This is Not a Well-Regulated Militia
by Chris Sprigman
The American people increasingly favor gun control.
A recent Time/CNN poll revealed that 92% of the public supported the recently passed Brady Bill, which imposes a 5 day waiting period on handgun purchases. The same poll showed that 60% of the public are in favor of even tougher measures.
But in spite of the public demand for tighter gun restrictions, the National Rifle Association and similar pro-gun organizations continue to oppose even such modest steps as the Brady Bill. Gun lobbyists believe, unhesitatingly and unyieldingly, that the Second Amendment to the U.S. Constitution grants the inalienable right to own guns, no matter the cost in lives.
But does the Second Amendment really guarantee an unrestricted right to possess deadly weaponry? The Supreme Court doesn't think so.
In United States v. Miller (1939), the Court upheld a federal law banning possession of sawed-off shotguns. The right to arms granted by the Second Amendment, the Court stated, is limited to weapons that bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia." Possession of a sawed-off shotgun, which has no appreciable military use, could thus be banned.
The Miller Court based its holding directly on the Second Amendment's text, which provides that:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
As is clear from the text, the amendment's animating purpose is the maintenance of "well regulated'' state militias. The Founders of this country relied upon state volunteer militias, organized and funded by the state governments, to provide a vital bulwark against possible tyranny from the new federal government and its standing army. James Madison, writing in The Federalist Papers, made clear the role of the state militias in maintaining a balance of power between the federal government and the states:
"Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.
The High Court's decision in Miller and the three other times the Court considered the Second Amendment, honors the Founders' commitment to preserve the state militias, while making clear that the second Amendment is not an absolute "right to bear arms."
Rather, the Second Amendment allows for the continuation of state militias and allows them to be effective by preventing federal confiscation of militia weapons, and that's all it does.
Private gun ownership that is not necessary to the maintenance of the militia is not protected by the Second Amendment.
Given the Second Amendment's narrow focus, there is simply no constitutional barrier to gun control measures. Handguns, which cause more death and injury on American streets than any other type of weapon, are mostly unsuitable for military use and are irrelevant to the maintenance of an effective militia. Under Miller, therefore, individual possession of handguns may be banned completely without offending the Second Amendment.
When the Constitution and Bill of Rights were drafted, individual ownership of guns was necessary to the militia's smooth functioning, there was no other way to muster the militia with sufficient speed. The state militia's of the 1800s, however, eventually became today's National Guard. And weapons of the National Guard are stored and distributed by the state and can be distributed quickly in emergencies.
Because individual gun ownership no longer has any relevance to maintaining an effective state militia, private citizens retain no Second Amendment right to bear arms. There is no constitutional barrier to wide-ranging, effective gun control.
That does not mean, however, that the Second Amendment is a dead letter. Should one or more states decide to reconstitute a volunteer militia, the Second Amendment guarantees that the state will be able to distribute arms to their citizen-soldiers in times of need, without federal interference.
This is the right to resist federal government tyranny that the Founders were eager to enshrine in the Bill of Rights. What they did not intend to enshrine is the right for any person to obtain any sort of firearm with little obstacle.
In this country, 40,000 people were killed by guns last year. Each day, 111 more people die by gunfire. The NRA and other gun advocates claim that gun control can't work. Yet, in the same murderous year that the U.S. has just passed through, far fewer gun deaths occurred abroad: 76 people were shot to death in Canada, 82 in Japan, and only 33 in Great Britain. In fact, there were fewer gun-related deaths in all three of those countries combined than in an average mid-sized American city.
And the violence doesn't end there. Gunfire caused serious injuries to over 100,000 Americans last year, and guns were used to commit over 600,000 non lethal rapes, robberies, kidnappings, burglaries and carjackings. All of these figures are dramatically lower in every other industrial nation.
Part of the difference, of course, is that other countries have had the sense to limit easy access to guns. Their constitutions do not prevent rational, effective gun control.
And, thankfully, neither does ours.
- Chris Sprigman is an attorney
working in the Los Angeles area.
This column is republished from Open Forum, A newsletter of the ACLU of Southern California.
| Here are the two photos that were included as part
of this "unbiased" debate page. Sorry for the poor quality of the copies that I received from a state ACLU chapter. ACLU members are the only ones who can change the organization from within.  |
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CounterPoint: Protect the Right
to Bear Arms