecting state militias, rather than individual rights." Noting the NRA's purposeful distortion of the case law, former Chief Justice Burger has accused the gun lobby of a "fraud on the American public."

Violent Dissent

Perhaps the unspeakable tragedy of Oklahoma City will cause us to reflect on the limits of dissent in our society. Our system vigilantly protects the right to dissent by peaceful means from our government's policies and actions. But no democracy can tolerate violent dissent; the anarchy of violence is the enemy of freedom.

As Dean Roscoe Pound prophetically wrote more than 35 years ago in "The Development of Constitutional Guarantees of Liberty":

In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.

For transforming the Framers' Second Amendment protection of state militias into a charter for violent resistance to government, the NRA should be ashamed.

Appendix D

Quotations from Key Court Decisions

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

"In the absence of any evidence tending to show that possession or use of a [shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument . . . With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Lewis v. United States, 445 U.S. 55 (1980)

"These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties ... the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia.'"

U.S. COURTS OF APPEALS ON THE SECOND AMENDMENT

Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973)

"Appellants theory in the district court which he now repeats is that by the Second Amendment to the United States Constitution he is entitled to bear arms. Appellant is completely wrong about that ... it must be remembered that the right to bear arms is not a right given by the United States Constitution."

Quillici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)

"Construing [the language of the Second Amendment] according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia ... we conclude that the right to keep and bear handguns is not guaranteed by the Second Amendment."

U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992)

"The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia."

STATE SUPREME COURTS ON THE SECOND AMENDMENT

Burton v. Sills, 248 A.2d 521 (N.J. 1968); appeal dismissed, 394 U.S. 812 (1969)

"As the language of the [U.S. Constitution's Second] Amendment itself indicates it was not framed with individual rights in mind. Thus it refers to the collective right "of the people" to keep and bear arms in connection with "a well-regulated militia" ... [most agree this term] must be taken to mean the active, organized militia of each state, which today is characterized as the state National Guard ... Reasonable gun control legislation is clearly within the police power of the State and must be accepted by the individual though it may impose a restraint or burden on him."

Arnold v. Cleveland, 616 Ohio St.3d 163 (1993)

"[Court] decisions signify and history supports the position that the amendment was drafted not with the primary purpose of guaranteeing the rights of individuals to keep and bear arms but, rather, to allow Americans to possess arms to ensure the preservation of a militia."

Appendix E

THE SECOND AMENDMENT: WHAT THE EXPERTS SAY . . .

Supreme Court Justice Lewis F. Powell (served 1972-87)
American Bar Association Speech, Toronto, Canada, August 7, 1988

"With respect to handguns ... it is not easy to understand why the Second Amendment, or the notion of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking numbers of murders in the United States."

Supreme Court Chief Justice Warren E. Burger (served 1969-86)
USA Today, December 16, 1991

"It's the simplest thing: a well-regulated militia. If the militia – which is what we now call the National Guard, essentially — has to be well-regulated, in heaven's name why shouldn't we regulate 14-, 15-, 16-year-old kids having handguns or hoodlums having machine guns? I was raised on a farm, and we had guns around the house all the time. So I'm not against guns, but the National Rifle Association has done one of the most amazing jobs of misrepresenting and misleading the public."

Erwin N. Griswold (Former dean of the Harvard Law School, served as Solicitor General
in the Nixon Administration) – The Washington Post, November 4, 1990

"...to assert that the Constitution is a barrier to reasonable gun laws, in the face of the unanimous judgment of the federal courts to the contrary, exceeds the limits of principled advocacy. It is time for the NRA and its followers in Congress to stop trying to twist the Second Amendment from a reasoned (if antiquated) empowerment for a militia into a bulletproof personal right for anyone to wield deadly weaponry beyond legislative control."

Nicholas Katzenbach, Ramsey Clark, Elliot L. Richardson, Edward H. Levi,
Griffin B. Bell, Benjamin R. Civiletti (Former Attorneys General of the United States)

The Washington Post, October 3, 1992

"For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime."

R. William Ide, III (President American Bar Association)
Remarks to the National Press Club's Newsmaker Breakfast, April 15, 1994

"It is time we overcome the destructive myth perpetuated by gun control opponents about the Second Amendment ... Federal and state courts have reached in this century a consensus interpretation of the Second Amendment that permits the exercise of broad power to limit private access to firearms by all levels of government ... it is time we get on with the business of treating guns with the respect they require and one small step toward that end is making it clear that regulating gun ownership does not violate the Constitution."