On Monday the New York Times uncharacteristically gave
front page space to a story about liberal scholars who have — albeit
reluctantly — come round to the individual rights view of the
Second Amendment. Among the most prominent is Harvard Law Professor
Laurence Tribe (the man reported to have pushed senators to oppose
the Robert Bork nomination) who now teaches that any law-abiding
American adult who wants a Colt Diamondback to safeguard his family
or go ‘coon hunting has the Second Amendment behind him.
Eight years ago scholars were predicting that Dr. Tribe’s change
of heart would “force judges and others to face the [individual
rights] issue on its merits.” That is precisely what happened in
the March 2007 Parker v. District of Columbia decision, in
which the U.S. Court of Appeals for the District of Columbia
Circuit struck down D.C.’s draconian gun control law. (This week,
the Court denied the District of Columbia’s petition for an en
banc rehearing.)
Why the about-face? According to the Times, “There used
to be an almost complete scholarly and judicial consensus that the
Second Amendment protects only a collective right of the states to
maintain militias,” that is “organized” militias, like the National
Guard. Today, however, more judges are taking the view that the
“preamble” or first 12 words to the Second Amendment — “A well
regulated militia being necessary to the security of a free state”
— is of lesser importance than the body or last 14 words — “the
right of the People to keep and bear arms shall not be infringed”;
in other words, that the body and not the preamble controls the
meaning.
In the Parker case, lawyers for the District of
Columbia argued that the Second Amendment’s preamble was of greater
significance, and that the phrase “well regulated militia” excluded
the now obsolete “unorganized militias.” In order to follow this
argument it helps to know a few facts about militias.
Few Americans are aware that they are members of a militia, that
is, the so-called “unorganized” or reserve militia. However, the
Militia Act of 1903 — which revived the militia system in the wake
of the Spanish-American War — states that every able-bodied male
citizen between the ages of 17 and 45 is by definition a member of
the United States Reserve Militia. If you are an able-bodied male,
you are likely a member of your state militia too. The Virginia
unorganized militia is made up of males 16-55. However, whether an
unorganized militia is the same as a well-regulated militia has
been a matter of intense debate. In Parker the Court
addressed this debate, noting that “Congress provided that a large
portion of the militia would remain unorganized” and that even an
unorganized militia can be well regulated.
Specifically, militias are typically made up of four parts: the
National Guard, the National Guard Reserve, the naval militia, and
the unorganized or reserve militia. For the American colonists, the
militia was the first line of defense against hostile Indian tribes
and the invading British troops.
But why a militia? To say that historically Britons and
Americans have been distrustful of standing armies would be an
understatement. Until the 18th century, English kings often used
standing armies as their personal troops. But as the monarchy’s
power waned following the Glorious Revolution, Parliament
eliminated the authority of the king to keep standing armies in
peacetime. One hundred years before Congress approved the U.S. Bill
of Rights, the English Bill of Rights of 1689 guaranteed British
subjects (including those in the American colonies) the
following:
That the raising or keeping a standing army within the
kingdom in time of peace, unless it be with consent of Parliament,
is against law;
That the subjects which are Protestants may have arms for their
defence suitable to their conditions and as allowed by law.
Indeed one of the most significant grievances of the colonists was
the king’s standing armies, which grew more and more numerous in
the years leading up to the American Revolution and which often
tried — unsuccessfully — to disarm the colonists. After the
American Revolution, the militia remained an important part of the
nation’s defense. In 1808, and with hostilities with Britain far
from over, Thomas Jefferson said:
For a people who are free, and who mean to remain so, a
well-organized and armed militia is their best security. It is,
therefore, incumbent on us at every meeting to revise the condition
of the militia, and to ask ourselves if it is prepared to repel a
powerful enemy at every point of our territories exposed to
invasion.
Not that opinion was universal. As early as 1776, Adam Smith in
The Wealth of Nations commented that standing armies are a
sign of modernizing society as modern warfare requires increased
skill and discipline of regularly trained standing armies.
TODAY’S GUN CONTROL ADVOCATES argue that militias have been
replaced by standing armies, thus the Second Amendment is obsolete,
and must be interpreted as being so. And since the Second Amendment
merely protects states’ rights to form armed militias, there is no
individual right to bear arms. Indeed, in a 1991 interview, former
Chief Justice Warren Berger called the individual rights view “one
of the greatest pieces of fraud — I repeat the word ‘fraud’ — on
the American public by special interest groups that I have ever
seen in my lifetime.”
In the Parker decision, the Court found a right to bear
arms separate from the militia, noting that the right to bear arms
“was premised on the private use of arms for activities such as
hunting and self-defense, the latter being understood as resistance
to either private lawlessness or the depredations of a tyrannical
government (or a threat from abroad).” As for the militia, the
Court noted too that “[T]he right to keep and bear arms had the
important and salutary civic purpose of helping to preserve the
citizen militia.”
It’s a complicated historical issue that doubtless will wind up
in the U.S. Supreme Court and become an important issue in the 2008
election. It is important that Americans understand the historical
aspects surrounding the debate, and not rely solely on the empty
wind of politicians’ soundbites.
