Tag Archives: Second Amendment

Guns, damn guns and things I didn’t know: Part the gajillionth

During the American Revolution, local militias –  who played the role of today’s  National Guard – had no collective arms and depended entirely upon the arms and ammunition of private citizens. (Okay, I knew that part.)

american-colonial-militia-rifleman-randy-steeleTo facilitate response time (the British are coming! the British are coming!), they often stockpiled their arms in one place for easy access. Basically, an armory.

Before the Revolution and in its very early days, the British – the ‘central government’ of that day – took to seizing those arms, something the good folks  took personally – those guns were private property after all. (Might that be the origin of our love affair with personal weapons – well, public weapons as well, since we are the largest arms exporter in the world.)

There are several references to militias in The Constitution (which I did not know; I thought it was only addressed in the Second Amendment). Article I assigns Congress the power to:

. . . provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming and disciplining, the Militia, and for governing of such Part of them as may be employed in the Service of the United States.

(I’m getting this from Jeffrey Toobin’s terrific 2012 book about Obama and the Roberts Court by the way.)

Toobin goes on:

Article II says the president is C in C of the army, navy and “Militia of the Several States when called into the actual Service of the United States”. It wasn’t until the Militia Act of 1903 that their functions were formally subsumed into other agencies, like the National Guard . . .

And this: in the first 200 years of our existence, the Supreme Court discussed the Second Amendment exactly once, in 1938. It – U.S. v. Miller – was a challenge to the National Firearms Act passed in 1934 in response to the gang violence of the day and in particular to the St. Valentine’s Day massacre, which horrified the country not least because ‘machine guns’ were used. The Court ruled – unanimously – that the Act complied fully with the Second Amendment. Justice McReynolds spoke for the Court, saying they’d concluded that the Second Amendment existed to preserve the rights of militias – not individuals – to keep and bear arms.

And the issue disappeared once again, resurfacing only after the Kennedy assassinations.

massacreThe Gun Control Act of 1968 had widespread public support including the strong support of the NRA (when they still represented actual gun owners). 

IRONY ALERT: That didn’t change until Ronald Reagan’s 1976 campaign for the presidency. Writing an article for Guns and Ammo in 1975, he set off an entirely different conversation about guns, working opposition into a libertarian message, even insisting that the Second Amendment prohibited gun control – so much so that the 1976 Republican platform proclaimed a new-found opposition to gun control, reversing its previous 1972 platform supporting gun control. And in 1977, hard-liners staged a coup d’etat at the NRA to align with the new position). Everything changed.

But back to 1939. Toobin calls the U.S. v. Miller decision:

entirely originalist in its reasoning. The opinion quoted the provisions of Article I  dealing with the powers and then stated “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Toobin continues:

Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause [“A well-regulated Militia  being necessary”, etc.] would be both unnecessary and meaningless.”

I find the reasoning of both that 1939 Court and of Jeffrey Toobin to be impeccable. (And as proof that I care, know that I had to type all this . . . no cut and paste from da books!)