A Right to Keep and Bear Arms? The State of the Debate

Sunday, August 8th, 1999

by William G. Dennis

Since this article was written, armed paramilitary groups that call themselves “militias” have been prominent in the news. The author does not contest the right of these groups to label themselves as they please. But neither this article nor the general body of scholarship on the Second Amendment uses that term to describe armed bands formed outside state auspices.

King County Superior Court Commissioner Jack Richey’s call for gun control “The Right to Bear Arms” (February 1994 Bar News) initiated a debate in this publication that shows no sign of ending a year later and echoes a larger national controversy.

A central question in that debate is whether or not there is an individual right to keep and bear arms under the Second Amendment. It is frequently asserted that there is none. “The Second Amendment doesn’t guarantee the individual the right to bear arms.” (“Cease Fire,” Rolling Stone, March 10, 1994, p. 33). The theory is that the Second Amendment guarantees only the right of the individual states to have their own militias. (A community-as opposed to an individual right). Rolling Stone is not alone in that opinion.

Handgun Control Inc. (HCI) and other gun prohibitionist groups agree. The head of HCI’s legal staff has written, “The Second Amendment poses no threat to laws affecting the private possession of firearms, (and this) may well be the most settled proposition in constitutional law.” (Dennis Henigan, “Exploding the NRA’s Constitutional Myth,” Legal Times, April 22 1991).

in May 1994, a number of law school deans and constitutional law professors signed an ad, sponsored by The Center to Control Handgun Violence, in the New York Times national edition. It echoed

HCI and Rolling Stone, so at first blush, their position appears to be well-supported.

But appearances can be deceiving. Professor Glen Harlan Reynolds of the University of Tennessee Law School responded to the New York Times advertisement with a May 12, 1994, letter to the editor. After explaining how badly the signatories were mistaken, he commented,

The signers of the advertisement can be forgiven their error. Not one of them has ever written a scholarly work on the right to bear arms, making their opinion of the subject only slightly more informed than their opinion on questions of nuclear physics.

Reynold’s remarks reflect that the authors of law review articles on this topic generally see the matter very differently. A review of the professional literature on the Second Amendment finds a remarkable consensus that an individual right was intended.

Federal appeals court decisions before 1984 do offer considerable comfort to those who support the militia theory. But more recent high court, and appeals court, opinions and modem law review articles make one wonder how any serious student of the subject can agree with Dennis Henigan.

The two organizations most involved in the debate about whether there is an individual right to keep and bear arms are HCI and The National Rifle Association (NRA). Both organizations favor some form of gun control. They each have indicated that their views were best summarized in articles that appeared in the University of Dayton Law Review, Fall 1989.

HCI sees the individual as having, at best, a revocable permission to be armed and advocates that private individuals have little or no access to handguns. They advocate placing limits on American’s access to handguns much as temperance organizations once sought to limit access to alcohol. HCI is working toward gun prohibition in incremental steps, so the organization’s ultimate objective was not obvious to me until I asked its legal staff directly.

The NRA advocates free access to firearms for self-defense and other legitimate purposes for all citizens unless the individual’s behavior and/or personal limitations indicate that he or she should not have that access. Its approach is similar to that of Mothers Against Drunk Drivers (MADD) in that the NRA advocates emphasis on stringent punishment for misuse of firearms as MADD does for misuse of alcohol and automobiles..

The NRA sees the Second Amendment as recognizing a right to be armed for individual as well as community, protection and the right of the states to have militias; the organization argues that it was already in existence at the time the constitution was adopted and that the individual’s right to be armed was one of the rights that was intended to be protected by the Fourteenth Amendment. [1]

This article considers whether or not there is an individual right to keep and bear arms by reviewing cases and law review articles recommended by HCI and the NRA. But publications cited in the balance of this article are restricted to the work of independent authors that are not part of the paid staffs of either HCI or the NRA.
The Case Law

Dennis Henigan’s opinion not withstanding, the case law provides support for both the points of view of the NRA and HCI, but U.S. Supreme Court cases since 1990 seem to favor the individual right theory.

Cases bearing on this subject go back to Dead Scott v. Sandford, 60 U.S. 393 (1857), where the Court included carrying arms in a catalog of individual rights and later commented,

Nor can Congress deny to the people the right to keep and bear arms, nor the right to a trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

It can be argued that a case this old has only limited significance but, as will be seen, it surfaces in a most peculiar way, in a law review article relied on by HCI.

The Supreme Court next decided United States v. Cruikshank et al., 92 U.S. 542, (1876), which involved charges arising out of efforts to deprive freed slaves of their civil rights. The Court examined the indictment

… to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the constitution or laws of the United States.

The Court held for the defendants on the matter of attempting to interfere with “bearing arms for a lawful purpose.” The Court declared that the right to bear arms was recognized by the Constitution, (as opposed to being granted by it), and that the national government could not interfere with it. The Court added that that did not apply to anyone else, saying that the Second Amendment “has no other effect than to restrict the powers of the national government.” This seems to give both HCI and the NRA some support.

The first “modern” case is Miller v. U.S., 307 U.S. 174 (1939). Miller and his companion Layton were arrested for possession of an unlicensed sawed-off shotgun. Their defense was that the federal license requirement violated their Second Amendment rights. The district court found for the defendants, and that ended .their participation in the matter. The government appealed the case directly to the Supreme Court. But Miller was no longer involved, and the matter went forward without anyone to argue the individual right side of the case.

Possibly because the case was not completely briefed, the Court proceeded cautiously. It reviewed the early colonial and state militia laws that required individuals to keep arms for militia use, with some emphasis on laws that did so even in situations where there was little or no formal organization of those individuals into units that had a continuing existence between campaigns.

Ad hoc and hastily organized units are not unusual in American history. They were formed as needed from the pool of unorganized militiamen and were disbanded when the need for their services ended. The members were individuals who were legally required to be available with their own arms. Generally the requirement was laid on all or most adult males in the community. Obviously their arms were available to their owners for individual use when the militia was not mobilized.

Those who see Miller as supporting the organized militia-only theory emphasize that the Court quoted a militia definition in use at the time of the adoption of the Constitution as being

A body of citizens enrolled for military discipline. And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

The implication gun prohibitionists draw from this is that the only people who have any right to be armed are members of militia organizations (and, by further implication, only while acting as members of the organization). To prohibitionists, the National Guard and the rest of the reserves are today’s only legitimate embodiment of the “militia” referred to in the Second Amendment.

The Miller court also stated that the obvious purpose of the Second Amendment was to “render possible the effectiveness of’ the militia. “It must be interpreted and applied with that end in view.” It is on the slender foundation of these few sentences from a case where only one side was heard that the “organized militia only” theory rests in Miller.

This is hard to accept because the Court also explained that no formal organization was necessary for The general citizenry to be part of the militia as the founding fathers knew it. Indeed, the sentence immediately preceding that quoted above reads, “These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.” This sentence directly contradicts the view that membership in an organization is necessary to have the right to keep and bear arms.

The Miller court found that there was, at the time of the Revolution, a “general obligation of all adult male inhabitants to possess arms, and with certain exceptions, to cooperate in the work of defense.” An obligation to cooperate is a good deal different from a requirement to actually be a member of an organized military unit. Miller can be read to say that all adult males are members of the militia and the individual weapons of militiamen are protected.

All that is unequivocally clear is that the Court refused to take judicial notice that Miller’s sawed-off shotgun was suitable for militia use and therefore it refused to find that his right to it was protected. This is a very narrow finding. It is not the most clear statement that either side in the debate could desire, but an objective reading gives far more comfort to the individual-right theory than it does to any other.

The Miller court focused on which arms are constitutionally protected and made no finding as to Miller’s status as a member of the militia. But a large part of the opinion was devoted to the question of what this militia was that was referred to in the Second Amendment. Its meaning as used in the Second Amendment is also one of the basic questions subsequently considered by both courts and commentators. [2]

This was the last time that the Supreme Court addressed the topic, but between 1972 and 1982, there were five lower court rulings that held that the Second Amendment was not an impediment to the enforcement of state gun control laws. [3] The most famous was Quilici v. Village of Morton Grove, 695 Find 261 (1982) where the appeals court held, “Under the controlling authority of Miller we conclude that the right to keep handguns is not guaranteed by the second amendment.” An opinion that Miller is controlling on this question is difficult to reconcile with the narrow holding in that case.

There things rested until 1990, when the Supreme Court decided two more cases that dealt at least tangentially with the question of what rights Americans have under the Second Amendment. One, Ceramics v. Department of Defense, 496 U.S. 342 (1990), grew out of Minnesota’s refusal to have its National Guard units participate in training exercises in Central America.

The Court reviewed American military history and the laws that made all able-bodied males at least nominal members of the militia. American military history records that militia drills were often sporadic to nonexistent. Often, even when organized militia units were mobilized for a conflict, they were ineffective mobs. In 1901 Congress passed the Dick Act in an effort to create units that were more ready to take the field. It divided the militia into

. . . the National Guard of the several States, and the remainder… which was then described as the “reserve militia” and which statutes have termed the “unorganized militia. (Perpich at 323)

This affirms Miller that all adults are members of the militia and that membership does not depend on being part of some organized body. Arguing, as some have done, that an unorganized body of militia is militarily irrelevant displays the ignorance of the arguer, but it does not address the question of what rights were granted or recognized by the Constitution.

The other case is United States v. Verdugo-Urquidez, 110 S.Ct. 1056 (1990), which grew out of the kidnapping of a Mexican national from Mexico by federal agents. The Court refused to extend the protections of U.S. law to him, since he was not a member of the community that those laws historically protected.

The Court reviewed the meaning of the term “the people” as used by the framers of the Constitution. It analyzed the words of the Constitution itself and concluded,

While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment and by the First and Second Amendments, and to whom the rights and powers are reserved in the Ninth and Tenth Amendments, refer to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

In noting that an analysis that is confined to the text of the Constitution does not completely exhaust the topic, the Court is, of course, leaving the matter open to more in-depth evaluation. The section of this article about that in-depth evaluation, which is found in the legal commentary on the Second Amendment, will make it apparent that this caveat should give little comfort to the militia theorists.

Even with the caveat that the Court’s analysis is confined to the text of the Constitution itself, the Court seems to be accepting an interpretation of the Second Amendment that leaves little room for an exclusively states’ rights theory. The Court found that the people (not the states) have some sort of right under the Second Amendment. If not a right to keep and bear arms what right could it be?

Two years later, the high court decided Planned Parenthood vs. Casey, 112S.Ct. 2791 (1992) commenting,

It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments of the constitution.

Another case that warrants discussion is a 9th Circuit decision arising from California’s ban on “assault rifles.” Fresno Rifle and Pistol Club v. the United States, 746 F.Supp. 1413 (1992). The plaintiffs argued that the Second Amendment provided an important individual right that the court was obliged to protect against infringement by the state of California through the Fourteenth Amendment. But the Ninth Circuit balked. It found that the Supreme Court has held that the Second Amendment constrains the actions of Congress, but that it has not held that it constrains the -states. As a result, the court considered itself to be foreclosed from considering whether the states were bound to respect the Second Amendment. In limiting its holding, the court was refusing to join the 7th Circuit Morton Grove opinion that there is no individual right, possibly because of the language from Planned Parenthood and Verdugo quoted above.

So we have a line of cases that sharply reduces the importance of the word “militia” in the Second Amendment. Granted, the material is in the portions of the opinions where the courts are explaining their reasoning rather than in the holdings, but it appears that the courts are agreeing with James Madison that “the militia (as used in the Second Amendment) is the People.” We are all members of the militia and have the right to be armed that existed at the time of the adoption of the Constitution. The remainder of the Amendment spells out that “the right of the people to keep and bear arms shall not be infringed.” That is an unambiguous statement.

If the Supreme Court had accepted the theory that the Second Amendment granted a right to the states only in Miller or the Ninth Circuit had accepted it, in Fresno Rifle, the courts could have come to a conclusion in those cases much more simply. All that would have been necessary would have been for the Court to find that neither Miller nor the Rifle Club members (nor, for that matter, the individuals the U.S. sought to protect in Cruikshank) had standing to make a claim for protection under the Second Amendment because they were individuals who were seeking protection under a provision of the Constitution that only protected the states’ right to have militias. It appears that there has never been a credible attempt by the state-militia-only theorists to explain why the two courts failed to opt for this judicial economy. There has also never been an explanation of why, if the Second Amendment simply means the states can have militias, it doesn’t just say so. The reasons the Fresno Rifle court appears to have taken the position it did were at least partly because of the line of cases cited above and because of the impressive body of scholarship, discussed below, that supports the individual-right theory.

Before getting to that scholarship it is necessary to briefly discuss Lewis v. United States, 455 U.S. 55 (1980); on which HCI also relies. Lewis and Miller are the only Supreme Court cases listed in the material HCI sends out to attorneys who inquire about the basis for HCI’s contention that there is no individual right.

It is difficult to see why they include it. Lewis had been convicted of a felony, and his conviction had come under collateral attack because he had waived his right to an attorney. Subsequently, he had been arrested as a convicted felon unlawfully in possession of a firearm. His defense was that his conviction on the second charge was unlawful because his initial conviction was not valid. The Court found that the invalidity of the initial conviction was not a bar to its use in the second case.

Congress sought to rule broadly-to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.

(In doing so, Congress did exactly as the NRA advocates).

There is no disagreement that Congress has the power to bar possession of firearms by those whose behavior has shown that it is inappropriate for them to have them, just as illegal or dangerous behavior can cause an individual to lose privacy rights and other constitutionally guaranteed attributes of citizenship. But HCI seems, at times, to be asserting that Lewis stands for the Proposition that there is no scrutiny test to be met before Congress can strip an individual of his right (privilege) to keep and bear arms. If so, there can’t be an individual right under the Second Amendment. It is difficult to accept that line of argument. It is easier to see Lewis as standing for the proposition that just as being convicted of a felony can cause an individual to lose his right to liberty so can it cause him to lose his right to be armed.

HCI has also noted that the Court favored a rational-relationship test in this instance. It is not clear whether the court favored such a test in all instances, Of only when convicted felons and similar categories of individuals were under discussion. Given Casey and Verdugo, it is likely that it is only in the latter situations. Professor William Van Alstyne of Duke University has summarized the case law by observing,

The Second Amendment has generated almost no useful body of law. Indeed it is substantially accurate to say that the useful case law even in 1994 is mostly just missing in action.”

“The Second Amendment and the Personal Right to Arms,” 43 Duke L. J. 1236 (1994) at 1239.

He continues,

… the essential claim (certainly not every claim — but the essential claim) advanced by the NRA with respect to the Second Amendment is extremely strong.

(“The Second Amendment” at 1255.)

The intent of this section is not necessarily y to convince the reader that the case law shows that the individual right theory of the Second Amendment must necessarily be accepted. It is simply to show that HCI’s claim that the law is well-settled, and that it strongly supports their position, and this is not accurate. The question of how to interpret what case law there is the thing that makes what the commentators have written very important.
The Commentators

During the preparation of this article, I contacted the NRA and HCI for information. Both organizations gave assurances that their positions were strongly supported by contemporary independent legal scholarship, and they sent bibliographies of supporting material.

The NRA bibliography was limited to law review articles and full-length books. It contained 53 articles published since 1960. Thirty-one were written in the last ten years, and only a small proportion (four) were written by NRA staff. There were four full-length books included, the latest published by Harvard University Press.

In contrast, the HCI bibliography contained material from law reviews and other legal publications down to pieces that were little more than letters to the editor: 13 pieces all-told, dating back to 1915.

Apparently, HCI is increasingly dependent on paid staffers to argue its position. In the last ten years, HCI identifies only six articles from law reviews and other legal publications that HCI claims support its position. Four of the six were written or co-authored by the head of the

HCI legal staff. One of the two independently written articles should not have been included because it does not argue that there is no individual right.

In this article, I have concentrated on articles written in the last ten years and eliminated any that are written by paid staff of HCI or the NRA or which do not argue the question of whether there is an individual right. I was left with 27 articles and four books that argue that there is an individual right and one that argues that there is not.

The reasons for concentrating on the articles by independent scholars should be obvious. I have concentrated on the last ten years because of the importance of Don Kates’ article that appeared in the Michigan Law Review in 1983. Concentrating on independent scholars does mean that the points made in this section will heavily favor the individual -right theory. But the strong consensus among the scholars should be reflected here.

The two best-known and most prolific authors on the Second Amendment are Stephen Halbrook and Don Kates. Halbrook is the author of “What the Framers Intended: A Linguistic Analysis of the Right to Bear Arms,” 49 Law and Contemp. Probs. 151 (1986) and numerous other law review articles. His magnum opus is the full-length book, That Every Man Be Armed The Evolution of a Constitutional Right, (Univ. of N. Mex. Press 1984) Although he is not an employee of the NRA, he is the one who is closest to the NRA’s views on most issues. For example, he would probably argue for strict scrutiny of almost any gun control law. [4]

The differences between the two men are real as well as rhetorical (Halbrook once accused Kates of “Orwellian newspeak.”) Kates would probably be sympathetic to proposals to ban possession of high-powered rifles in areas like multiple dwellings, where their discharge might cause bullets to penetrate interior walls and enter adjacent living spaces. But Halbrook has indicated that he would probably oppose such a ban because such rifles have a legitimate militia function. [5]

The most important similarity between these two scholars is that both draw on an awesome amount of supporting historical material bearing on what the framers probably had in mind when the Bill of Rights was written and what the prevailing attitudes and expectations were at the time.

Kates, who makes something of a point of the fact that he is not an NRA member, probably has the most influence. He is a liberal who spent a long hot summer registering voters in Mississippi, and he has a national reputation as a civil rights lawyer.

His article, “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Mich. L. Rev. 204 (1983), is still one of the leading articles on the Second Amendment. Its 69 pages of carefully documented material explored the matter in overwhelming detail and with exceptional clarity. It is sufficiently influential that this section of this article is confined to it and to work done by other independent scholars since its publication.

One of Kates’ more telling points is,

The Second Amendment’s literal language creates another more embarrassing problem for the exclusively states right interpretation … to justify an exclusively state’s right view, the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used “right of the people” in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment’s “right of the people” had reverted to its normal individual right meaning; (4) “right of the people” was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished “the states” from “the people,” although it had failed to do so in the second amendment. Any one of these textual incongruities demanded by an exclusively state’s right position dooms it. Cumulatively they present a truly grotesque reading of the Bill of Rights.

It is hard to imagine that the framers drafting could have been poor enough to justify the twisted logic needed to accept the state-militia-only theory.

Scholarly reappraisals of the right to bear arms have fueled numerous law review articles supporting Kates’ view. An example is the discovery of the so-called “Sherman draft” of the Bill of Rights in the papers of James Madison. According to an African-American perspective, “It appears that the Second Amendment was, at least in part, adopted to assure the southern states that they could maintain armed militia to control their slaves,” “Race, Riots and Guns,” 66 S. Cal. L. Rev. (1993) 1366 at 1387-88. The author is probably correct because the framers clearly represented a variety of viewpoints. But what points of view were reflected in the final version of the Second Amendment?

The Sherman draft contains a version of the Second Amendment that provides only for state militias. The fact that it was not adopted in that form allows one to infer that the version that was adopted provided for more than those militias. The Sherman draft is one reason that there is a strong consensus among scholars that recognizing the individual’s right to protect himself was one of the purposes of the version of the Second Amendment’ that was adopted.

Another area that historians are examining is the English origin of the right to be armed. Apparently what later became a right of Englishmen began as an outgrowth of the feudal obligation to bear arms in support of one’s liege lord and in defense of the community. After the English Civil War, the monarchy began to put such restrictions on the bearing of arms that Britons began to fear for their personal safety. By 1689, Parliament responded by transforming the obligation into a right and continued to strengthen that right through the next century. That right has since been lost as Great Britain has adopted laws that now so restrict private ownership of firearms as to virtually outlaw their possession. (An Englishman must have a license to possess a double-edged blade more than three inches long, let alone a gun). But the rights that were accorded to Englishmen of the day were on the minds of the Founding Fathers. (See interview with Joyce Lee Malcolm, author of “To Keep and Bear Arms,” National Law Journal October 3, 1994). [6]

Another article of note is Sanford Levinson’s “The Embarrassing Second Amendment,” 99 Yale L. J. 673 (1989). It is written by a liberal who has no affection for firearms but whose honesty compels him to a conclusion he doesn’t enjoy. (For an example of small-minded viciousness and bigotry in response to Levinson’s article see “Guns, Cowboys, Philadelphia Mayors and Civic Republicanism On Sanford Levinson’s The Embarrassing Second Amendment,” 99 Yale LJ., 661(1989).)

Levinson clearly recognizes that the framers intended an individual right, but a strained reading of his article could lead to the conclusion that he feels that the self-protection function of the Second Amendment has been superseded by the growth of modem police forces. When this is pointed out, the author replies that, given the state of American society, he would not want to be read as supporting interference with the people’s right to defend themselves. While Levinson’s work is an especially detailed and insightful analysis, its thrust is typical of modem law review articles. [7]

One thing that should be emphasized is that there are really two groups of scholars which support the individual right theory. There are those that are closely aligned with the NRA, like Halbrook and the NRA’s own attorneys, including Robert Dowlut (a prolific writer himself). But there is another group of legal scholars represented by authors like Kates, Levinson, Professor Akhil Amar of Yale and Professor Glen Reynolds of the University of Tennessee, who tend to be liberal and to distance themselves from the NRA. The support that the individual right theory gets from this group of independent scholars is important proof that there is strong intellectual underpinning for the theory that goes far beyond mere partisanship.

The two independently written articles in the HCI bibliography don’t provide much support for the theory that there is no individual right. One, “Race Riots and Guns,” doesn’t even discuss the question of. whether there is an individual right. The author merely comments that court decisions have “consistently” favored the militia theory. The author argues that the availability of weapons to the general citizenry has generally worked against African-Americans, and so we ought to have stringent gun control, an entirely separate topic.

The other article, “Ending the other Arms Race,” 10 Yale.L & Pol’y Rev. 488 (1992) does advance the argument that there is no individual right. But the author’s main thrust is the importance of banning assault weapons. In an unpublished piece entitled “Only Handguns are Responsible for Soaring Murder Rate,” HCI argues just the opposite. Further, the author inaccurately states that the individual’s right to bear arms is mentioned only once in Dred Scott instead of twice as is actually the case and dismisses the one quote, cited above, that he does acknowledge as something that “barely rises to the level of dicta.” Interestingly, the author does acknowledge, “Most of the available statistics, however, do not demonstrate that local gun control laws reduce crime.” It is hard to imagine that HCI is happy to have to rely on this piece.

So there are serious limitations on HCI’s ability to point to independently written scholarly work that supports its point on view. Indeed it is almost impossible for HCI to do so. Eighty percent of the recent law review articles that support the militia theory were written or co-authored by one HCI staff member. One of the two such articles does not do so except in passing, and the other disagrees with HCI about important points. HCI, unlike the NRA, is simply unable to point to a respectable, let alone strong, body of independent scholarship that supports its point of view.

To summarize this material on commentaries, “The writings of scholars who have written on the subject are virtually united on the point that the Second Amendment protects an individual right to keep and bear arms, not simply the state’s national guards.” (Glen Reynolds, May 3 letter to the editor of the New York Times, cited at the beginning of this article.) It should be clear by now that Henigan’s opinion to the contrary, quoted above, is a reflection of his zeal for gun control and that that zeal has been allowed to come between him and sound judgment about the topic. [8]
Conclusion

This analysis of the meaning of the Second Amendment is quite different from the opinions expressed in the Rolling Stone article and the New York Times advertisement discussed at the beginning of this piece. It should be clear that there are good reasons for that difference. It is difficult, at best, to make a credible case that there is no individual right to keep and bear arms. Fifty-plus law review articles since 1960 and several full-length books say there is.

None of this can be read as an argument that gun control is illegal or necessarily unproductive. The police power, the Commerce Clause and other Constitutional provisions furnish obvious bases for well-thought-out measures that have a reasonable probability of actually reducing crime. If MADD can have considerable success in curbing abuse of automobiles, and alcohol by targeting the abusers, then it is to be supposed that the same success could be had by targeting firearm abusers. But the intellectual basis that gun prohibitionists have chosen (that we have no individual right to be armed) is fallacious.

The prohibitionist agenda of HCI and the vigorous support that organization and its allies get from the mainstream media makes it likely that gun control laws are going to be passed on the state and federal level that reflect that organization’s desire to end, or severely restrict, private ownership of firearms in this country. Those laws are likely to emerge from the legislative process in less burdensome forms than they would have before the press started (as they have recently) to be more evenhanded in their reporting about the nature and extent of our problems with armed crime. None-the-less, it is likely that the high court will be asked to review them. If it accepts certiorari it is hard to see how it can find an individual right in Verdugo and Casey without finding it in some future case. No matter how the high court allows the right to keep and bear arms to be limited, structured, or to be balanced against other rights, an explicit recognition of that right is likely to be in our future.
Endnotes

[1] No group that works to protect our right to be armed favors an unlimited right to keep and bear arms, although such a stance is frequently and falsely attributed to the NRA. For example, Herb Legg, an Olympia attorney who is also a prolific writer of letters to editors, described the NRA that way. When I asked him for the basis for his assertion, he sent a copy of an article from Mother Jones that accused the NRA of taking that position. That is as close as anyone can come to proving that that is a fair description of the NRA position.

During another of my conversations with an HCI attorney, she characterized the NRA as supporting the idea that anyone should be able to have any kind of weapon anytime anywhere. I asked her, too, for verification, and never got it.

That sort of vilification is not in the best interests of the country. There are a number of restrictions on owning and using arms that the NRA would probably support and which might have positive impacts. But falsely claiming that the NRA adheres to positions that it does not favor gives great credibility, within pro-individual rights groups, to slippery-slope type arguments and makes it difficult to achieve working relationships between supporters of our right to be armed and gun prohibitionist groups.
[2] Possibly commentators miss the point that firearms are like most machinery in that nothing develops competence with them like long familiarity. That is important now, but it was especially important when the militia had such minuscule resources for training. The effectiveness of the militia depended heavily on the members having their weapons readily available to them for informal practice and use, and for older members of a family to instruct the younger. That is probably hard for people who do not enjoy shooting and hunting to grasp. But even today, when the military has much greater resources available for training, light infantry units still draw heavily on recruits from rural areas where rifles and shotguns are a common part of life. The Miller court could be read as recognizing the importance of long familiarity with firearms when it made the comments from page 178, cited above.
[3] “Handgun Prohibition and the Original Meaning of the Second Amendment,” 83 Mich. L. Rev. 204, (1983) note 170, cites 22 cases where courts interpreting state constitutional provisions worded similarly to the Second Amendment found for the individual rights theory.
[4] The proposal to raise gun dealer license fees, punitively, on the theory that small-scale gun dealers somehow contribute disproportionately to crime is the classic example of a proposal that is so useless that it is fair to call it silly. Perhaps the silliness of the idea alone should warrant that it receive strict scrutiny. The idea collapses when you realize that there is an inverse correlation between a state’s per capita crime level and the per capita number of dealers (U.S. News and World Report, 1/ 17/94). It is not necessary to argue that more gun dealers means less crime to see that fewer dealers most assuredly do not mean less crime.

More important, a letter to President Clinton dated July 19, 1994, and signed by the heads of ten organizations as far apart as the NRA and the ACLU, deplores the government’s growing practice of conducting paramilitary operations against American citizens on American soil. It chronicles some of the worst of the heavy-handed raids and assaults carried out by federal and local agencies that have invaded homes on the most flimsy of evidence. (The extent of the practice-and the abuses involved are described in the Christian Science Monitor, 5/24/94). On several occasions, the courts have found that the conduct of the law enforcement officers involved was so outrageous that it justified the use of deadly force by the individuals whose homes were invaded. Defense against just such oppressive acts was certainly one of the things the framers had in mind when the Bill of Rights was drafted. Anything that is serious enough to bring together such a diverse group of organizations is sufficiently serious that we should be very reluctant to interfere with the individual’s right to defend himself against it.
[5] During one of my conversations with the legal staff of HCI, I made this point about Halbrook. The HCI staffer responded, “High powered rifles, you mean like assault rifles?” Apparently she did not realize that “assault rifles” came into use when it was realized that the cartridges that were used in infantry rifles from the turn of the century until recently were much too powerful. They had been designed when soldiers needed something that would drop a cavalry horse some distance away. Assault rifles generally use lighter-weight, inexpensive, intermediate-powered cartridges. I would expect that most of the readers of this article probably aren’t familiar with this bit of esoterica any more than was the HCI staffer. But in contrast to most of the readers of this article, HCI claims expertise on what we should be doing about our crime problems and the characteristics of weapons they seek to regulate should certainly be part of that expertise.
[6] One consequence of the publication of Malcolm’s book is a growing debate about why Britain was so much safer a country when there were fewer restrictions on peoples right to be armed. There are good reasons for asking the same sort of questions both here and in Canada.
[7] There are some law review articles, on which neither side in the debate relies, that seem to be intellectual dead ends. One is “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” 101 Yale LJ. 551 (1991). The author is not arguing the framers’ intentions, but asserting that since we no longer possess a “virtuous citizenry the Amendment cannot have any literal meaning.” Accepting, for the sake of argument, our lack of virtue, I fail to see why an argument that we no longer have a “virtuous citizenry” leads to the conclusion that the Second Amendment “has no literal meaning,” unless that argument leads equally compellingly to the conclusion that constitutional provisions protecting say, freedom of speech, have “no literal meaning.”
[8] Dennis Henigan’s zeal leads him to have opinions about related matters that are also difficult to support. For example, he said, “The 10th Amendment, however, is not designed to protect state and local officials from federal responsibilities, but rather to protect individual rights.” (The Washington Times, July 26, 1994). Perhaps he should explain the basis for that statement to the Justices who signed the majority opinion in Verdugo-Urquidez cited above.
WSBA member William G. Dennis practices in Kelso.