Reply to -- My Constitutional Right to Own a SAM

By Bruce A. Clark (Written 4/8/96)

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.

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.

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 situation.

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.

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 say "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. By those very arms specifically. A good question, one I haven't thought about, but one only indirectly germane to the issue at hand. 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. 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. It's a tough call, isn't it? But the fact that all aspects of it are not easy does not make it invalid. Exactly. And that is why the Second Amendment must be protected, because this idea is precisely what the founders intended to protect. 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 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. 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. Quite right. 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. 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. Sorry. The first item is the only one protected by the Bill of Rights. The others are not valid examples of this issue. 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 Rights. 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.

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 into effect?

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 and Volume 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. I covered this in my ACLU letter, so I won't go into it again here. 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.

I will write more on the semiautomatic weapons issue in later pieces.