Mad Prophet's Sanctuary

Guns & the Constitution: a Double Standard

by Dr. Paul Gallant

"We, the people" means we, the people, all the time!

Except to America's firearm-prohibitionists, that is. According to them, because of its "militia" clause, the Second Amendment does not guarantee an individual right to keep and bear arms, to we, the people, but only a collective right to arm the "militia". The anti-self-defense lobby has used numerous Supreme and lesser-court rulings to support its fallacious contention. Let's see what the record really is on the right of the "individual" vs. the right of the "militia" to keep and bear arms.

FACT: US Code 311 defines "militia" as "all able-bodied males at least 17 years of age and, except as provided in section 13 of title 32, under 45 years of age who are, or have made a declaration of intention to become, citizens of the United States" - i.e. the "common man"!

FACT: In the oft-cited U.S. v Miller, et al [1939], the defendant [Jack Miller] was murdered before the case ever reached the Supreme Court. His co-defendant [Jack Leyton] was in prison. The firearm at issue in Miller was a sawed-off shotgun. No attorney ever argued the defendants' case before the SC.

In essence, the SC ruled that, to be protected by the Second Amendment, a weapon had to have a military application, and specifically one that was useful to a citizen's militia! In the absence of counsel for the defendants to provide evidence to the SC that a sawed-off shotgun had some military application, the SC reversed the lower court's ruling on that basis, and on that basis alone!

The defense would have been an easy one to make, since short-barreled shotguns were used in the first World War! Ironically, according to the Miller court's reasoning, fully automatic AK-47's and Uzis would be useful to the militia, and therefore their ownership by civilians would be "protected" by the Second Amendment!

FACT: The SC can decide which cases it wishes to hear, and which cases it chooses not to. The case of Hickman v City of Los Angeles [1996], which addressed the Second Amendment directly, is a case in point. It simply refused to hear Hickman!

FACT: In 1982, the Senate Subcommittee on the Constitution evaluated the historical record, and unanimously concluded that the Second Amendment recognizes an INDIVIDUAL right to Keep and Bear Arms.

FACT: Writing in the August 1995 issue of the William & Mary Law Review, Reynolds and Kates noted: "The great majority of recent law review commentary sees the Amendment as recognizing a right of individuals...."

One of these was a paper entitled "The Embarrassing Second Amendment", published in the December 1989 Yale Law Journal. Its author, noted Constitutional scholar Sanford Levinson, had set out to prove the Second Amendment did not affirm an individual right, as many others had tried before him. Levinson concluded, instead, that:

"It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings."

FACT: In U.S. v Verdugo-Urquidez [1990], the SC ruled that "the people" as protected in the Second Amendment is the SAME "people" cited in the Fourth, Ninth, and Tenth Amendments.

The Battle of Concord - the first serious engagement of the American Revolution - was triggered by the Redcoats' attempts to disarm the American colonists. It is simply ludicrous to presume that the right to Keep and Bear Arms would have been written into the Constitution NOT to protect the individual's right to do just that.

Those who believe the Second Amendment is about the right to arm "militias", or about the right to hunt ducks, sorely need to go back and re-learn their early American history!

The writer lives in Wesley Hills and is chairman, Committee for Law-Abiding Gun-Owners, Rockland.

Reproduced, in full, from the Rockland Journal-News, Rockland County [NY],Thursday, April 3, 1997, Editorial Page, Letters section, as a "Community View".

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