The People Retain the Right To Arm Themselves

by Stephen P. Halbrook
National Law Journal, May 27, 1996

I agree with Morris Dees and David Williams that acts of violence should be prosecuted. “Militia Claims Baseless,” however, overlooks some important points concerning the Bill of Rights. [“Podium,” NLJ, May 13.]

Messrs. Dees and Williams seem to want to make it a crime to wear camouflage clothing and go target shooting. Peaceable group activity and wacky or distasteful political views are protected by the First Amendment. Should we make felons out of those who use the word “militia” to describe themselves?

In 1774, George Mason and George Washington formed the Fairfax independent militia. “A well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen,” wrote Mr. Mason, was necessary to protect “our ancient Laws & Liberty” from the government. These ideas found expression in the Second Amendment, which anticipated that the exercise of “the right of the people to keep and bear arms” would promote a well-regulated militia.

After the Civil War, the Southern state militias enforced the black codes, searching the homes of freedmen, seizing their firearms and committing outrages. Freedman, singly and in groups, resisted the oppression of the Southern militias with arms. As explained by Sens. Charles Sumner and Jacob Howard, the 14th Amendment was designed, in part, to protect the right to possess arms for self-defense against violence committed by state militias as well as by groups such as the Ku Klux Klan.

In the 1960s, blacks who were members of both the NAACP and the National Rifle Association in North Carolina organized and defended themselves with arms against Klan attacks that had been tolerated by the police and the FBI. Would these blacks have been prosecutable under the legislation advocated by Messrs. Dees and Williams?

The authors also ignore the class implications of Presser v. Illinois, 116 U.S. 252 (1886), which held the First and Second amendments inapplicable to the states. Illinois had passed a law against armed associations in order to restrict state militia membership to “National Guardsmen” who would suppress labor unions. Herman Presser was convicted of leading a march of peaceable demonstrators with unloaded rifles as a protest against repeated acts of police violence against workers.

Absolute power corrupts absolutely, yet the authors’ solution to social problems is to entrust even more power to the central government. Yet habeas corpus went down the tubes with the Anti-Terrorism Act. Do Messrs. Dees and Williams really think more power for federal law enforcement agencies will secure our life, liberty and property?