by Doug Collins and Eric Nelson
The Free Press
"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" - Amendment II, The Constitution of the United States of America.
That's it, folks. One simple, if oddly constructed, sentence is the crux of the gun lobby's argument against gun control. But take a moment to diagram the sentence and place it in historical context, and you will find that the gun lobby's interpretation is devoid of intellectual sincerity and unnecessarily strict. The fact is, they read only half the sentence, "the right of the people to keep and bear Arms, shall not be infringed," and ignore or twist the part about a well-regulated militia.
Time and time again, the U.S. Supreme Court and federal courts have defined the "people" as the collective citizenry of a state, and the "militia" as the state's army, or what is today the National Guard. Thus, the Second Amendment guarantees the state's right to arm itself, not the individual's right to arm himself or herself.
As recently as 1980, in Lewis v. United States, the U.S. Supreme Court has upheld this interpretation: "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.'"
The U.S. 6th Circuit Court of Appeals was even clearer in its 1971, Stevens v. United States decision: "Since the Second Amendment right 'to keep and bear arms' applies only to the right of the State to maintain a militia, and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm."
Yet we still have legislators whose interpretations are colored by the NRA's money. Rep. Jolene Unsoeld in 1990: "This basic right (to own guns) is a civil liberty that is included with other rights that are guaranteed by the Bill of Rights." Then Rep. Sid Morrison in 1991: "Make no mistake - I am a firm believer in our Second Amendment right to bear arms."
True, the Second Amendment is an expression of the Founding Fathers' concerns about how the collective people of a state could defend themselves against the federal government. In 1791, when the first 10 Amendments were added to the Constitution, militias were composed of individuals, who kept arms, and participated in "well regulated militias" intended for local or state defense. Obviously, the practice stopped long ago, except perhaps for a county sheriff's posse. But even then, the posse is armed with legal authority, not necessarily weapons.
But you say, the National Guard does not represent me, nor do I trust it to protect me. In fact, today the state National Guards are tied more to the Pentagon than the states in which they are raised. So how can I, as an individual or community, protect myself against the power of the government?
Frankly, the reality of today's law enforcement/national security state is probably something that would scare the hell out of the Founding Fathers, for it is the antithesis of democracy. This is the question we should be debating, not whether an individual has a constitutional right to own a gun. Perhaps the citizenry should hold the codes to military activation, since our representatives in the House are unwilling to do so. But it stretches the imagination to argue that Congress' intent in 1791 was anything other than to ensure a state's ability to protect itself.
Some states and cities have succeeded in banning certain types of guns, and these restrictions have been upheld by the Supreme Court. However, many state constitutions, including those of Washington and Oregon, do guarantee individuals the right to own firearms. Lawmakers in these states can't ban all guns outright, but, according to the high court, stricter regulation is constitutionally permissible.
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Contents on this page were published in the December/Jan, 1994 edition of the Washington Free Press.
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