To End the Gun Terror, End the Second Amendment Hoax

WALLACE CARROLL

July 04, 1993|By WALLACE CARROLL

Now that our troops in Somalia are helping to clear the gunmen from the streets of Mogadishu, can't we Americans here at home do something to lift the gun terror from our schools, playgrounds, parking lots, malls, post offices, housing projects, highways and the grim reaches of our cities where the police must risk their lives to uphold the law?

Of course we can. What we have to do now is to free ourselves from one of the great hoaxes of the 20th century.

This mighty country stands paralyzed in the face of an ever-spreading plague of guns. This national calamity we owe to the leaders of the National Rifle Association in Washington. With a tenacity and ferocity worthy of a better cause, they have fought every proposal, however moderate, to bring the menace under control.

In this endeavor, their principal weapon has been the Second Amendment to the Constitution -- or, rather, their version of the Second Amendment.

That amendment, they have insisted, gives everyone an absolute constitutional right to have every kind of firearm. Brandishing that "right," spending millions in lobbying and legal maneuvers and threatening doom to politicians who would oppose them, they have killed or stalled gun control initiatives in Congress, state legislatures and city governments.

At last, however, the nation is on the move.

In April, the citizens of New Jersey rose in their wrath and beat back an attempt by the NRA to repeal the state's ban on assault weapons. In California, where the legislature had passed a similar law in defiance of the NRA, the U.S. Court of Appeals rejected a constitutional challenge by the NRA, and the law stayed on the books. And in Virginia, which had been a wholesale source of supply for East Coast gunrunners, the governor and legislature stood up to an assault by the NRA and limited gun purchases to one a month.

Now the great Second Amendment hoax can be nailed once and for all if the rank-and-file of the NRA and other responsible citizens will master one simple truth: The Second Amendment means what the courts say it means. It does not mean what the NRA leaders have been telling the nation all these years.

The amendment says: "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."

The NRA's way with this amendment is to cross out the first clause about a "well-regulated militia" and quote only the second clause about "the right of the people." This truncated version certainly sounds like an ironclad constitutional guarantee.

And it is a version the NRA has used effectively in congressional hearings, state legislatures, local governing bodies and television broadcasts by the renowned constitutional authority Charlton Heston.

But what do the courts say?

The United States Code Annotated, which catalogs federal court opinions, carries summaries of 90 Second Amendment cases decided by the courts from 1886 to 1992. Not one of these 90 cases gives even a shadow of support to the NRA contention that every Tom, Dick and Harriet has a constitutional right to have firearms.

The classic case is United States vs. Miller, which was decided by the Supreme Court in 1939. Jack Miller and Frank Layton were indicted in Arkansas for transporting across the state lines TC a shotgun with a barrel less than 18 inches in length without having registered it and paid a tax as required by the National Firearms Act of 1934. In their defense before the Supreme Court, they argued that their prosecution was a violation of their Second Amendment right to keep and bear arms.

The court's opinion was delivered by Justice James C. McReynolds, who was no bubble-headed liberal but the strictest of strict constructionists. Justice McReynolds said that a sawed-off shotgun was no weapon for a militia and therefore the amendment did not guarantee the right to keep such a weapon.

Justice McReynolds went on to explain the origins of the amendment and its real purpose. The early citizens of this country, having suffered from a British army of occupation, did not want their new federal government to have a standing army. A consensus therefore developed that the defense of the states and the nation should be left to the state militias.

Accordingly, the 13 states passed laws requiring able-bodied men of military age, ranging from 16 to 50 years, to equip themselves with muskets and ammunition of standard specifications for service in the militia. In times of danger, such as an Indian uprising, a British or Spanish incursion on the frontiers or a domestic insurrection, the militias so equipped could be quickly rallied for defense.

This is the key to the amendment. It simply banned the national government from interfering with the state militias. The Americans of that time were wary of the concentration of power in the federal establishment.

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