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.
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