http://www.post-gazette.com/forum/20001008edkelly5.asp
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Jack Kelly: The meaning of 'militia'
Foes of the Second Amendment misrepresent it
Sunday, October 08, 2000
The Second Amendment says: "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."
Jack Kelly is national affairs writer for the Post-Gazette and The Blade of Toledo, Ohio. His e-mail address is jkelly@post-gazette.com.
Supporters of gun control say the right to bear arms is contingent upon service in the militia, which they say is the National Guard. "The Second Amendment does not refer to an individual right," said Sarah Brady of Handgun Control, Inc. "It refers to a state's right to have a well-regulated militia, which today is the National Guard."
James Madison, who wrote the Second Amendment, and Richard Henry Lee, whose reservations about the Constitution triggered the writing of the Second Amendment, are among those who disagree with Sarah Brady.
Madison and Lee made it plain that by "militia," they meant an armed populace, not military reserve units. Both denounced what they called "select" or "Prussian" militias that would be under federal control.
The Second Amendment sprang from the Founders' belief that a large standing army was a threat to liberty, said David Kopel of the Independence Institute in Golden, Colo.
"The purpose of the militia was, first, to provide a means besides a large standing army of defending the nation from foreign invasion, and, second, to provide a means of defending the nation from its own army," said Kopel, who has written several books on gun control.
Madison made this second goal explicit in Federalist No. 46: "Besides the advantages of being well armed . . . the existence of subordinate governments . . by which the militia officers are appointed, forms a barrier against the enterprises of ambition."
"The Constitution ought to secure a genuine guard against a select militia," wrote Lee, adding that "to preserve liberty, it is essential that the whole body of the people always possess arms."
The Madisonian definition of militia was codified in the Militia Act of 1792. It required every able-bodied male between the ages of 18 and 45 to enroll in the militia and to obtain, within six months, "a musket, bayonet and 24 rounds of ammunition."
The Supreme Court has ruled on the meaning of the Second Amendment three times. Each time it upheld the view that gun ownership is an individual right protected by the Constitution.
In the Dred Scott decision (1859), the court said if free blacks had equality of citizenship, they could keep and carry arms anywhere they went.
In a footnote in Lewis vs. United States (1980), the court said it was constitutionally permissible to deny felons (but not law-abiding citizens) the right to own firearms.
The decision with the most direct bearing on gun control is Miller vs. United States (1939).
Jack Miller and Frank Layton were moonshiners who were being pursued by agents of the Bureau of Alcohol, Tobacco and Firearms. After stomping through the Ozarks for several weeks, the BATF agents busted Miller and Layton, but were unable to find their still. Not wanting their pursuit to have been a complete waste of time, the agents charged Miller with having transported a sawed-off shotgun from Oklahoma to Arkansas. A public defender representing Miller swiftly got the case thrown out on constitutional grounds. Miller and Layton disappeared into the hills. The feds appealed. But because the defendants were long gone, Miller's side of the story was never argued before the Supreme Court.
A unanimous Supreme Court held that a federal statute prohibiting ownership of sawed-off shotguns was constitutional. But it was constitutional only because defendants did not show there was military utility in short-barreled shotguns. (Vietnam veterans would argue there is.)
Brady and other gun control advocates say the Miller decision proves there is no individual right to bear arms. But they either haven't read Justice James McReynolds' opinion, or are misrepresenting it.
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators," McReynolds wrote. "These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."
The thrust of the unanimous opinion in Miller is that the right to bear arms, like the right to free speech, is fundamental, but not unlimited. The First Amendment does not give someone the right to yell "fire!" in a crowded theater. The Second Amendment doesn't give someone the right to own a bazooka or a tank. This is a reasonable position. Gun control advocates should stop misrepresenting it.
http://www.postgazette.com/forum/20001008edkelly5.asp
Jack Kelly: The meaning of 'militia'
Foes of the Second Amendment misrepresent it
Sunday, October 08, 2000
The Second Amendment says: "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."
Jack Kelly is national affairs writer for the Post-Gazette and The Blade of Toledo, Ohio. His e-mail address is jkelly@post-gazette.com.
Supporters of gun control say the right to bear arms is contingent upon service in the militia, which they say is the National Guard. "The Second Amendment does not refer to an individual right," said Sarah Brady of Handgun Control, Inc. "It refers to a state's right to have a well-regulated militia, which today is the National Guard."
James Madison, who wrote the Second Amendment, and Richard Henry Lee, whose reservations about the Constitution triggered the writing of the Second Amendment, are among those who disagree with Sarah Brady.
Madison and Lee made it plain that by "militia," they meant an armed populace, not military reserve units. Both denounced what they called "select" or "Prussian" militias that would be under federal control.
The Second Amendment sprang from the Founders' belief that a large standing army was a threat to liberty, said David Kopel of the Independence Institute in Golden, Colo.
"The purpose of the militia was, first, to provide a means besides a large standing army of defending the nation from foreign invasion, and, second, to provide a means of defending the nation from its own army," said Kopel, who has written several books on gun control.
Madison made this second goal explicit in Federalist No. 46: "Besides the advantages of being well armed . . . the existence of subordinate governments . . by which the militia officers are appointed, forms a barrier against the enterprises of ambition."
"The Constitution ought to secure a genuine guard against a select militia," wrote Lee, adding that "to preserve liberty, it is essential that the whole body of the people always possess arms."
The Madisonian definition of militia was codified in the Militia Act of 1792. It required every able-bodied male between the ages of 18 and 45 to enroll in the militia and to obtain, within six months, "a musket, bayonet and 24 rounds of ammunition."
The Supreme Court has ruled on the meaning of the Second Amendment three times. Each time it upheld the view that gun ownership is an individual right protected by the Constitution.
In the Dred Scott decision (1859), the court said if free blacks had equality of citizenship, they could keep and carry arms anywhere they went.
In a footnote in Lewis vs. United States (1980), the court said it was constitutionally permissible to deny felons (but not law-abiding citizens) the right to own firearms.
The decision with the most direct bearing on gun control is Miller vs. United States (1939).
Jack Miller and Frank Layton were moonshiners who were being pursued by agents of the Bureau of Alcohol, Tobacco and Firearms. After stomping through the Ozarks for several weeks, the BATF agents busted Miller and Layton, but were unable to find their still. Not wanting their pursuit to have been a complete waste of time, the agents charged Miller with having transported a sawed-off shotgun from Oklahoma to Arkansas. A public defender representing Miller swiftly got the case thrown out on constitutional grounds. Miller and Layton disappeared into the hills. The feds appealed. But because the defendants were long gone, Miller's side of the story was never argued before the Supreme Court.
A unanimous Supreme Court held that a federal statute prohibiting ownership of sawed-off shotguns was constitutional. But it was constitutional only because defendants did not show there was military utility in short-barreled shotguns. (Vietnam veterans would argue there is.)
Brady and other gun control advocates say the Miller decision proves there is no individual right to bear arms. But they either haven't read Justice James McReynolds' opinion, or are misrepresenting it.
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators," McReynolds wrote. "These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."
The thrust of the unanimous opinion in Miller is that the right to bear arms, like the right to free speech, is fundamental, but not unlimited. The First Amendment does not give someone the right to yell "fire!" in a crowded theater. The Second Amendment doesn't give someone the right to own a bazooka or a tank. This is a reasonable position. Gun control advocates should stop misrepresenting it.
