The Second Amendment

A Canadian editorialist writes:

The Second Amendment Fantasy and How Americans Have Been Taken In

(h/t Joe Huffman.)

SailorCurt has already weighed in and I had to join the fray:

I have read your article carefully and I must respectfully disagree.

The Second Amendment protects (does not create) the right of law-abiding American adults to possess ordinary rifles, pistols and shotguns in their own homes for any lawful purpose. This right is not connected to any membership in a militia. Nor is it preconditioned on any eligibility for, or even the existence of, a militia.

Your article goes on at some length about the purpose of the founding of the NRA, but this is really irrelevant to the purpose of the Second Amendment. It is something of a “straw man” argument to suppose that if one can prove that the NRA was not founded to encourage civilian marksmanship, that this somehow weakens the Second Amendment protection of civilians to keep and bear arms. When the 2A was still being debated in the U.S. Senate, it was then known as Article Two of the Bill of Rights. In the Senate, a motion was made to add the phrase, “for the common defense”. If adopted, this arguably would have limited the 2A to a militia context, but the proposal was defeated by a voice vote in the Senate, was never brought up in the Senate-House conference committee, and the Second Amendment was passed by Congress, signed by the President and ratified by the States without any such restriction. You quote Garry Wills on this as saying, “The record does not say why the motion was rejected...” but surely the fact that it was rejected is far more important than why it was rejected.

You implied that the Miller case upheld a conviction. This is not true. Read the decision. Mr. Miller had already won his appeal and had been released from custody. It was the government which appealed.

You stated, “The Court declared that a sawed-off shotgun is not a militia weapon.” This is demonstrably false; read the decision. The U.S. Supreme Court remanded the case back to the lower court for a hearing as to whether the gun in question, a sawed-off shotgun, was “useful in a militia context”. That's it. The SCOTUS never said that the gun did not have a military purpose; Justice McReynolds, who wrote the decision, said that there was “no evidence”, and sent the case back to the lower court to hold evidentiary proceedings to provide that evidence. And that's where the Miller case ended. McReynold's decision never mentioned the defendant's membership in a militia, eligibility for membership, or even the existence of a militia; he was only interested in the gun. And the very fact that the 1939 SCOTUS agreed to hear the case at all is a strong indication that they considered it an individual right. If the 2A applied only to militias, or to states, then Mr. Miller would have lacked “standing”.

The Miller decision is often called “confusing” or “vague” or “cryptic”, and both sides in the American debate on gun-control have cited it as supporting their views. For example, opponents of gun control have interpreted the Miller decision as protecting the right of Americans civilians to own military weapons without limit, but not hunting or target-shooting weapons. That's a bit of a stretch, in my opinion, but it is even more of a stretch to claim, as gun-control advocates do, that the Miller case upheld a conviction; that is simply false.

The best reading on the legal history of the 2A can be found in the decisions in the Heller case, in the Parker case that preceded it, and in the Emerson case in the Fifth Circuit. The references and footnotes are particularly valuable. Even the dissent in the Heller case contains the astonishing admission that the four dissenting Justices recognized that the 2A protected an individual right. It is right there in the second sentence of the dissent.

The nation's preeminent scholar on the Constitution, Harvard professor Lawrence Tribe, having studied the issue in exhaustive detail, agrees that the 2A protects an individual right which cannot be infringed without an unusually strong justification, such as a criminal conviction or a history of mental illness, etc. and the Heller decision follows this reasoning.

As to the “revolutionary purpose” of the Second Amendment, this has been favorably cited by two liberal icons of the 20th century: Hubert Humphrey and John F. Kennedy. But my favorite quote in this area is from Judge Alex Kozinski of the Ninth Circuit:

“The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do,” Judge Kozinski noted. “But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”