Rewriting the Second Amendment

By Stephen P. Halbrook
American Rifleman
October 2001

The Second Amendment to the U.S. Constitution protects an individual right to keep and bear arms, stated U.S. Attorney General John Ashcroft in a letter to NRA-ILA Executive Director James Jay Baker dated May 17, 2001. Faced with that reality, the Violence Policy Center (VPC), a small gun-ban lobby, has discharged a superficial attack notable only for its flawed historical interpretation.

Despite the fact that the Attorney General did not comment on the case, the VPC launched an attack on the opinion by Judge Sam Cummings in United States v. Emerson, which is now on appeal in the Fifth Circuit. The court held the Second Amendment to invalidate a federal law prohibiting firearm possession by a person against whom a domestic violence restraining order has been entered without benefit of a hearing and with no factual finding of danger by the court.

Judge Cummings’ opinion is unequaled in its scholarship and analysis of federal jurisprudence concerning the Second Amendment, and VPC offers up federal decisions stating the Second Amendment only protects a “collective” state power to maintain militias. It fails to mention that such statements are typically dicta in cases upholding convictions against felons in possession of firearms. No federal court has ever upheld a general prohibition by law-abiding citizens of firearms.

VPC also cites some district courts that have rejected Emerson, but the fact remains that Emerson is the only decision squarely to face the music-the text of the Second Amendment, the Framers’ intent and the relevant U.S. Supreme Court decisions.

Attorney General Ashcroft states that “the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” VPC claims that this contradicts United States v. Miller. But Miller held only that absent evidence in the trial court that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The test was not whether the person in possession of the arm was a member of a formal militia unit, but whether the arm “at this time” is “ordinary military equipment” or its use “could” potentially assist in the common defense.

Referring to the Constitution’s militia clause, Miller stated that “to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.” Also, members of the militia “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Contrary to VPC, the Second Amendment’s two clauses complement each other; guaranteeing the right of the people to keep and bear arms ensures that a well-regulated militia will be available.

VPC claims its “collective” right theory is supported by certain “eminent scholars.” But not a single one of these “eminent scholarsv has published a book on the Second Amendment, and the Standard Model among scholars is the individual right interpretation.

No scholar or court has argued seriously that the Second Amendment guarantees a “right” to join or bear arms in the National Guard or a state militia—such organizations make their own recruitment and employment decisions. This argument, contrived in the 20th century to emasculate the Second Amendment, has never been taken seriously on the merits. On the other hand, the Standard Model is buttressed by two books and scores of scholarly articles.

The Attorney General states that the individual right “view of the text comports with the all but unanimous understanding of the Founding Fathers.” He cites one reference in the Revolutionary period and three in 1788, the period of the Constitution’s ratification. VPC can only complain that the references were not from 1791, the year the Second Amendment was finally ratified. Yet the Bill of Rights is explained by the rights colonists claimed during the Revolution, by the explanations of the Constitution’s proponents, and by the demands for a bill of rights during its ratification period, particularly in 1788. The Bill of Rights was proposed and debated in Congress in 1789.

Ashcroft quotes George Mason at the Virginia ratification convention in 1788: “I ask, sir, what is the militia? It is the whole people […] To disarm the people is the best and most effectual way to enslave them.” VPC claims Mason is “misquoted” because the two statements were made two days apart, but both quotations are authentic and relate to the same subject. Mason recalled:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

It is clear that Mason was concerned—as is the Second Amendment—both with encouraging a popular militia and guaranteeing the personal right to possess arms. Mason asked:

Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table [the Constitution] gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor.

For Mason, promoting a militia of the whole people would be met in part by guaranteeing the individual right of all people to keep and bear arms. Accordingly, he and others persuaded the Virginia convention to demand a federal bill of rights asserting “the essential and unalienable rights of the people” including: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state.”

Incredibly, VPC asserts that “Mason took the position that a national government should have the power to disarm the people,” and that “he understood the general population will be unarmed.” VPC has completely turned upside down the Framers’ explanations and objectives. VPC cannot cite a single one of the Founding Fathers who asserted its argument, for not one did so.

Ashcroft states: “In early decisions, the United States Supreme Court routinely indicated that the right protected by the Second Amendment applied to individuals.” Four cases—United States v. Cruikshank (1876), Logan v. United States (1892), Miller v. Texas (1893), and Robertson v. Baldwin (1897)—are cited, each one of which presupposed a personal right and none of which stated that the right exists only during active militia service. In that last case, the Court stated:

The law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which we had inherited from our English ancestors.

Does VPC suggest that the power of states to maintain militias is a guarantee which we “inherited from our English ancestors,” given that England did not even have states.” Once again, the Supreme Court’s clear language precludes VPC’s spin.

The Ashcroft letter continues: “As recently as 1986, the United States Congress and President Ronald Reagan explicitly adopted this view in the Firearms Owners’ Protection Act.” The act states, “The Congress finds that the rights of citizens to keep and bear arms under the second amendment to the United States Constitution […] require additional legislation to correct existing firearms statutes and enforcement policies.” This finding was amply supported by The Right to Keep and Bear Arms, a 1982 report of the Senate Judiciary Committee’s Subcommittee on the Constitution. It found:

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

VPC writes as if Congress’ 1986 declaration was an anomaly, but in fact Congress has passed similar declarations in pursuit of its duty to interpret the Constitution when it passes legislation. Following the Civil War, slave codes were reenacted which made it illegal for blacks to exercise basic civil rights, including the possession of firearms. Congress responded by passing the Freedmen’s Bureau Act of 1866, which provided:

the right to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. (Emphasis added.)

This was approved by the same votes of over two-thirds of members of Congress who voted in favor of the 14th Amendment. Sen. Jacob Howard, when introducing the Amendment, explained that its purpose was to protect “personal rights” such as “the right to keep and bear arms” from state infringement.

In 1941, just before Pearl Harbor, Congress authorized the President to requisition property from the private sector on payment of fair compensation. The Property Requisition Act prohibited any construction “(1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), [or] (2) to impair or infringe in any manner the right of any individual to keep and bear arms.”

Committee Rept. No. 1120 [to accompany S. 1579], House Committee on Military Affairs, 77th Cong., 1 st Sess., at 2 (Aug. 4, 1941) explained: “In view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, our committee deem it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms […]. There is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.”

In short, as a co-equal branch of government, the Congress has enacted declarations making clear that the Second Amendment protects a fundamental civil right. Presidents Franklin Roosevelt and Ronald Reagan respectively signed two of these enactments. VPC’s implication that such declarations are unprecedented and of no weight simply ignores Congress’ historic and constitutional duty to interpret the Constitution in the first instance.

Ashcroft writes: “Significantly, the individual rights view is embraced by the preponderance of legal scholarship on the subject, which, I note, includes articles by academics on both ends of the political spectrum.” He cites law review articles by Professors Van Alstyne, Amar, Cottrol & Diamond, Levinson and Kates. VPC tries but cannot refute what is accepted as the Standard Model of the Second Amendment as an individual right. Hardly any of the professors cited by VPC who lent their names to the amicus brief in Emerson have published anything on the Second Amendment.

VPC concludes its attack by grumbling that several of Ashcroft’s quotes were the same as presented by the district court in Emerson. Of course they are—these are significant statements in the history of the Second Amendment. The VPC can’t stand this recognition of historical reality. And it can’t stand an Attorney General who honors his oath to uphold the Constitution, not re-write it.

Stephen P. Halbrook, “Rewriting the Second Amendment,” American Rifleman, October 2001, 48-49, 88-89.