Bill of Rights Journal
20 (1987): 13
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

MICHAEL K. BEARD & KRISTIN M. RAND *

Article II

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall to be infringed

The National Rifle Association is the only lobbying organization in Washington with half an amendment emblazoned across the front of its building. The NRA systematically deletes the phrase "A well regulated militia being necessary to the security of a free state," from the oft-quoted second phrase, "the right of the people to keep and bear arms shall not be infringed."

The Second Amendment is the most misunderstood of the amendments to the United States Constitution. There exists an extensive body of authority supporting the interpretation that the amendment protects a collective right of the states rather than an individual right to own guns. However, the gun lobby, particularly the NRA, persists in propagating the myth that the amendment guarantees an individual right.

A review of the history and decisions relating to the Second Amendment will explain why those who benefit from the current misinterpretation will not likely choose to make their arguments in court.

The Second Amendment was included in the U.S. Constitution to enable the states to maintain a militia composed of civilians who would become soldiers should the security, of the nation be threatened. The amendment was generated by a deep distrust of standing armies and not out of any desire to protect the right of an individual to own a firearm for self-defense or other proper purpose.

The U.S. Supreme Court has addressed the issue in several cases. In 1886, the court ruled in Presser v. Illinois that the Second Amendment does not apply to the states and acts only as a check on the power of the federal government. The argument that the Second Amendment is incorporated against the states through the 14th Amendment has been rejected repeatedly. States therefore are free to regulate private ownership of handguns and other firearms in any way they see fit. The issue then becomes to what extent the federal government may regulate the ownership of firearms by private citizens.

The U.S. Supreme Court dealt directly with the scope of the Second Amendment in a 1939 decision. In United States v. Miller, the court upheld a federal law making it a crime to ship a sawed-off shotgun in interstate commerce. The court refused to strike down the law as volatile of the Second Amendment because there was no evidence that a sawed-off shotgun bad "Some reasonable relationship to the preservation or efficiency of a well regulated militia." The court held that the Second Amendment "must be interpreted and applied" keeping in mind the obvious intention of the continuation and effectiveness of a militia.

The Supreme Court has not recently had occasion to speak directly on the Second Amendment. However, justice Douglas addressed the subject in a powerful dissent, joined by justice Marshall, in a case extending police ability to stop and frisk suspects. Justice Douglas pointed out that part of the damage wrought by popular misinterpretation of the Second Amendment is a diminution in Fourth Amendment protections against search and seizure. Disagreeing with the majority opinion expanding police power he argued, "The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment... There is no reason why all pistols should not be barred to everyone except the police."

The federal courts, in accordance with the Supreme Court precedents, consistently hold that there is no individual right to own a firearm.

In United States v. Warin, the Sixth Circuit Court of Appeals expressed exasperation with the misguided arguments made by the defendant in attempting to persuade [Page 14] the court that a federal law prohibiting the possession of an unregistered machine gun violated his Second Amendment rights. In upholding the defendant's conviction under the federal law, the court stated, "It would unduly extend this opinion to attempt to deal with every argument made by defendant and amices curiae, Second Amendment Foundation, all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States."

In a decision upholding a ban on the possession of handguns in the Illinois town of Morton Grove, the Seventh Circuit stated flatly, "possession of handguns by individuals is not part of the right to keep and bear arms." The U.S. Supreme Court refused to review this decision.

The same court upheld an ordinance freezing the number of handguns in Chicago when it was challenged as a violation of the equal protection clause. The court ruled that the ordinance need only be rationally related to a legitimate state interest. Since the legislation did "not impinge upon the exercise of a fundamental personal right," a higher level of scrutiny was not mandated.

In short, every federal court decision that has considered the issue has given the Second Amendment a collective, militia interpretation. Moreover, no gun control measure has ever been struck down as unconstitutional under the Second Amendment. Clearly, the federal government is free to regulate or prohibit the possession and transfer of firearms in order to promote the general welfare of the public.

Despite the volume of evidence to the contrary, Americans continue to believe the Second Amendment is concerned with individual rights. The extent of the confusion is apparent from the results of a recent Hearst Corp. poll, which found that half of those surveyed believed the constitution guarantees every citizen the right to own a handgun. Why the misinterpretation?

It is primarily the result of an extremely successful propaganda campaign carried out by the gun lobby. At the forefront of the disinformation effort is the NRA. The NRA, and other pro-gun groups, regularly mobilize members' ingrained fear of infringement of a perceived individual right to bear arms for fundraising purposes and constantly reinforce the idea that the Constitution guarantees all Americans the right to keep and bear firearms for home and self protection. A recent NRA ad campaign admonishes, "Don't own a firearm if you choose not to. But never let anyone deny or delay your constitutional freedom to make that choice." implicit in this message is the suggestion that even a waiting period imposed before a firearm purchase somehow would impinge on rights guaranteed by the Second Amendment.

The NRA and other pro-gun groups get a lot of mileage out of the Second Amendment and have succeeded in convincing most Americans that banning individual ownership of firearms would be unconstitutional. The problem is, the gun lobby does it believe their own argument.

The firearm lobby has been presented with the perfect opportunity to prove the Second Amendment was intended to guarantee an individual right. In 1986, Congress passed the first federal ban on any type of firearm when it banned the sale to private persons of machine guns manufactured after May 19,1986. This new law represents the first opportunity to challenge the con- [Page 15] cept of a federally imposed ban on a class of firearm.

If the gun lobby bad confidence in the arguments they offer in support of their interpretation of the Second Amendment they would have filed suit on May 20,1986 challenging the ban as a direct violation of individual Second Amendment rights. The gun control movement realizes that there could be no greater public relations coup than a modern U.S. Supreme Court decision affirming the fact that the Second Amendment guarantees not an individual right to have firearms but a right of the states to arm a militia for the collective defense of the nation. Unfortunately, the gun lobby knows that this indeed would be the result if the Supreme Court were to consider the Second Amendment. They therefore are not anxious to pursue such a case.

It is time the gun lobby be forced to address the issue of gun control on the merits. Handguns are undoubtedly the murder weapons of choice, accounting for nearly half of all homicides in this country. Almost half of those 9,000 were simply a quick end to an argument. Another 12,000 people commit suicide with handguns each year. Mental health professionals agree that up to 60 percent of handgun suicides would not have occurred were it not for the immediate presence of a lethal weapon. Finally, there is little argument that the 1,000 unintentional fatal injuries would not have happened if a handgun had not been accessible.

However, measures of handgun control, registration, licensing, and even mandatory sentencing may have limited success reducing felony related incidents. Nothing short of a total ban on private possession can make a dramatic impact on the enormous toll this one class of weapon has taken on the citizens of this country. There is certainly no constitutional barrier to laws designed to end the slaughter.

Michael K. Beard & Kristin M. Rand

Michael K. Beard is executive director of the National Coalition to Ban Handguns. Kristin M. Rand is an attorney with the coalition.