By Bruce A.
Since the NRA is about half a
century older than the ACLU, one
could ask 'Which is the distorted double of which?' But in fact, you
are mostly correct. The ACLU was born as a civil liberties
organization, the NRA was not. That is because it is only in recent
times that the Second Amendment has come under attack, by modern
liberalism, and it did not have to be defended in that manner in the
past. It is, in my opinion, to the NRA's great credit that it has
risen to the task.
My Constitutional Right to Own a SAM
Surely the National Rifle Association, in that sense, is
the distorted double of the American Civil Liberties Union. How do
civil libertarians feel when they hear their own dialog and
principles -- the absolutism of Constitutional rights, the fear of
the slippery slope -- echoed back to them in defense of the right to
Some seventy-five years ago or so, when the ACLU was founded, the
organization found itself in similar circumstances to those of the NRA
today, in certain regards. There was little case law regarding the First
Amendment, because it had been effectively ignored for a long time. The
Bill of Rights was little more than a scrap of paper, in practice. It
took many years of legal and political battles to build up this legal case
law that the ACLU can now further build upon. That is not to say that the
fight has become easy, but there are certain precedents which can now be
cited in legal arguments.
With regard to the Second Amendment (SA), there is precious little, and much
of that is not clear-cut, because there have not been broad, clear-cut
cases coming before the courts. Again, this is because it has not been
under attack for all that long.
Unfortunately, the ACLU, which claims to be the best defender of the Bill
of Rights, pretends that the SA doesn't exist. You have read my other
piece on this subject, so I won't belabor it. How do civil libertarians
feel about the NRA's defense of the SA? They ought to feel ashamed, both
at their ignorance of the history of that amendment, and that they are
ignoring what is essentially the bodyguard of the rest of the Bill of
Rights. If the Second Amendment goes, the rest is essentially unprotected and it is only
a matter of time before the rest goes, also. Those who favor gun control
often look to the
UK as a positive example. However, they would do well
to examine the direction of civil liberties there since the Brits have let
their right to bear arms slide into oblivion. Look at the powers the
police have in the name of combating terrorism. Look at their national
security laws. Recently, defendants lost the right to remain silent;
silence can now be used against them. Where will this go in the future?
There is nothing there to protect their civil liberties, no ultimate
threat, no ultimate power that the people have that is recognized, that
they understand and can turn to. The ranks of legal gun owners there have
been so decimated that now they account for nearly nothing. I strongly
recommend Joyce Lee Malcolm's book "To Keep and Bear Arms, The Origins of An
Anglo-American Right" (Harvard University Press, 1994) for a view of
what exactly they have lost, and what we could also lose.
These are phony issues, false from the outset, and I'm a little surprised
to see you raise them. There never were these "cop-killer bullets" to
protect, not in the sense that the media hysterically trumpeted. First,
the issue is not one of bullets that criminals used, but of the level of
protection of the police body armor ('bullet-proof' vests) that they choose
to wear. For reasons of comfort, cops prefer to wear the lightest models.
However, these only protect against weak-to-modest ammunition. Stronger
pistol ammunition, just run-of-the-mill stuff, not armor-piercing
ammunition that no one used anyway (it isn't necessary), and nearly every
rifle round in existence will penetrate these light-weight vests with
ease. Police know that if they want serious protection, they need to wear
serious body armor. It wasn't the street cops that were complaining,
anyway; it was the politically-appointed chiefs and commisioners and other
political opportunists, using this as a gun-control issue, that were
making noise on this subject, knowing that most listeners and readers were
ignorant of the real facts.
... The NRA, of course, is a past master at fighting on the beaches --
its opinion, which so closely resembles the absolutism of the ACLU,
is that a restriction on cop killer bullets, or plastic guns
undetectable by airport security, today, implies that all guns of
every description will be taken away tomorrow.
Second, there never has been a commercially available plastic gun
undetectable by airport security. This was always and entirely something
made up, facts "Twisted by knaves to make a trap for fools", as Kipling
said, and even people who are not fools were trapped, out of ignorance
about firearms. The gun involved was the Glock, now one of the most
commonly used police pistols. The lower part of the frame is made of
lightweight polymer, but it has steel rails for the slide (the upper
portion) to move on, and the slide itself is made of solid steel. This is
completely and easily detected by airport security.
This is undoubtedly true, but less and less all the time. Sometime in the
early 1980s, I joined the NRA. I was a member for only the year I paid for in
advance. The NRA leadership let itself get carried away by the
conservative ideology of many in the organization, which probably included
themselves. This was not sticking to the issues I cared about, and I
didn't want to contribute to those I abhorred, so I let my membership
lapse. But a few years ago, I rejoined. Things have changed. There is a
new leadership. The late president was someone known more for his strong
stand on environmental issues in his home state of Michigan and
nationally, than for his views on the SA. Others in the current
leadership know that the only way to get people with diverse political
views together is to stick to the issue that unites them, the right to
keep and bear arms, and the organization takes no position on unrelated
issues. And in the struggle, both they and the rank and file members are
learning a lot about all civil liberties, freedom of speech, search and
seizure, etc. I wouldn't sell them short before checking out the true
... To the NRA, the right to bear arms is thrilling, while there are
probably NRA members to whom the right of free speech seems puzzling
I'm sorry, but none of this is correct. To begin with, the first part of
the text is grammatically a subordinate clause, standing subordinate to
the main clause: "the right of the people to keep and bear Arms, shall
not be infringed". This is the main declaration, and the purpose, of the
amendment. I agree that it is unfortunate that it is worded this way,
because today there are too many people who can't (or don't bother to)
put things in their correct grammatical position in the sentence, and who
don't bother to find out what the words meant to the writers, so that the
real meaning can be discerned. "A well regulated Militia" does not imply
a militia encumbered with a lot of rules and regulations, but one that is
well drilled and trained, that can march in a straight line, stay supplied
with powder and ball, and keep the powder dry. Reading a little history
will make this clear.
The full text of the Constitutional language is:
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 first words, about the necessity of a militia, are often
omitted. When considered, they are ambiguous. Proponents of gun
control argue that the founders intended the Second Amendment only
to protect the states against the federal government, or to draw the
states into the new Union by reassuring them that they would remain
somewhat independent, continuing to have the right to organize their
A few glances through the Constitution and Bill of Rights makes it clear
that it is not the states which are being discussed by talking about a
right of "the people". Elsewhere in those documents, when states are
referred to, they say "states", and when individuals are referred to, they
"the people". (See the First, Fourth and Ninth amendments.) Further,
states don't have rights, they have powers. (See the Tenth amendment.) It
is people who have rights. Moreover, the states and their militia powers
are covered in the body of the Constitution. Discussing them here, in a
Bill of Rights would be contradictory to statements made elsewhere in
the document and incorrect. The militia referred to is the unorganized
militia, not the organized militias of the states, and the unorganized
militia was (and legally still is) the body of the adult citizenry,
primarily males, at arms. Since early in colonial times, there were
militia laws requiring the participation of the citizenry in such militias
for the common defense, and the SA just referred to that tradition. It is
making it clear that in order for the unorganized militia to properly
function, the people eligible to be a part of it must already be armed.
Saying that an organized state militia has the right to be armed would be
a little ludicrous, don't you think?
There is another important thing to remember about the Bill of Rights: it
doesn't grant rights, but only lists certain notable ones already
existing. The Ninth Amendment states: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." All of the rights people have
vis-a-vis firearms are not codified in the SA. Just as the right to be
armed to be able to fulfill one's part in the militia was an old,
pre-existing right, the right of a person to self-defense was
pre-existing, and even older. The same arms people can use for the common
defense are there for self defense also, and what portion of this that is
not codified in the Second Amendment is covered by the Ninth, if it needs
to be covered at all.
It was its
intent, but in Article I, Section 8 where, in describing the
powers of the federal government, it states: "To provide for organizing,
arming, and disciplining, the militia, and for governing such part of them
as may be employed in the service of the United States, reserving to the
states respectively, the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by
Congress". This is different and separate from the SA.
If the intent of the founders, translated into current day terms,
was to guarantee the states the right to organize National Guard
By those very arms specifically.
A good question, one I haven't thought about, but one only indirectly
germane to the issue at hand.
In the context of the time -- the late eighteenth century -- a
guarantee to the states of the right to bear arms should certainly
have implied the right to resist an oppressive federal government
and therefore (by use of those very arms, if necessary)
Is it? You forget the Declaration of Independence: "That whenever any
Form of Government becomes destructive of these ends, it is the Right of
the People to alter or to abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in such
form, as to them shall seem most likely to effect their Safety and
Happiness", something most familiar to the writer of the Bill of Rights.
Of course, the NRA does not view the Second Amendment as creating a
state's right; the militia referred to was always intended to be, or
has transmuted into, the body of all citizens taking arms
individually against an oppressive federal government. If this is
true, it is hard to imagine the founders deliberately drafting a
document containing the seeds of the Union's destruction by its own
Yes! And that was the genius of it. That, in the last analysis, is what
guarantees the rest of the Bill of Rights, and why the Constitution would
not have been ratified but for the promise of the Bill of Rights.
A right to bear arms against one's own government would be a very
peculiar right indeed.
It's a tough call, isn't it? But the fact that all aspects of it are not
easy does not make it invalid.
What would such a right mean in practice?
Could a cop killer plead the Second Amendment in extenuation, if his
act was political? Does the NRA believe that David Koresh and his
followers had a constitutional right to fire on federal agents
because they were behaving heavy handedly or oppressively? And if
the answer to this is yes, then: WHO MAKES THE DETERMINATION?
Exactly. And that is why the Second Amendment must be protected, because
this idea is precisely what the founders intended to protect.
Stop and think about this point for a moment. The right to bear arms
in itself would be meaningless if it did not imply the right to fire
them. This would be tantamount to saying that the First Amendment
right of free speech meant only the right to have organs of speech,
not to use them.
Not if you had been through what they had. It is this threat of
revolution which is the bulwark of the liberties protected by the Bill of
Rights. Without it, why not abolish them? This is why Jefferson said
And if the right to bear arms was really granted to
the states or to individual citizens as a means of self-protection
against oppressive government, it logically follows that the Second
Amendment protects the right not simply to fire guns at targets or
at deer, but at oppressive federal agents. Such a right of killing
would be strange, unique and surprising for the founders to have
wished to include in the Constitution.
what country can preserve its liberties, if its rulers are not warned from
time to time that this people preserve the spirit of resistance? Let them
take arms. ... The tree of liberty must be refreshed from time to time,
with the blood of patriots and tyrants
The strongest reason for the
people to retain the right to keep and bear arms is, as a last resort, to
protect themselves against tyranny in government.
And Hubert Humphrey:
Certainly, one of the chief guarantees of freedom under any government,
no matter how popular and respected, is the right of the citizen to keep
and bear arms. ... [T]he right of the citizen to bear arms is just one
more safeguard against a tyranny which now appears remote in America, but
which historically has proved to be always possible.
And Supreme Court Justice Louis D. Brandeis:
Experience should teach us to be most on our
guard to protect liberty when the Government's purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty
by evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding."
It's unfortunate that so many people have forgotten such wisdom.
I don't claim to be able to read the minds of the long-dead founders. I
think they might well be horrified, but not at the attempt to protect the
liberties which they strove to pass down to us. Rather, they would be
revulsed by the conditions under which many people must live that give
birth to this violence. And further horrified by the perversions of, and
concentration of wealth and power in, the economic system which they saw
as seeming to have such potential in its nascent form in their time.
It is possible that the right to bear arms was the least well
thought out section of the Constitution, and that the drafters would
be horrified if they could see the gun violence in our cities today
and then hear the sanctimonious use of the Second Amendment to
sanction the means of killing.
The Bill of Rights is, and always was, a package deal. It is the
consideration, if you will, of the social contract you spoke of, without
which the whole agreement fails, because the states would not have
ratified the Constitution without the promise of a Bill of Rights. No
complete and intact Bill of Rights, no Constitution, no United States.
The Constitution has grown and
changed to adapt to many social transformations; ... It may be possible
to ban guns entirely, without doing any fundamental violence to the
There is a sense among judges and scholars, the "conservative" in
the pure, not the political sense of the word, that the Constitution
ought not to be amended too easily. ...
Where this leads us is that the Second Amendment right to bear arms,
even if we personally believe it to be misguided, must be treated
with respect, like any other part of the Constitution. It is a force
in American life, and it means something which cannot simply be
disregarded or explained away.
When considered correctly, I would say that both are absolute. There is
no prohibition against yelling "fire" in a crowded theater if there's a
fire, only when there isn't. But this is not, fundamentally, what the
First Amendment is protecting. The Constitution and Bill of Rights are
political documents which were designed to protect things related to the
political and governmental system: life, liberty and the pursuit of
happiness, and things which flow from them. The prohibition of a false
statement about the existence of a fire in a crowded theater endangers
none of what the First Amendment was intended to protect, so its
existence does not mean that the FA's protection is not absolute.
But like the First Amendment right of
free speech, it is not absolute. Certain forms of speech are (and
always have been recognized to be) prohibited (e.g., yelling fire
falsely in a crowded theater) or subject to strict regulation
(pornography). Only a demagogue would argue that the right to bear
arms is more absolute than the right of speech.
Although the permit process has often been abused, it should not be viewed
as a limitation on speech, but rather as giving a notice so that some
event can occur, with minimal disruption to those not participating.
For example, it is well established that the First Amendment does
not prohibit some government regulation pertaining to protected
speech, for example, the necessity to obtain a permit before handing
out leaflets in a park.
Sorry. The first item is the only one protected by the Bill of Rights.
The others are not valid examples of this issue.
If government can regulate by permit the right to hand out a
leaflet, drive a car, catch a fish, perform dentistry or fly a
No, no, NO! Minors cannot vote. Convicted
felons have their right to vote revoked and can be subjected to
involuntary servitude. People who are mentally unstable and are a
danger to themselves or others can be confined even though they have
committed no crime. Except for such classes of people, where other
constitutional protections do not apply in limited ways,
everyone has the right to keep and bear arms, just as they may
freely speak their minds, vote, and not be enslaved. Ownership of
firearms by people not a member of such special classes as listed
above are absolutely permitted to own arms by the Bill of
it certainly should be able to regulate the right to own a gun,
Definitely not. Words can be dangerous, too. You can insult a person's
mother or race or religion, and such things might provoke the person to
violence, but your speech is nevertheless protected. The problem with
your above statement is that those "reasonable" regulations are
limitations of a fundamental right, and for that reason, they violate
the Second Amendment. But all is not lost! Please bear with me.
are dangerous instrumentalities and reasonable regulations imposing
waiting periods, safety classes or other such requirements should
certainly stand up.
What is the effect of a waiting period? Its effect is to say to a person
"You may not defend yourself for x days." People have been killed because
of that. They learn of a threat, perhaps from an ex-husband, perhaps from
someone recently released from prison. They want to buy a gun to take
home to protect them, and they are denied, told that they must wait some
period of time. And they are killed. That is not right! There are
better ways. Why is it that so many gun control advocates tried to squash
the Instant Check approach, advocated by the NRA and others, that would
have allowed an immediate computer check of a prospective buyer's police
record before purchase? This system has been put into place in Virginia
and other states, and works better than the waiting period, if only
because the waiting period does not guarantee that any records be checked
at all. And it allows the purchaser to have the protection he or she
needs when it is needed.
It seems obvious to me that the reason is that a waiting period makes it
unpleasant for gun buyers and, for the gun controllers, this is
preferable, because they do not view a waiting period as something to
enable a purchase to a non-prohibited person, but as a step toward further
restrictions on gun ownership (as has been publicly admitted by HCI
spokespeople in the past). A week or so ago, President Clinton issued a press
release trumpeting Brady as a success because "60,000 criminals" had been
denied firearms since the law took effect. This is blatantly dishonest.
He does not tell us that the vast majority of these people went on to buy
the guns because, in most cases, the record check either turned up a
criminal with a name similar to that of the buyer, or exposed a person
with unpaid parking tickets, an expired dog license, or some such. If it
is true that all of these 'criminals' were stopped, and also true that
it's a federal offense for a felon to attempt to buy a firearm, why have
there only been seven (7!) prosecutions for this since the Brady law went
Safety classes: Why do you want them? To allow people to handle firearms
more safely, shoot them only when legal, and hit what they aim at, so that
they can become better gun owners? Or do you want to make gun ownership
onerous and tedious, so that only the most intrepid will proceed and get
the protection they feel that they need? If it is the former, then you
are not proposing restrictions, but a form of enabling legislation, and I'm
sure that, in such case, we can come to some agreement. So what is your
goal? It makes a big difference.
To my knowledge, the issue has never come up at the Supreme Court
level. For some excellent background on the issue and on cases which
have come up, look at Volume 5
6 of the Journal on Firearms and Public Policy, the official
publication of the Center for the Study of Firearms and Public Policy of the Second Amendment Foundation. There is also other good information on the Internet.
In fact, no court has ever held that the Second
Amendment granted an absolute right to bear arms free of any
I covered this in my
ACLU letter, so I won't go into it again here.
It is doubtful that the founders, in drafting the Second Amendment,
intended it to permit the average citizen to place a loaded cannon
in his front yard pointed at his neighbor's house.
Wrong again. "Assault weapons", that is, the weapons a militia member
would carry, are the very weapons protected by the Second Amendment. In
fact, I understand (but do not have a citation to prove) that Britain's
King George III actually referred to the rifles carried by the colonials,
which had a much longer effective range that the Brown Bess muskets of the
British, as "assault weapons". And if such weapons of that day were
protected, then so are their modern equivalents.
Understanding that the NRA, like the ACLU, is fighting on the
beaches rather than on its own doorstep to avoid insults to its most
dearly-held beliefs, there is nothing repugnant or unconstitutional
in drawing the line to exclude semiautomatic weapons along with
I will write more on the semiautomatic weapons issue in later pieces.