Can the Second Amendment Survive?
by Ashley Halsey, Jr.
Reprinted
by permission of: The American Rifleman, March 1973 pp. 17-19.
As of this moment, it is the official position of the Federal
Government that the Second Amendment does not protect the right of individual citizens
to keep and bear firearms.
The exact words used are that "the Second Amendment does not apply
to private citizens as an individual right." Although that flat statement
was made at a relatively low level - by an Assistant U.S. Attorney in
The official declaration that the Second Amendment is a dead letter so
far as individual gun owners are concerned, while shocking in its bluntness,
came as no surprise to those in
From a gun owner viewpoint, the big and burning question at present is whether
the high court interpreted the Second Amendment wrongly nearly 34 years ago,
and if it was wrong, what can be done about it now?
To many knowledgeable citizens including several Past Presidents of The
National Rifle Association who are highly-regarded lawyers, the court appears
to have made a grave mistake which now rises to plague the civil rights of 50
to 100 million law-abiding and well-intentioned American
firearms owners.
The second Amendment which the Supreme Court undertook to interpret in 1939, is one of the briefest of 10 safeguards to individual
American liberties which were written into the Constitution of the
A well-regulated militia,
being necessary to the security of a
Due
to the curious sentence structure and location of the three commas that
punctuate this single important paragraph, its precise meaning has long been
debated.
Back
in 1939, in an even more curiously constructed sentence, the Supreme Court held
in the language of Associate Justice James C. McReynolds that:
With obvious purpose to assure the
continuation and render possible the effectiveness of such forces (as the
militia) the declaration and guarantee of the Second Amendment were made. It
(the Second Amendment), must be interpreted and applied with that end in view.
(Note: The two phrases in parentheses
above were not part of the original decision, but have been inserted to make
clear what it is about.)
In
short, the court ruled that the Second Amendment was intended simply and solely
to support the militia, which the court, in 1939, evidently regarded as the
National Guard and perhaps a few state reserve units.
In
writing the court decision, Justice McReynolds reviewed early American laws on
the militia and stated that there was no evidence before the high court to show
that a sawed-off shotgun, the firearm in question, "is any part of the
ordinary military equipment or that its use could contribute to the common
defense."
Despite
its far-reaching effect, the case seems to have created little stir when it occurred.
The NRA took no cognizance of it and The
American Rifleman made no mention of the matter, perhaps because of its
obscure origin.
The
case arose under the National Firearms Act of 1934, originally passed to curb
gangster shootings, when two men named Jack Miller and Frank Layton were charged
with illegally transporting a sawed-off 12 ga.
shotgun across State lines from
The
two defendants argued through counsel that the 1934 act violated their constitutional
rights to bear arms under the Second Amendment. A U.S. District Judge agreed,
and threw the case out of his court. The government then appealed to the
Supreme Court, and Justice McReynolds wrote the decision holding that the right
to bear arms under the Second Amendment applied only to the militia.
The
only member of the 1939 court still on the bench, Associate Justice William
Douglas, took no part in the 1939 decision but quoted that decision only last June
in the case of Robert Williams, convicted in
"This
problem is an acute one,"
The
juridical attitude taken by the Supreme Court in 1939 and by Justice Douglas in
1972 was echoed in connection with a lawsuit by NRA Life Member Lewis Gene Freeman,
of
In
his suit, Freeman, who incidentally relies on fellow gun owners for financial
aid, contends that the refusals of gun dealers in other States to sell him
rifle, shotgun and pistol because of GCA68 "impair" his efficiency as
a member of the unorganized militia by withholding appropriate arms.
The
government moved to throw out the suit, contending that it could not be sued
without its own consent. Freeman amended his suit with some legal coaching from
lawyer David I. Caplan, and NRA Member in
That
the position taken by the Assistant U.S. Attorney in
Viewed
broadly, much of major significance on the right to bear arms appears to have
gone overlooked or deliberately ignored through the years in all this prancing procession
of legalism. Among other things apparently never fully considered are:
l. The original concept and intent
behind the Second Amendment.
2. Similar or stronger
provisions in at least 35 State Constitutions.
3. Use of shotguns,
sawed-off or not, as military arms in most
4. A 1903 U.S. law defining
the militia as not only the National Guard but all able-bodied males between 18
and 45.
To
take up these points one by one:
Where
the purpose of any constitutional provision or law is vague, obscure or under
deep question, a recognized procedure is to dig back to the thoughts and words
of those who originally framed it.
To
do this with the Second Amendment, one has simply to look up the wisdom of
George Mason (1725-1792), the great
The
papers of George Mason reveal quite clearly what he meant by
"militia" and his definition is far broader than that of the Supreme Court
as enunciated by Justice McReynolds. During a debate in
(See The Papers of George
Mason," R. A. Rutland, editor, Chapel Hill, N.C., The University of North
Carolina Press, 1970, Vol. III, pp. 1067-68, 1070-71, 1081, for fuller
details.)
So
there can be little doubt that George Mason, "Father of the Bill of
Rights," never intended to restrict the right to bear arms to a relatively
few men in uniform.
An
often-identical line of thought is reflected in many of the State Constitutions
adopted either during the early days of the Republic or in later years. In 35
of the 50 States, the rights of gun owners are defined by State Constitutions. If
the Second Amendment does not extend to these States, certainly the State
Constitutions would seem to be the highest law in such cases under the Ninth
and Tenth Amendments, which reserve to the States and "the people"
all rights and powers not spelled out in the U.S. Constitution. Justice Douglas
appears to have ignored this when he asserted last June that he saw nothing to
prevent "stiff State laws" against handguns, even to the point of prohibiting
private ownership.
At
least half of the State Constitutions go beyond the Second Amendment by spelling
out that the right to bear arms is an individual right for personal protection or
defense of home and property, and has nothing to do with a "well-regulated
militia." These States are:
How,
in the light of such ringing declarations, some may ask, can Justice Douglas
assert that such States can prohibit the private ownership of handguns or, for that
matter, any other arms?
When
Justice McReynolds could find nothing of record on the use of sawed-off
shotguns by the military, he obviously had not looked far or thoroughly. Perhaps
the Supreme Court was compelled to confine its consideration of the facts, as
differentiated from points of law, to whatever facts were presented in the
lower court. But the indisputable truth of the matter is that short-barrel
shotguns have been widely used in war.
The
U.S. Government has bought more than 125,000 12-ga. pump guns, usually with
18" or 20" barrels, for military purposes during the present century.
It purchased 100,000 Ithaca Model 37's under a single government contract in
the 1960's to arm South Vietnamese village defense forces. During World War I, it
bought some 30,000
So
deadly were the "trench guns," throwing loads of nine 00 buckshot, that
the German Foreign Office formally protested against this "barbarous"
American weapon Sept. 15, 1918, via the Swiss Government and threatened to
execute any Americans caught armed with it.
The
".
. . Gen. John J. Pershing, commander- in-chief of the American Expeditionary Force
(in France in 1917-18) was thoroughly sold on the use of shotguns, and if the war
had continued they no doubt would have been used in great numbers on all
fronts," writes Col. Robert H. Rankin, USMC (Ret'd),
in his new book entitled Small Arms in the Sea Services, (N. Flayderman & Co., Inc., New Milford,
Incidentally,
shotguns were found to be most effective in the jungle fighting in the South
Pacific and they were found to be very useful in repulsing the human wave attacks
launched by the Chinese Communists in
The
final touch to the sawed-off shotgun controversy is an official World War I
report (see below) which refers to the arms as "sawed-off"--leaving
little or no question of the status of a short-barrel shotgun as military arm.
As
for who constitutes the "militia" under the Second Amendment, Congress
has spoken firmly on the subject. On Jan. 21, 1903, Congress defined the
militia as consisting of all able-bodied male citizens "more than 18 and
less than 45 years of age," and divided them into two classes, "the
organized militia, to be known as the National Guard of the State, Territory or
Thus
the Congress classified all able males between 18 and 45, not in the National
Guard, as members of the militia. These men would now seem to be the
"people to keep and bear arms" whose right
to firearms "shall not be infringed" under the Second Amendment. Further,
under the broad doctrine of equal rights, it would appear that women also
should be included if they fall into age groups eligible for military service. Nor,
to judge by some recent court decisions, should there be discrimination due to
age.
So, in summation, a
sawed-off shotgun IS a military arm notwithstanding the 1939 decision; the
militia includes not only the National Guard but all able-bodied young and
middle - aged males and perhaps many more; the Second Amendment was not intended
to apply only to militia, anyhow, but to the "whole people," and
where it does not protect the rights of individual gun owners, State
Constitutions in 50% of the States do so.
The next time a firearms
case that does not involve the Federal government arises, it would be
interesting to see the