Commentary: Repeal the Second Amendment?

By LOU MARANO  |  Oct. 31, 2000
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WASHINGTON, Oct. 31 -- America's argument about guns won't go away. It festers in the body politic and flares up when someone commits an atrocious act with a firearm. Partisans on both sides talk past one other in order to score points, but few minds are changed because, fundamentally, each side has a different answer to the question: What did the Framers mean by "a well regulated militia"?

It begs the question of intent to say, as anti-gun activists do, that because colonial and Revolutionary War militias evolved into today's National Guard, the Second Amendment does not ensure to individuals the right to bear arms. It also begs the question to say that no federal court has ever ruled that the Constitution guarantees Americans the right to own a gun. Judicial rulings do not change history. In fact, no jurist questioned the constitutionality of individual gun ownership until 1905.

But why all the fuss? We are not slaves to the Framers' intent. Times change. Maybe, as hunting guns and weapons of war have become more and more dissimilar, the Second Amendment has become obsolete. Maybe it was outdated when it was ratified. Even in the years following the Revolution, militia laws were seldom enforced except where the Indian threat was high (most militia units performed poorly in the War of 1812), and perhaps America's remote location, not militiamen with flintlocks, preserved the independence of the new republic. Maybe the Second Amendment should be repealed.

Contending that question would be honest debate. But it poisons the current debate to insist -- as do most gun-control advocates and their media supporters -- that the Framers never intended to formalize the longstanding Anglo-American right of individuals to own firearms. The Framers did not draw a sharp line between guns required for compulsory militia duty and those used for hunting or personal defense. No evidence supports the suggestion that, had they lived long enough, the Framers would have been shocked to find a spurious right to individual gun ownership asserted as the amendment's unintended consequence. And because this suggestion shows contempt for history, it invites contempt.

Today when we talk about the National Guard in the context of access to weapons, we are making the distinction between a military organization and civilians. But when the Framers spoke of a militia, it was to make the distinction between a body of armed citizens and the regular Army, which they wanted to keep as small as possible.

Who make up the militia? For the Framers, who had been through a grueling, seven-year war, there was no uncertainty. It was made up of every able-bodied male citizen from late adolescence well into middle age. And how did the state regulate the militia during the war? By compelling enrollment of its members and by requiring citizens to provide themselves with arms and ammunition -- at their own expense -- and by making both citizens and their weapons subject to periodic inspections by agents of the state, with fines or other penalties imposed for shortcomings or failure to comply.

Did the Framers intend to introduce a new, more restrictive definition of "militia" into the Constitution? There is no reason to think so. In fact, as Joyce Lee Malcolm shows in her 1994 book "To Keep and Bear Arms," the Framers' abhorrence of standing armies made the idea of a "select" militia hardly more appealing than that of a professional force.

Malcolm also traces the amendment's evolution. On June 8, 1789, James Madison presented to his colleagues in the First U.S. Congress some amendments to the new Constitution, selecting, in Malcolm's words "those rights for inclusion which were unexceptional and thus more likely to win approval. He deliberately proposed amendments that would not detract from federal powers, among them a right of the citizenry to be armed."

Madison's proposals were referred to a committee consisting of himself and two others, which agreed on the following amendment. "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."

The House approved the amendments and forwarded them to the Senate, which recognized the religious exemption clause as dangerously open-ended and dropped it. But why close this loophole -- which, if left open, would have limited the state's power to compel militia service -- if the militia were to be anything other than what it had long been and what Madison's committee had just declared it to be: a force "composed of the body of the people"?

Malcolm quotes Robert Allen Rutland's observation in his book "The Birth of the Bill of Rights" that the senators "slashed out wordiness" in the amendments "with a free hand." The committee's definition of the militia did not survive this editing. There is every reason to believe the senators deleted it as self-evident. Indeed, Title 10, Section 311 of the U.S. Code defines America's "unorganized militia" as all able-bodied male citizens between the ages of 17 and 44 who are not already members of the National Guard or the Naval Militia. (Section 312 exempts active-duty military personnel.) This was enacted by the 84th Congress in 1956 and remains in force today.

During the past decade, scholars one normally would not associate with individual gun ownership have published fair-minded articles that do not reject its constitutionality out of hand. In 1989 Sanford Levinson, of the University of Texas School of Law, set the stage with "The Embarrassing Second Amendment" in the Yale Law Journal. Levinson quoted an Austin man, who asked: "If the Second Amendment is not worth the paper it is written on, what price the First?"

The article "Your Constitution Is Killing You," appeared in the October, 1999, issue of Harper's Magazine. In it anti-gun author Daniel Lazare wrote: "The truth about the Second Amendment is something that liberals cannot bear to admit. The right wing is right. The amendment does confer an individual right to bear arms."

And in the 1999 edition of his book "American Constitutional Law," Harvard's Laurence Tribe, a noted liberal constitutional scholar, came to the conclusion that the amendment ensures that the federal government may not disarm individual citizens without some unusually strong justification.

Even if the right to individual gun ownership were not protected by the Bill of Rights, it would be guaranteed by the Fourteenth Amendment and the original Civil Rights Act of 1866. Yale law Professor Akhil Reed Amar holds that these reconstruction-era statutes ensured private firearms ownership to freed blacks to protect themselves from Klansmen and other thugs.

Amar wrote that these measures "recast arms-bearing as a core civil right, utterly divorced from the militia and other political rights and responsibilities." Constitutional lawyer Stephen P. Halbrook, of Fairfax, Va., told United Press International that in the late 1860s, federal attorneys argued in favor of the right to individual gun ownership as vehemently as they argue against it today.

Gun-control advocates profess bewilderment at the "irrational" anger of gun owners who fight even "reasonable" firearms laws reflexively. But it is perfectly rational to suspect the motives of those who obfuscate a provision of the Bill of Rights, who insist that an amendment doesn't say what it clearly does say, and then accuse you of irrationality and bad faith.

The subtitle of Malcolm's book is "The Origins of an Anglo-American Right." She shows how what began in 17th-century England as a civic duty became a right in both England and America -- a right that was unique in the world. Parliament legislated away the English right in the Red Scare that followed World War I. But, Malcolm writes, "while it is unconstitutional (in the United States) to legislate a right out of existence, this particular right (has been) threatened with misinterpretation to the point of meaninglessness."

She warns against something that should be obvious to anyone who cares about civil liberties: To ignore all the evidence about the meaning and intent of a provision of the Bill of Rights creates a terrifying precedent.

To rewrite history for political reasons is a lie. To teach children false history is a sin. Those who believe that the Second Amendment has outlived whatever usefulness it ever had should stop nibbling away at the Constitution and work for repeal, through the amendment process, of that part of the Bill of Rights to which they object. That's the more difficult path, but the only honorable one. And if the merits of their case are so obvious, what are they afraid of?NEWLN:

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