Obscuring The Second Amendment

By Mark D. Polston

Chiseled into the wall of the National Rifle Association headquarters in Washington, D.C. is half a story: "the right of the people to keep and bear arms shall not be infringed." The NRA conveniently neglects to tell its members and the public the rest of the story — that the Second Amendment grants this protection to the people only in connection with service in "[a] well-regulated Militia." In "The Forgotten Second Amendment," (Virginia Resolves) (Fall 1992), Linda K. Miller fails to tell this part of her story: that she received $7,040 for her Second Amendment work from "Firearms Civil Rights Legal Defense Fund," which was established by the NRA. Not surprisingly, her article parrots the NRA's political ideology which obscures the meaning of the Second Amendment as determined by the nation's courts.

Miller contends that her review of thirty-two high school government and history textbooks revealed "numerous errors" and "many omissions" concerning the portrayal of the Second Amendment. Miller gives each textbook a score card showing whether it accurately or inaccurately described fourteen historical events that purportedly shed light on the meaning of the Second Amendment. According to Miller, because these fourteen events are ignored or misreported in various texts, the Second Amendment is "forgotten" and "floundering in the political ideologies of the authors." But who is floundering? Miller's failure to disclose the source of her funding makes a mockery of her purported goal — to take an objective look at how a political agenda can infiltrate the teaching process.

But worse than that, the article's conclusion misses the real story of the Second Amendment and school textbooks. In 1991, Sarah Brady's Center to Prevent Handgun Violence reviewed forty history and civics textbooks. The Center's critique discovered that fifty percent of these texts either failed to state that the right to bear arms exists only for the purpose of maintaining a well-regulated militia, or contradicted a nearly unanimous l ine of judicial decisions by suggesting the meaning of the Second Amendment was judicially unsettled.

What Is At Stake?

The gun lobby has long clamored, despite an avalanche of scholarly opinion and judicial decisions to the contrary, that the Second Amendment precludes federal and state gun control legislation. According to the NRA, the Second Amendment confers an inalienable right, enforceable in court, to each person to possess a firearm.

No federal court interpreting the Second Amendment has ever accepted this position — this part of the story the NRA and Linda Miller refuse to tell. The very historical context Linda Miller claims is omitted from high school texts discredits her position and, in fact, supports the legally accepted interpretation of the Second Amendment: it only guarantees the people the power "to assure the continuation and render possible the effectiveness" of the state militia.

We all remember from civics that the Constitution was supported by the federalists and opposed by the anti-federalists. The latter group feared a powerful central government, believing it would lead to the destruction of the states. Out of this tension sprang several debates and compromises, some involving control over the state militia.

Federalists, seeing a flaw in the Articles of Confederation, wanted to empower Congress to raise a standing army. They also sought to nationalize the militia. Anti-federalists believed a standing army threatened individual liberty and saw state control over the militia as the only means to oppose a tyrannical central government.

The constitutional conventioneers struck a compromise: the federal government would possess the power to organize, arm, discipline, and govern the militia, and the states were empowered to appoint officers and train the militia. Whether the federal government had the exclusive power to arm and discipline the militia was left unresolved at the convention. Several anti-federalists emotionally argued during the convention and the ratification debates that Congress' power to arm the militia included the power to disarm it, leave it untrained, and make it useless to the states.

The Virginia ratification convention was attended by James Madison, the author of the Second Amendment, and several prominent anti-federalists like Patrick Henry and George Mason. Mason repeated his concern that the exclusive power to "arm" the militia enabled Congress to neglect the militia — i.e., fail to provide it arms. Accordingly, the anti-federalists demanded an express right to arm the militia.

Contrary to what Linda Miller ascertains, the Virginia delegates never intended that the Constitution confer an inalienable right for an individual to possess firearms; in fact, no historical document shows they even considered the question of the personal possession of firearms. The Virginians expressed their concern over standing armies and federal control of the militia in a Declaration of Rights, a document containing twenty articles and twenty amendments to the Constitution. Article XVII stated in part:

[t]hat the people have a right to keep and bear arms; 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 are dangerous to liberty, and therefore out to be avoided, as far as the circumstances and protection of the Community will admit.

The eleventh proposed amendment included the express right to arm the militia and declared "[t]hat each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same . . ."

James Madison's initial draft of the Second Amendment introduced in the first Congress mimicked the Virginia declaration, connecting the right to be armed with service in the state militia, and stated: "[t]he right of the people to keep and bear arms shall not be infringed; a well armed but 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." This version passed the House of Representatives. The Senate dropped the religion clause and inverted the other two clauses, placing more emphasis on the militia and giving us the present Second Amendment.

Why Is Miller's Article Wrong?

The question is not whether to "moor" the Second Amendment to historical events, but to what events it shall be "moored." Miller begins, harmlessly enough, with the premise that historical events, such as the enactment of the Second Amendment, cannot be read in a vacuum. English and colonial history prior to 1789, as well as contemporaneous events, flesh out the meaning of the Second Amendment. She charges that the textbook authors and the nation's courts neglect this well-accepted premise.

Miller purports to track the discussion of fourteen "historical events, legislation and judicial decisions" in thirty-two textbooks. She determines whether the textbook accurately describes the event, inaccurately describes it, or fails to mention it at all. Obviously Miller believes these events affect the interpretation of the Second Amendment, but she never tells her audience why. Moreover, she rarely explains why an author's description of the event is, in her opinion, wrong. The fact is, only Miller and the NRA consider most of the "historical events" she picks and chooses to be significant.

We can bring Miller's myopia into focus by analyzing a few of her fourteen "forgotten" points. First, the NRA attests, and Miller implies, that English common law supports a personal, inviolable right to be armed. The drafters of the American Bill of Rights intended, therefore, to ensure this common law right. But the English Bill of Rights of 1689 — born from religious warfare between English Protestants and the deposed Catholic king, James II — only states that "the subjects which are Protestants, may have arms for their defense suitable to their conditions and as allowed by law." The last phrase demonstrates the right was obviously not inviolate, and the English have not been deterred from passing restrictive gun control laws.

Second, Miller implies that four state constitutions recognized an inalienable and individual right to keep and bear arms, the origins of the Second Amendment the textbook authors ignore. But two of the states expressly limited this right to defense of country. Virginia's Constitution of 1776 — which did not contain a right to bear arms contrary to Miller's article — championed the militia and warned against 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.

Pennsylvania's Declaration — Miller's model of the inviolable, individual right to bear arms — also expressly warns against standing armies. But instead of balancing a "militia clause" against a standing army, Pennsylvania substituted an "arms clause." Just as in Virginia, that clause also preceded the warning against a standing army and stated "[t]hat the people have a right to bear arms for the defense of themselves and the state." Rather than establishing an inalienable and individual right to bear arms, it assured the supremacy of the militia.

Only one other state reproduced Pennsylvania's language — Vermont. Nonetheless, Miller criticizes textbook authors' descriptions of state governments if they failed to mention that Pennsylvania was the first state to guarantee a right to bear arms. At best, such criticism is overboard; at worst, it is, itself, a politicized distortion of history.

Finally, the Second Amendment applies only against the federal government, not the states. The NRA, therefore, contends that the Fourteenth Amendment, which restrains states from depriving a citizen of life, liberty and property without "due process of law," protects an individual and inviolable right to keep and bear arms against state legislation. Miller tries to lend credence to this view by chiding textbook authors for failing to mention the fourteenth amendment. Miller never mentions that the Supreme Court rejected this argument in United States v. Cruikshank and Presser v. Illinois. Numerous lower federal and state courts have fallen in line, with but one antiquated state court exception. Chiding the textbook authors for failing to give lip service to a position that has been so soundly rejected rates as one of Miller's most blatant politicized "criticisms."

What Has the NRA Forgotten?

The NRA refuses to accept the fact that the legal debate over the interpretation of the Second Amendment crashed to a halt over fifty years ago. Linda Miller joins this misinformation campaign and criticizes textbooks for stating that "the courts have consistently held that the right to bear arms is a limited one." The fact is, since the 1939 Supreme Court ruling in United States v. Miller, the courts have uniformly held that the right to keep and bear arms exists only in connection with service in a "well-regulated militia." The Court of Appeals for the Eighth Circuit, in the 1988 case of United States v. Nelson, summarized this history by stating that the argument for a "fundamental right to keep and bear arms" in the Second Amendment "has not been the law for at least 100 years." Buried beneath this avalanche of cases, Linda Miller cannot find one case to rescue her criticism.

In Miller, defendants were convicted of transporting a short barreled shotgun between states without registering the weapon as the Federal Firearms Act of 1934 requires. Citing the militia clause, the Supreme Court stated that the obvious purpose of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the militia. Defendants could not show a relationship between possessing the weapon and maintaining the militia; the Supreme Court upheld the prosecutions.

The modern "well-regulated militia" is the National Guard. States no longer require citizens to provide firearms for militia service, and no court, state or federal, has struck down a gun control law in the face of a Second Amendment challenge since Miller. For example, the National Firearms Act of 1934 and the Gun Control Act of 1968 have withstood Second Amendment challenge without exception.

Nonetheless, the Center to Prevent Handgun Violence reported in 1991 that fifty percent of the textbooks it studied inaccurately or ambiguously described the Second Amendment. Either the textbooks described only the "individual rights" interpretation or gave credence to it by implying that the courts had not yet settled the issue. But the constitutionality of gun control laws is no longer a serious legal debate; whether to enact such legislation is a policy question for the country's legislators. Miller's critique that textbook authors overstate the consistency of Second Amendment court rulings falls flat, crushed under the overwhelming weight of legal decisions contradicting her.

Miller's article is just another salvo in the NRA's enduring campaign to obscure the unanimously accepted interpretation of the Second Amendment: it protects the peoples' right to bear arms only in a well-regulated militia. It is time for the NRA to stop bamboozling teachers and students into believing gun control laws are unconstitutional.