News
Constitutional Law
Jun. 17, 2002
Misguided Debate
Forum Column - By Barry S. Willdorf - The Second Amendment to the U.S. Constitution states, "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."
Forum Column
By Barry S. Willdorf
The Second Amendment to the U.S. Constitution states, "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."
Today, we are engaged in a national debate about what this means. The Bush administration is the first administration in 60 years that claims that the Second Amendment stands for an individual's right to keep and bear arms. Yet federal courts have held that the amendment precludes the federal government from infringing on the rights of the people to maintain a "well regulated militia" through their state governments. The debate, as currently framed, however, is off-base.
Our Founders did not enact the Second Amendment because they were concerned about an individual's right to hunt or shoot a burglar. The Framers of our Bill of Rights were not drafting meaningless verbiage when they mentioned the militia in the amendment. Thus, it is more than merely a right to carry a weapon. The debate on the Second Amendment must address the reason "militia" made it into the text.
The Second Amendment is not the only place that the Constitution mentions militias. The Constitution gives Congress the power to organize, arm and discipline the militia but then provides that states have the right to appoint the officers of the militia and the authority to train it. The Second Amendment cannot be interpreted without regard to this clause and the preceding one that allows Congress to call up the states' militias to execute the laws of the union, suppress insurrections and repel invasions. This is the same militia to which the Second Amendment is referring.
The Second Amendment must be interpreted in the context of the power that the Constitution gave Congress regarding militias. The drafters of the Second Amendment felt that a balance needed to be struck between the power of Congress to arm militias and the rights of the people to make sure that the federal government could not disarm a state's militia.
This correction in our constitutional distribution of powers was seen as important. Many of our Founders opposed a standing "national" army because it had the potential to impose tyranny on a free state. Indeed, the original Articles of Confederation expressed this concern by authorizing only a militia system.
The Republicans feared that the president, as commander in chief of the armed forces, had the power to become a dictator. Popular militias, made up of citizen-soldiers, could check that tyranny. To underscore that check, the Constitution gave only Congress the power to call up these militias for national service, and then only for a limited time.
The drafters were trying to restrict the military power of the government. The president would have only a tiny standing army unless Congress called forth the militia. When Congress did, the president would be stuck with the officers that the states determined it should have.
Some gun-control advocates, reasoning that militias are meaningless today, point out that professional soldiers such as Alexander Hamilton disparaged militias. Such arguments are not persuasive. Professional soldiers historically have dismissed the effectiveness of citizen-soldiers. However, the worth of the militiaman was proved during the Revolution, the Civil War, the Spanish-American War and World War I.
The Jeffersonian Republicans knew that a people's army can be effective against invasion by a professional army. As such, the Bill of Rights' Framers saw a popular militia as the last barricade protecting the people's freedoms.
Gun-control advocates also like to point to the removal of the words "made up of the people" after "militia" as proof of a collective right to keep and bear arms. The language of the amendment, however, was the product of compromise. As with many compromises, the language of the Bill of Rights was sometimes achieved by the removal rather than the addition of words. Such an argument does not lead gun-control advocates to the conclusion they desire.
No one at the time disputed the right of the states to organize or regulate their militias. With the enactment of the Second Amendment, arming of a state's militia became a matter of joint federal and states' rights. It follows that gun-control advocates who look exclusively to the federal government for regulation of firearms are looking in the wrong place.
State militias fell victim to Depression-era federalism. However, under the Constitution, the people of every state still reserve their rights to create the rules governing their state's militia.
In California, there are two kinds of militias: the organized one, which is the National Guard; and the unorganized, consisting of all able-bodied male citizens between 18 and 45.
There is no constitutional obstacle to the people of a state voting to implement a program of universal state militia service. Under Section 123 of the California Military and Veteran's Code, the governor can order the enrollment of all people liable for service in the state militia. California, not federal, law prescribes how the state militia can be mustered.
Recent court decisions affirm that, regardless of federal rules to the contrary, any state can ban discrimination in its state militias on the basis of sexual orientation or age. The California National Guard is not required to discharge a gay officer from the state component of the National Guard even though he lost his federal commission in that component of the California National Guard.
Correcting the definition of militia to comport with 21st century prohibitions on discrimination, the militia today could be composed of practically every able-bodied adult citizen. With certain exceptions, every citizen could be compelled to keep and bear arms during militia service. In fact, Section 129 of the California Military and Veteran's Code provides that failure to keep and bear arms as commanded by the governor is deemed desertion.
Every soldier knows that members of the military are subject to gun control. Soldiers must obey stringent rules relating to the keeping and bearing of firearms. Militias, and therefore citizens, should not be an exception.
Conceptually, the Second Amendment could be interpreted to mandate registration of both the members of the militia and their firearms so that the officers of a well-regulated militia can know who has what. Regulations could be enacted to restrict the time, place and manner of weapon use, if it had a military purpose. It is the collective right of the people of each state to make those decisions.
We hear that gun control is a 20th century issue and that the right of individuals to keep and bear arms was unchallenged in earlier times. This pro-gun position is also inaccurate.
In 1891, a West Virginia court held that pistols were not the kind of arms contemplated by the Second Amendment because it found that militias did not use pistols to defend the state. A Texas court held much the same thing with respect to the concept of arms in 1872 but found that pistols did qualify as military arms.
Nevertheless, laws were passed in the 19th century that prohibited bearing concealed firearms. Such conduct was perceived to be the behavior of desperadoes and blackguards, not honorable soldiers. (Times have changed. Today, a citizen openly carrying a firearm would be derided while possession of a concealed weapons permit is prized.)
The Framers of the Bill of Rights went to the trouble of inserting the Second Amendment into our Constitution because they believed that an army of diverse citizen-soldiers could be effective in defense of our other freedoms. They also understood, correctly, that this purpose could not be accomplished by individualism. They used the term "militia" because they knew that protection of freedom through the use of arms must be a collective effort.
While we may keep and bear arms, we also have the right and responsibility, through our democratic state governments to supervise, through appointment of qualified officers, and to regulate through training, how that is done so that we can preserve our freedom.
Today, many of us have become increasingly concerned at erosions of our civil liberties. Many others are so fearful of terrorist attacks that we are willing to forego our liberties for security. Unprecedented measures are being implemented or contemplated that would introduce our completely professional army into the civilian sphere. These are the ingredients for a military dictatorship.
Until we refocus the Second Amendment debate and understand its original intent, we never will have a national consensus. The citizen-soldier was viewed as a bulwark between tyranny and anarchy. We were not given the right to keep and bear arms to ensure personal safety or to put dinner on the table, but to join together as citizens for our common defense.
Now is the moment - in the wake of tragedy and at a time when our attorney general has reopened the debate on the right to bear arms - for the Second Amendment's rebirth as a vital part of our national heritage and protector of our freedoms. We must view it as a call to invigorate inclusive state militias, free of discrimination, and not as a right to personally carry a gun.
The current federal government frames this debate as an issue of individual rights because it knows that this doesn't threaten its military power. The Second Amendment, however, was part of a broad design to check the exercise of federal military power by insuring that the people, rather than a professional army, would exercise this power. It is perhaps the most revolutionary of all the Bill of Rights, and therefore, the one that the advocates of absolute federal power will fight most strongly. It is time to take back this right but also to do so wisely.
Barry S. Willdorf is a San Francisco trial attorney and the author of "Bring the War Home!" a novel about Marines opposed to the Vietnam War.
By Barry S. Willdorf
The Second Amendment to the U.S. Constitution states, "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."
Today, we are engaged in a national debate about what this means. The Bush administration is the first administration in 60 years that claims that the Second Amendment stands for an individual's right to keep and bear arms. Yet federal courts have held that the amendment precludes the federal government from infringing on the rights of the people to maintain a "well regulated militia" through their state governments. The debate, as currently framed, however, is off-base.
Our Founders did not enact the Second Amendment because they were concerned about an individual's right to hunt or shoot a burglar. The Framers of our Bill of Rights were not drafting meaningless verbiage when they mentioned the militia in the amendment. Thus, it is more than merely a right to carry a weapon. The debate on the Second Amendment must address the reason "militia" made it into the text.
The Second Amendment is not the only place that the Constitution mentions militias. The Constitution gives Congress the power to organize, arm and discipline the militia but then provides that states have the right to appoint the officers of the militia and the authority to train it. The Second Amendment cannot be interpreted without regard to this clause and the preceding one that allows Congress to call up the states' militias to execute the laws of the union, suppress insurrections and repel invasions. This is the same militia to which the Second Amendment is referring.
The Second Amendment must be interpreted in the context of the power that the Constitution gave Congress regarding militias. The drafters of the Second Amendment felt that a balance needed to be struck between the power of Congress to arm militias and the rights of the people to make sure that the federal government could not disarm a state's militia.
This correction in our constitutional distribution of powers was seen as important. Many of our Founders opposed a standing "national" army because it had the potential to impose tyranny on a free state. Indeed, the original Articles of Confederation expressed this concern by authorizing only a militia system.
The Republicans feared that the president, as commander in chief of the armed forces, had the power to become a dictator. Popular militias, made up of citizen-soldiers, could check that tyranny. To underscore that check, the Constitution gave only Congress the power to call up these militias for national service, and then only for a limited time.
The drafters were trying to restrict the military power of the government. The president would have only a tiny standing army unless Congress called forth the militia. When Congress did, the president would be stuck with the officers that the states determined it should have.
Some gun-control advocates, reasoning that militias are meaningless today, point out that professional soldiers such as Alexander Hamilton disparaged militias. Such arguments are not persuasive. Professional soldiers historically have dismissed the effectiveness of citizen-soldiers. However, the worth of the militiaman was proved during the Revolution, the Civil War, the Spanish-American War and World War I.
The Jeffersonian Republicans knew that a people's army can be effective against invasion by a professional army. As such, the Bill of Rights' Framers saw a popular militia as the last barricade protecting the people's freedoms.
Gun-control advocates also like to point to the removal of the words "made up of the people" after "militia" as proof of a collective right to keep and bear arms. The language of the amendment, however, was the product of compromise. As with many compromises, the language of the Bill of Rights was sometimes achieved by the removal rather than the addition of words. Such an argument does not lead gun-control advocates to the conclusion they desire.
No one at the time disputed the right of the states to organize or regulate their militias. With the enactment of the Second Amendment, arming of a state's militia became a matter of joint federal and states' rights. It follows that gun-control advocates who look exclusively to the federal government for regulation of firearms are looking in the wrong place.
State militias fell victim to Depression-era federalism. However, under the Constitution, the people of every state still reserve their rights to create the rules governing their state's militia.
In California, there are two kinds of militias: the organized one, which is the National Guard; and the unorganized, consisting of all able-bodied male citizens between 18 and 45.
There is no constitutional obstacle to the people of a state voting to implement a program of universal state militia service. Under Section 123 of the California Military and Veteran's Code, the governor can order the enrollment of all people liable for service in the state militia. California, not federal, law prescribes how the state militia can be mustered.
Recent court decisions affirm that, regardless of federal rules to the contrary, any state can ban discrimination in its state militias on the basis of sexual orientation or age. The California National Guard is not required to discharge a gay officer from the state component of the National Guard even though he lost his federal commission in that component of the California National Guard.
Correcting the definition of militia to comport with 21st century prohibitions on discrimination, the militia today could be composed of practically every able-bodied adult citizen. With certain exceptions, every citizen could be compelled to keep and bear arms during militia service. In fact, Section 129 of the California Military and Veteran's Code provides that failure to keep and bear arms as commanded by the governor is deemed desertion.
Every soldier knows that members of the military are subject to gun control. Soldiers must obey stringent rules relating to the keeping and bearing of firearms. Militias, and therefore citizens, should not be an exception.
Conceptually, the Second Amendment could be interpreted to mandate registration of both the members of the militia and their firearms so that the officers of a well-regulated militia can know who has what. Regulations could be enacted to restrict the time, place and manner of weapon use, if it had a military purpose. It is the collective right of the people of each state to make those decisions.
We hear that gun control is a 20th century issue and that the right of individuals to keep and bear arms was unchallenged in earlier times. This pro-gun position is also inaccurate.
In 1891, a West Virginia court held that pistols were not the kind of arms contemplated by the Second Amendment because it found that militias did not use pistols to defend the state. A Texas court held much the same thing with respect to the concept of arms in 1872 but found that pistols did qualify as military arms.
Nevertheless, laws were passed in the 19th century that prohibited bearing concealed firearms. Such conduct was perceived to be the behavior of desperadoes and blackguards, not honorable soldiers. (Times have changed. Today, a citizen openly carrying a firearm would be derided while possession of a concealed weapons permit is prized.)
The Framers of the Bill of Rights went to the trouble of inserting the Second Amendment into our Constitution because they believed that an army of diverse citizen-soldiers could be effective in defense of our other freedoms. They also understood, correctly, that this purpose could not be accomplished by individualism. They used the term "militia" because they knew that protection of freedom through the use of arms must be a collective effort.
While we may keep and bear arms, we also have the right and responsibility, through our democratic state governments to supervise, through appointment of qualified officers, and to regulate through training, how that is done so that we can preserve our freedom.
Today, many of us have become increasingly concerned at erosions of our civil liberties. Many others are so fearful of terrorist attacks that we are willing to forego our liberties for security. Unprecedented measures are being implemented or contemplated that would introduce our completely professional army into the civilian sphere. These are the ingredients for a military dictatorship.
Until we refocus the Second Amendment debate and understand its original intent, we never will have a national consensus. The citizen-soldier was viewed as a bulwark between tyranny and anarchy. We were not given the right to keep and bear arms to ensure personal safety or to put dinner on the table, but to join together as citizens for our common defense.
Now is the moment - in the wake of tragedy and at a time when our attorney general has reopened the debate on the right to bear arms - for the Second Amendment's rebirth as a vital part of our national heritage and protector of our freedoms. We must view it as a call to invigorate inclusive state militias, free of discrimination, and not as a right to personally carry a gun.
The current federal government frames this debate as an issue of individual rights because it knows that this doesn't threaten its military power. The Second Amendment, however, was part of a broad design to check the exercise of federal military power by insuring that the people, rather than a professional army, would exercise this power. It is perhaps the most revolutionary of all the Bill of Rights, and therefore, the one that the advocates of absolute federal power will fight most strongly. It is time to take back this right but also to do so wisely.
Barry S. Willdorf is a San Francisco trial attorney and the author of "Bring the War Home!" a novel about Marines opposed to the Vietnam War.
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