'To keep and bear'

Mona Charen

March 10, 1993|By Mona Charen

THE standoff in Waco, Texas, and the bombing at the World Trade Center have re-ignited what has aptly been called "the Great American Gun War" -- the ongoing battle over gun control.

Why these two episodes in particular should have raised the gun control question is mysterious to me, since the Waco situation involves people who would be utterly unaffected by gun control (they are already in possession of illegal weapons -- so why would stricter laws help?). As for the Trade Center bomber, his weapon of choice appears to have been a Ford van loaded with dynamite, not a weapon currently affected by the gun-control controversy.

The gun debate has been marked by narrow-mindedness and dishonesty on both sides. Some conservatives have adhered tenaciously to absolutist positions on gun ownership -- like opposition to registration of gun owners, waiting periods to buy guns, background checks and restrictions on automatic weapons. They oppose all of this on the "camel's nose under the tent" theory.

On the other side, liberal supporters of gun control, usually fanatics about the Bill of Rights, like to pretend that the Second Amendment doesn't exist.

But the Second Amendment does exist, and even advocates of limited gun control (like me) must, to be intellectually honest, square their policy preference with the Constitution.

The Second Amendment reads as follows: "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." Liberal apologists for gun control tend to seize on the militia reference as evidence that the right to gun ownership referred only to the official functions of the state militias. Good scholarship does not support that view.

In the 18th century, the term "militia" referred to all white males between 18 and 45. Indeed, that usage still appears in the U.S. Code today and was called upon as recently as Pearl Harbor. Moreover, if the founders had intended the right to bear arms to refer only to the states, they would not have used the language "the right of the people."

Our founders included the Second Amendment in the Constitution for several reasons, but clearly, one of the chief motivations was a belief that an armed populace was the best protection against government despotism. Noah Webster spoke for many when he wrote, in a pamphlet supporting ratification of the Constitution, "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe." Samuel Adams hoped that "the Constitution never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms."

As Don P. Kates Jr. has written in the Michigan Law Review, "The strength and universality of contemporary sentiment on the issue of the individual's right to arms may be gauged with reference to the number of amendatory proposals which included it. Amending the Constitution to assure the right to arms was endorsed by five state ratifying conventions. By comparison, only four states suggested that the right to assemble, to due process, and against cruel and unusual punishment be guaranteed; only three states suggested that freedom of speech be guaranteed . . ."

Faced with such daunting historical evidence, scholars have focused on the distinction between the words "keep" and "bear." It may be argued that individuals were granted the right to "keep" guns in their homes, but only to "bear" them in public under the auspices of the militia. Concealed weapons, by this logic, can easily be forbidden.

It isn't fatal to the gun control argument to recognize that gun ownership is indeed a constitutional right. For one thing, one could propose to repeal the Second Amendment. Or, if that is too radical, one can argue that just as other protected rights, like the free exercise of religion, are limited in some respects, this right too may be subject to constraints.

The founders did not confront a nation in which ever greater numbers of children were murdering one another on playgrounds, and whole populations bed down at night to the sound of gunfire.

Mona Charen is a syndicated columnist.

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