Local voices: Bearing arms: Militias and individuals


Laird Bagnall



The gun control debate hit a fever pitch after the tragedy of Newtown and now, once again this country finds itself with another tragedy involving guns in Charleston, S.C. Nothing has changed. In fact, some jurisdictions have loosened laws regarding gun control. You probably know the points made by each side and most discussions end in gridlock with the only consensus being that something needs to be done in this country. To understand the issue and resolve the problem, open mindedness rather than strict dogma might help. The fact is that other industrialized democracies don't have anywhere near the gun deaths that the U.S. experiences. Those countries have minorities; they have violent video games, movies and TV programs showing violence. They have equal numbers of mentally ill per capita and people in poverty. What they don't have is a Second Amendment, interpreted in recent times to allow almost anyone easy access to firearms which encourages the proliferation of weapons and exacerbates the problem. All other things being equal, this country is awash with guns.


One of the strongest arguments against gun control is the Second Amendment to the Constitution, where the last clause of the amendment reads, "... the right of the people to keep and bear arms shall not be infringed." Many proponents use this clause to prove their "right" to bear arms of any type legally available without provision. Of course this position ignores the leading clause which states, "A well regulated militia being necessary to the security of a free state..." Even though the language is tortured by today's standards, the second part would logically be dependent on the first part, even in colonial times. In a thesis about that era, Carl Bogus, law professor for Roger Williams University School of Law, explains that James Madison wrote the Second Amendment to assure the southern states that Congress would not undermine the slave system by disarming the militia, then the principal instrument of slave control throughout the South. This idea of the primacy of militias in the amendment was bolstered by John Adams, our first Vice President and second President who stated that, "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government...."


For well over one hundred years, courts concurred with our founders' thinking and although the issue was raised apolitically from time to time, the "militia" clause trumped the "individual" clause. In other words, up until the 20th century, the amendment conferred on state militias a right to bear arms--but did not give individuals an actual "right" to own or carry a weapon.



The modern interpretation is a 20th century development and to blindly accept that there has always been an individual right to bear arms ignores history. Rather, like anything else in the Constitution, rulings are periodically made involving the document and interpretations follow the changing mood of the people and the balance of the court, however political.


The interpretation of the second amendment changed as a result Supreme Court decisions and recently of pressure brought about by the NRA. Before 1977, the NRA was an organization devoted to gun safety and training. But during the NRA's annual convention in 1977, a group of committed political conservatives ascended. The new group pushed for a unique interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Even Chief Justice Warren E. Burger, a conservative leaning jurist, ridiculed the individual-rights theory of the amendment, calling it "a fraud." In fact he stated that it "was the greatest fraud ever inflicted on the American public."


In response, using power and money, the NRA began commissioning outside academic studies aimed at proving that "the right of the people to keep and bear arms shall not be infringed" and rejecting the provision that it was dependent on a "well regulated militia." They had some help inside government too. The 1980 election of Ronald Reagan, a gun rights advocate, helped their cause immensely. Additionally, Orrin Hatch, the Utah Republican, chairman of an important subcommittee of the Senate Judiciary Committee, commissioned a report that supposedly discovered "clear and long lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen..." Once, a rejected notion by conservatives on the court, as well as the Republican Party, this new interpretation evolved into conventional wisdom. Finally, in the case of District of Columbia v. Heller in 2008, the Supreme Court embraced the individual rights view of the Second Amendment, but not without restrictions. Although currently the law of the land, it can hardly be relied upon as sacrosanct and unchangeable.


While the Supreme Court ruled for the individual rights view of the amendment, they stopped short of an individual right to have contemporary military weapons like drones, land mines, hand grenades, or missiles. Apparently the Government can interpret the Heller decision to ban military style assault weapons if it so chooses. The full meaning of the court's Heller opinion is still open to compromise, which is what the author of the opinion, Justice Scalia, did in removing the ban on handguns in Washington D.C. Nevertheless, Scalia wrote that the right to bear arms is not unlimited and is subject to reasonable prohibitions and regulations. Subsequently federal court rulings have upheld existing gun prohibitions and regulation.


The individual right to bear arms is, like much in our Constitution, changeable as history has shown. Change can come about as a result of law, politics or legislators driven by interest groups or responding to the demands of the governed. The beauty of our Constitution is that it is malleable to reflect changes in society. A clash of ideas is important not only for discussion, but to find ways to cope with new societal problems. Be that as it may, the "right of the people" under the Constitution is not inviolate. Advocates stridently argue that it is, but history rebukes them. If people demand change, it will happen.


Laird Bagnall lives in Columbus.




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