EDITORIAL: A Well-Regulated Militia, Part Four

Gun Rights

Read Part One

The Second Amendment consists of just one curiously-constructed sentence:

A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

What, exactly, does that sentence mean? The commas are located in curious positions, and the meaning is not immediately obvious.

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Does it mean that the right of each state government to maintain a well regulated militia shall not be infringed?

Does it mean that the right of the people to keep and bear arms, shall not be infringed?

Does it mean that the right to keep and bear arms ought to be well-regulated?

A friend wrote, the other day, suggesting that the answer to that question can be found in the U.S. Supreme Court ruling in District of Columbia v. Heller.

In 2008, a divided Supreme Court ruling struck down a handgun law in Washington D.C. on the grounds that it violated an individual’s Second Amendment right to keep and bear firearms for lawful uses, such as self-defense in one’s home.

But the Court declined to say whether this right applied to the states… or if it applied only to the District of Columbia, which is under federal jurisdiction.

The Court weeighed in further in 2010 in McDonald v. Chicago, in another five-four split decision, holding that an individual’s right to keep and bear arms is incorporated and applicable to the states through the 14th Amendment’s Due Process Clause. Writing for the majority, Justice Alito observed: “It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty…”

My amateur research suggests that, back in 1789, the newly-independent U.S. states were fearful that the newly-formed Federal Government would organize a standing army and eventually become oppressive… so the states demanded a constitutional amendment be included in the Bill of Rights, guaranteeing the right to maintain state militias, for protection from a potentially tyrannical Federal Government.

Thus, the Second Amendment, and the need for well regulated militias.

In the Heller and McDonald decisions, the U.S. Supreme Court diverged from 200 years of legal opinion, which had tied the constitutional right to “keep and bear arms” to the existence of state militias.  Prior to Heller, it had been 70 years since the Supreme Court had issued a specific opinion about the right to possess firearms, and that prior ruling — United States v Miller, in 1939 — had clearly implied that the Second Amendment applied only to state militias, in the opinion of the Court.  Jack Miller’s attorneys wanted to argue that their client had a constitutional right to possess a short-barrelled shotgun.  The Justices disagreed:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

In its McDonald ruling in 2010, the Court stated:

It is important to keep in mind that ‘Heller’, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’

Long before the Heller and McDonald cases, however, the NRA and other gun-rights advocates had been promoting the idea that the Second Amendment conferred just such an individual right. It’s a view that was rejected by former Chief Justice Warren Burger, speaking in a 1991 PBS interview, calling it “one of the greatest pieces of fraud — I repeat the word, ‘fraud’ — on the American public by special interest groups, that I have ever seen in my lifetime…”

Justice Burger’s generally conservative approach during his 13-year service on the U.S. Court of Appeals had commended him to President Richard Nixon, who named Burger to succeed Earl Warren as Chief Justice of the Supreme Court.   He was quickly confirmed, and in June 1969, was sworn in as the nation’s Chief Justice.

In his opinion, the Constitution itself does not prohibit the regulation of guns by local, state, or federal legislators.

That’s not the position, however, of the National Rifle Association, the NRA.

The NRA was founded by a group of Union officers after the Civil War who, perturbed by their troops’ poor marksmanship, wanted a way to sponsor shooting training and competitions. The group’s principal focus was hunting and sportsmanship: bagging deer, not blocking laws.

In the late 1950s, it opened a new headquarters, where metal letters on the facade spelled out its purpose: firearms safety education, marksmanship training, shooting for recreation.

Gun-group veterans sometimes refer to the NRA’s annual meeting in 1977 as the “Revolt at Cincinnati”.  The organization’s leadership had decided to move its headquarters to Colorado and get out of politics, but more than a thousand angry rebels showed up at the annual convention. By four in the morning, the dissenters had voted out the organization’s leadership, and right-leaning gun activists took control.

The change was related to an overall shift to the right, within the Republican Party.

The “Revolt at Cincinnati” was followed by a national “tax revolt,” which began in California in 1979, and by the “sagebrush rebellion” against Interior Department land policies. These groups formed a potent new coalition based on a deep distrust of the federal government.  By 1980, the GOP platform proclaimed, “We believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.” That year, Ronald Reagan received the first-ever presidential endorsement by the NRA.

The lettering at NRA headquarters no longer refers to “marksmanship” and “safety.”  Instead, the text reads:

“.. the right of the people to keep and bear arms, shall not be infringed.”

The first half of the Second Amendment — the part about the well regulated militia — is mysteriously missing.

As Chief Justice Burger suggested in his 1991 interview, if the Constitution tells us that a highly trained state militia needs to be “well regulated”… it would be a disaster if the rest of us expected to run around, unregulated, with handguns strapped to our legs…

Has anyone noticed whether Justice Burger might have been correct?

Read Part Five, tomorrow…

Bill Hudson

Bill Hudson

Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.

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