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Cover: Stopping Power -- Why 70 Million Americans Own Guns

Stopping Power — Why 70 Million Americans Own Guns
A Book by J. Neil Schulman

The Second Amendment and the
Right to Keep and Bear Arms

This section contains my work on establishing that the text of the Second Amendment (“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.”) cannot be interpreted in any other way than as a constitutional protection of the right of the people to keep and bear arms. – JNS

Reply to the Executives
of the ACLU of Southern California
on the Meaning of
the Second Amendment

Original ACLU materials are shown in block quotes, and the replies in standard typeface.

ACLU of Southern California Launches Educational Campaign on Gun Control and the Second Amendment

As the nation’s oldest and most prominent defender of Constitutional Rights, the ACLU of Southern California today launched an educational campaign to eliminate popular myths about the Second Amendment to the U.S. Constitution.

“Governor Wilson’s crime summit and other political posturing to ‘get tough on crime’ are not focusing on ways to limit violence in our communities,” said Ramona Ripston, ACLU executive director. “We want to support one positive and obvious tool that will have a direct impact on thousands of lives. And, as an advocate of our freedoms under the U.S. Constitution, the ACLU wants to set the record straight on what our forefathers truly intended about our right to bear arms.”

The Second Amendment was written shortly after the Revolutionary War when Bill of Rights author James Madison and other leaders were still suspicious of any centralized government. In that context, the phrase “a well regulated Militia, being necessary to the security of a free State” reflected a vital concern of that time: the ability of states to defend themselves against a possibly tyrannical federal government or outside threats to the Union. Equipment and ammunition were kept in the house of private citizens because the militia of 1792 consisted of part-time citizen-soldiers.

Correct as far as it goes, however it should be noted that the threat of abuse of power by the national government became significant during the Civil War, and has become incrementally greater ever since. The usurpations and abuses of government at all levels in this country has never been greater.

“In four cases in which the Supreme Court addressed the issue, it has consistently held that the Second Amendment does not grant a blanket right of individual gun ownership,” said ACLU attorney Alan Friel. “Despite what is commonly believed, the Amendment does not prohibit rational and effective gun control.”

Both statements are technically true, but misleading. First, the Second Amendment does not grant the right of individual gun ownership, because that right precedes the Bill of Rights; all the Second Amendment does is protect that preexisting right. Second, constitutional law has never been interpreted as granting a “blanket” right to do anything – and that applies to the First, Fourth, and Fifth Amendments as much as it applies to the Second. However, the ACLU has historically fought for the most extreme protections – and the harshest limitations on exceptions – to constitutional rights, and it is especially pernicious that the ACLU of Southern California is arguing against ACLU’s traditional role of expanding, rather than contracting, the “blanket” protections of the Bill of Rights. As far as whether the Second Amendment prohibits rational and effective gun control, when some is proposed, we’ll see. No gun control law has ever proven to be effective at producing the effects for which it was passed: the reduction of crimes committed with guns, or even the denial of guns to those who most misuse them

As part of the campaign, the civil liberties group has published a new public education brochure and has placed a full-page advertisement in the West Coast edition of today’s New York Times. Public speaking and other educational activities are also planned.

This is entirely contrary to the purposes of the ACLU, which is an organization devoted to the protection of individual civil liberties and rights. In effect, the ACLU of Southern California is becoming an advocate of greater restrictions on individuals and greater police authority in its place.

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This is grandstanding, an attempt to recruit the Framers of the Constitution to a point of view held by the modern authoritarians of the ACLU of Southern California, and entirely antithetical to the actual documented reasons and thoughts of those who wrote the Constitution, the Bill of Rights, and the Second Amendment in particular.

“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 Second Amendment to the U.S. Constitution

HAVE YOU ever heard someone say gun control is a fine idea – except that the Second Amendment prohibits it?

It’s a popular sentiment. Fortunately, it’s not true.

Get that? “Fortunately” indeed. The ACLU executives’ agenda is exposed here: they wish greater gun control on the basis of personal opinions which have no grounds in ACLU doctrine, and are subverting the organization to their own personal ends. The fabrication of history begins here.

The Second Amendment was never intended as a gun license for the entire American populace. As original drafted – and as consistently interpreted by the courts for more than a century – the Amendment does not grant any blanket right to own a gun nor does it stand in the way of rational, effective gun control.

The executives of the ACLU of Southern California betray their anti-libertarian, authoritarian stance when they equate the Second Amendment to a “license”: they evidently cannot conceive of the Framers’ premise that rights originate with the individual, instead of beginning as grants of privilege or immunity from the government, reducing us all again to subjects of a ruler. That was the purpose of the American Revolution: to free us from that view of the tyrannical relationship between the State and the individual. Again, the Second Amendment does not grant the right to keep and bear arms, nor does it claim to: it merely states that “the right of the people to keep and bear arms shall not be infringed.” The phrasing itself belies the possible interpretation that the Second Amendment is a grant of rights. The Framers understood that what they were doing was a limitation on the powers of the government they were forging. The ACLU executives are confounded by this thought.

The idea of gun ownership as an American birthright is nothing more than a popular myth.

Throwing the right to keep and bear arms into the memory hole portrayed in Orwell’s Nineteen-eighty-four is worthy of the anti-Semites who claim that the Holocaust never happened. Seventy million Americans own firearms today. The sentiments to restrict the people’s arms were as common at the time of the American Revolution as they are today, by those seeking a monopoly of force for the State. As James Madison, the chief author of the Bill of Rights put it in Federalist Paper No. 46, “The advantage of being armed … the Americans possess over the people of all other nations … Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

The author of the Bill of Rights was aware that the American people being armed was an exception to the practice everywhere else on Earth (except Switzerland), and that the tendency would be for Americans to revert to the common condition of the rest of mankind if the right to keep and bear arms was not explicitly enshrined in our founding document. If the right to keep and bear arms is nothing more than a popular myth, with no basis in the history of our country, how is it that this right has survived for two centuries so that our civilian population is the best armed in the world?

This should be the first proof to the innocent that the executives of the ACLU of Southern California are attempting to deceive them about the actual history of the right to keep and bear arms, and the Second Amendment in particular.

Yet the controversy over gun control and the Second Amendment rages on.

Why, yes. Depriving an entire people of the right which is the practical defense of all their other rights is bound to cause controversy.

AS THE NATION’S oldest and most prominent defender of individual rights, the American Civil Liberties Union (ACLU) holds the U.S. Constitution and its Bill of Rights in the highest regard.

Indeed. I seriously doubt you could get ACLU’s national executive director, Ira Glasser, or its president, Nadine Strossen, to dismiss the Second Amendment from the Bill of rights so cavalierly. They are more likely to understand that the weakening of any of the Bill of Rights is bound to weaken all the others.

To clear up many misconceptions, here are some questions and answers about the Second Amendment and gun control.

ACLU of Southern California
Questions and Answers
on the Second Amendment

Q Does the Second Amendment in any way guarantee gun rights to individuals?

A No. The weight of historical and legal scholarship clearly shows that the Second Amendment was intended to guarantee that states could maintain armed forces to resist the federal government.

According to Constitutional attorney Don B. Kates, Jr., you will not be able to find this position supported in any major law- review article, while the legal and historical scholarship regarding the Second Amendment’s protection of an individual right to keep and bear private arms is so weighty as to be indisputable.

The historical and legal scholarship is most authoritative in a February, 1982 report issued by the United States Senate’s Subcommittee on the Constitution, Committee on the Judiciary, titled “The Right to Keep and Bear Arms.” To prove that, here are the two prefaces from that report, the first by the Committee Chairman, Senator Orrin G. Hatch (R., Utah) and the second by the Ranking Minority Member, Senator Dennis DeConcini (D., Arizona):

Senator Hatch:

In my studies as an attorney and as a United States Senator, I have constantly been amazed by the indifference or even hostility shown the Second Amendment by courts, legislatures, and commentators. James Madison would be startled to hear that his recognition of a right to keep and bear arms, which passed the House by a voice vote without objection and hardly a debate, has since been construed in but a single, and most ambiguous, Supreme Court decision, whereas his proposals for freedom of religion, which he made reluctantly out of fear that they would be rejected or narrowed beyond use, and those for freedom of assembly, which passed only after a lengthy and bitter debate, are the subject of scores of detailed and favorable decisions. Thomas Jefferson, who kept a veritable armory of pistols, rifles and shotguns at Monticello, and advised his nephew to forsake other sports in favor of hunting, would be astounded to hear supposed civil libertarians claim firearm ownership should be restricted. Samuel Adams, a handgun owner who pressed for an amendment stating that the “Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms,” would be shocked to hear that his native state today imposes a year’s sentence, without probation or parole, for carrying a firearm without a police permit.

This is not to imply that courts have totally ignored the impact of the Second Amendment in the Bill of Rights. No fewer than twenty-one decisions by the courts of our states have recognized an individual right to keep and bear arms, and a majority of these have not only recognized the right but invalidated laws or regulations which abridged it. Yet in all too many instances, courts or commentators have sought, for reasons only tangentially related to constitutional history, to construe this right out of existence. They argue that the Second Amendment’s words “right of the people” mean “a right of the state”-apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The “right of the people” to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to “bear arms” relates only to military uses. This not only violates a consistent constitutional reading of “right of the people” but also ignores that the second amendment protects a right to “keep” arms. These commentators contend instead that the amendment’s preamble regarding the necessity of a “well regulated militia … to a free state” means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term “militia” to relate to every citizen capable of bearing arms, and that Congress has established the present National Guard under its power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia.

When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a bill of rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority, Sam Adams, or the New Hampshire delegates. Madison proposed among other rights that “That right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposals for the Bill of Rights were then trimmed in the interests of brevity. The conscientious objector clause was removed following objections by Elbridge Gerry, who complained that future Congresses might abuse the exemption to excuse everyone from military service.

The proposal finally passed the House in its present form: “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.” In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing “For the common defense”.

The earliest American constitutional commentators concurred in giving this broad reading to the amendment. When St. George Tucker, later Chief Justice of the Virginia Supreme Court, in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone’s citation of the right of the subject “of having arms suitable to their condition and degree, and such as are allowed by law” with a citation to the Second Amendment, “And this without any qualification as to their condition or degree, as is the case in the British government.” William Rawle’s “View of the Constitution” published in Philadelphia in 1825 noted that under the Second Amendment: “The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” The Jefferson papers in the Library of Congress show that both Tucker and Rawle were friends of, and corresponded with, Thomas Jefferson. Their views are those of contemporaries of Jefferson, Madison and others, and are entitled to special weight. A few years later, Joseph Story in his “Commentaries on the Constitution” considered the right to keep and bear arms as “the palladium of the liberties of the republic,” which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass.

Subsequent legislation in the second Congress likewise supports the interpretation of the Second Amendment that creates an individual right. In the Militia Act of 1792, the second Congress defined “militia of the United States” to include almost every free adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and military equipment. This statute, incidentally, remained in effect into the early years of the present century as a legal requirement of gun ownership for most of the population of the United States. There can be little doubt from this that when the Congress and the people spoke of a “militia”, they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, which the political theorists at the time considered essential to ward off tyranny. From this militia, appropriate measures might create a “well regulated militia” of individuals trained in their duties and responsibilities as citizens and owners of firearms.

If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying-that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976-establishes the repeated, complete and inevitable failure of gun laws to control serious crime.

Immediately upon assuming chairmanship of the Subcommittee on the Constitution, I sponsored the report which follows as an effort to study, rather than ignore, the history of the controversy over the right to keep and bear arms. Utilizing the research capabilities of the Subcommittee on the Constitution, the resources of the Library of Congress, and the assistance of constitutional scholars such as Mary Kaaren Jolly, Steven [sic] Halbrook, and David T. Hardy, the subcommittee has managed to uncover information on the right to keep and bear arms which documents quite clearly its status as a major individual right of American citizens. We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration’s sponsors, now dead for two centuries. We did not make suppositions as to colonial interpretations of that Declaration’s right to keep and bear arms; we examined colonial newspapers which discussed it. We did not speculate as to the intent of the framers of the second amendment; we examined James Madison’s drafts for it, his handwritten outlines of speeches upon the Bill of Rights, and discussions of the second amendment by early scholars who were personal friends of Madison, Jefferson, and Washington and wrote while these still lived. What the Subcommittee on the Constitution uncovered was clear-and long-lost-proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The summary of our research and findings forms the first portion of this report.

In the interest of fairness and the presentation of a complete picture, we also invited groups which were likely to oppose this recognition of freedoms to submit their views. The statements of two associations who replied are reproduced here following the report of the Subcommittee. The Subcommittee also invited statements by Messr. Halbrook and Hardy, and by the National Rifle Association, whose statements likewise follow our report.

When I became chairman of the Subcommittee on the Constitution, I hoped that I would be able to assist in the protection of the constitutional rights of American citizens, rights which have too often been eroded in the belief that government could be relied upon for quick solutions to difficult problems.

Both as an American citizen and as a United States Senator I repudiate this view. I likewise repudiate the approach of those who believe to solve American problems you simple become something other than American. To my mind, the uniqueness of our free institutions, the fact that an American citizen can boast freedoms unknown in any other land, is all the more reason to resist any erosion of our individual rights. When our ancestors forged a land “conceived in liberty”, they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against government interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men.

Orrin G. Hatch,
Subcommittee on the Constitution
January 20, 1982.

Senator DeConcini:

The right to bear arms is a tradition with deep roots in American society. Thomas Jefferson proposed that “no free man shall ever be debarred the use of arms,” and Samuel Adams called for an amendment banning any law “to prevent the people of the United States who are peaceable citizens from keeping their own arms.” The Constitution of the State of Arizona, for example, recognized the “right of an individual citizen to bear arms in defense of himself or the State.”

Even though the tradition has deep roots, its application to modern America is the subject of intense controversy. Indeed, it is a controversy into which the Congress is beginning, once again, to immerse itself. I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts. Our Supreme Court has but once touched on its meaning at the Federal level and that decision, now nearly a half-century old, is so ambiguous that any school of thought can find some support in it. All Supreme Court decisions on the second amendment’s application to the States came in the last century, when constitutional law was far different that it is today. As ranking minority member of the Subcommittee on the Constitution, I, therefore, welcome the effort which led to this report-a report based not only upon the independent research of the subcommittee staff, but also upon full and fair presentation of the cases by all interested groups and individual scholars.

I personally believe that it is necessary for the Congress to amend the Gun Control Act of 1968. I welcome the opportunity to introduce this discussion of how best these amendments might be made.

The Constitution subcommittee staff has prepared this monograph bringing together proponents of both sides of the debate over the 1968 Act. I believe that the statements contained herein present the arguments fairly and thoroughly. I commend Senator Hatch, chairman of the subcommittee, for having this excellent reference work prepared. I am sure that it will be of great assistance to the Congress as it debates the second amendment and considers legislation to amend the Gun Control Act.

Dennis DeConcini,
Ranking Minority Member,
Subcommittee on the Constitution
January 20, 1982.

Senator DeConcini’s recommendation that Congress needed to amend the Gun Control Act of 1968 was taken up only four years later, when the Democrats controlling the House of Representatives and again controlling the Senate, passed the 1986 Firearms Owners Protection Act, which recognizes “the rights of citizens to keep and bear arms under the second amendment to the United States Constitution.”

You just barely might get away with dismissing the Senate Subcommittee’s report as political opinion – but the 1986 Firearms Owners Protection Act’s recognition of the Second Amendment is the law of the land passed by Congress and signed by the president.

The question is answered. The executives of the ACLU of Southern California are dead wrong.

Most scholars overwhelmingly concur that the Second Amendment was never intended to guarantee gun ownership rights for individual personal use. Small arms ownership was common when the Bill of Rights was adopted, with many people owning single-shot firearms for hunting in what was then an overwhelmingly rural nation.

What “scholars” concur that the Second Amendment was not intended to make such a guarantee would still have a hard time explaining away the clauses guaranteeing the right to keep and bear arms in 45 of the 50 state constitutions today. Why would state constitutions need to guarantee the right to keep and bear arms, if the only meaning of that phrase is to protect state governments from the federal government? And given that the right to keep and bear arms was – as the ACLU executives themselves admit – common at the time of the Bill of Rights’ ratification, the individual right to keep and bear arms would be otherwise guaranteed by the Ninth amendment to the U.S. Constitution, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It should also be noted that the ACLU executives, in attempting to portray the right to keep and bear arms as something antiquated and outdated, focus on the technology of the time only having reached the stage of single-shot firearms.

Are they willing to apply that reasoning to the rest of the U.S. Constitution?

The first amendment’s guarantee of free exercise of religion wouldn’t apply to the Mormons or the Christian Scientists; there were no Mormons or Christian Scientists in 1791 when the Bill of Rights was added to the Constitution.

The first amendment’s guarantee of freedom of the press wouldn’t apply to anything printed using photography, or computer typesetting or offset printing, nor would the guarantees of freedom of speech apply to the broadcast media, or anything using telephones or telegraphs – none of which existed in the 1790’s.

The fourth amendment’s guarantees of freedom from unreasonable searches wouldn’t apply to electronic wiretapping or the use of laser listening devices; nor satellite or infrared observation – the framers couldn’t have possibly conceived of any of them.

Nor, I suppose, could the United States have an Air Force or spy satellites, since there is no authorization anywhere in the Constitution for anything other than land or naval armed forces.

Why is it that arguments such as this are never brought up with respect to any constitutional issue relating to progress, except when it is to destroy the people’s right to keep and bear arms?

And how can it be that the American Civil Liberties Union of Southern California is controlled by persons who are so quick to divide the Bill of Rights so to allow authoritarians to conquer it?

Q Does the Second Amendment authorize Americans to possess and own any firearm they feel they may need?

A Clearly, no. The original intent of the Second Amendment was to protect the right of states to maintain state militias.

And who were the militia? According to George Mason, who refused to sign the U.S. Constitution because it did not yet have a Bill of Rights, the militia “consist now of the whole people.”

Private gun ownership that is not necessary to the maintenance of militias is not protected by the Second Amendment.

That is just backwards. The arms that individual militia members own are, by definition, the militia arms.

Q Does the Second Amendment allow government to limit – even prohibit – ownership of guns by individuals?

A Yes. Federal, state and local governments can all regulate guns without violating the Second Amendment.

Repeating this assertion without proof does not change it from false to true. Such proof is impossible because of repeated court decisions over the last two centuries which state just the opposite. While it is true that the Supreme Court of the United States has never enforced the Second Amendment as clearly as gun-rights activists would hope, neither has it ever ruled against the Second Amendment as protecting an individual right to keep and bear arms. Specific citations will follow as the ACLU document brings them up.

State authorities have considerable powers to regulate guns. The federal government can also regulate firearm ownership, although some scholars believe that the federal power may not be as extensive as that of an individual state.

There is no disputing that the right to keep and bear arms is under attack both legislatively and in the courts, and there have, indeed, been some adverse lower-court decisions, allowing infringements on these rights of the people. This does not change either the historical facts of the establishment of the right to keep and bear arms in protections offered by the U.S. Constitution and state constitutions, or the malfeasance of judges who have falsified the precedents in order to advance their personal anti-firearms agendas.

California, for example, has limited the ability of local governments to regulate firearms. While the state has kept its broad regulatory power, cities and counties can only prohibit guns from being carried in public places.

Q How have the courts – particularly the U.S. Supreme Court – interpreted the Second Amendment?

A The Supreme Court has flatly held that the individual’s right to keep and bear arms “is not a right granted by the Constitution.”

The decision in which the Supreme Court “flatly held” this was U.S. v. Cruikshank, referenced below, and the complete quotation from that decision which the ACLU executives deliberately leave out (because it would give away their game) is, “The second and tenth counts are equally defective. The right there specified is that of bearing arms for a lawful purpose. This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

What the Court meant is that the right to keep and bear arms preceded the constitution, and therefore was not a right granted by the constitution, such as, for example, the right to vote, which is not a natural right but is a created political right. The Court’s reasoning was that only rights originating in the federal Constitution could be imposed on the states by federal courts. That decision by the Reconstruction-era Supreme Court ignored the intent of the authors of the Fourteenth Amendment to apply the protections of the Bill of Rights – including, explicitly, the Second Amendment – to what they saw as the jurisdiction of state courts. If the Cruikshank decision were applied today, it would strike down almost all federal intervention against state and local governments, because federal courts could not impose any of the Bill of Rights on state or local governments, or on private individuals. States could then revert to segregated schools and restaurants, there could have been no federal trial of the Los Angeles police officers who beat Rodney King, and states could allow the Lord’s Prayer in public schools.

In the Cruikshank case, blacks who had been disarmed and terrorized by the Ku Klux Klan were arguing that the KKK had violated their rights; the Court was ruling that the federal courts had no jurisdiction to prevent the Klansmen from doing so. Is this what the ACLU of Southern California would like to see happen today?

Here are the Court’s words:

The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, “of their respective several lives and liberty of person without due process of law.” This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana.

The rights of life and personal liberty are natural rights of man. “To secure these rights,” says the Declaration of Independence, “governments are instituted among men, deriving their just powers from the consent of the governed.” The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these “unalienable rights with which they were endowed by their Creator.”

Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

In the four cases in which the high court has addressed the issue, it has consistently held that the Second Amendment does not confer a blanket right of individual gun ownership.

As I’ve demonstrated, in one of the four decisions, that is because the Court held the right existed previously and independently.

The most important Supreme Court Second Amendment case, U.S. v. Miller, was decided in 1939. It involved two men who illegally shipped a sawed-off shotgun from Oklahoma to Arkansas, then claimed the Second Amendment prohibited the federal government from prosecuting them.

The court emphatically disagreed, ruling that the Second Amendment has the “obvious intent” of creating state militias, not of authorizing individual gun ownership. In two earlier rulings in 1876 and 1886, the Supreme Court held that the Second Amendment affected only the federal government’s power to regulate gun ownership and had no effect on state gun control powers. Those cases, Presser v. U.S. and U.S. v. Cruikshank, formed the basis for the continuing legal decisions that the Second Amendment was not an impediment to rational gun control.

The Presser case, if anything, destroys the “militia” premise the ACLU brochure is arguing; the Court was ruling against Presser that he and other members of a local self-organized militia didn’t have the right to march armed as a group on city streets without a permit from local government. The question of whether the men had the right to carry arms as individuals was explicitly upheld as follows:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the Constitutional provision in question out of view, prohibit the people from keeping and bearing arms …

If anything, Presser contradicts Cruikshank in that it explicitly denies the states’ ability to “prohibit the people from keeping and bearing arms.”

The Miller case is odd in that the Supreme Court never heard arguments from the defense in overturning the lower-court ruling to dismiss charges on the basis of the defendants’ Second-amendment rights; only a prosecution brief — and one which suffered from the same lack of historical veracity as the ACLU brochure’s. Defendant Jack Miller had been murdered before the case reached the Supreme Court and the other defendant, Frank Layton, was in prison; no attorney argued their Second-amendment case to the Supreme Court.

Here is the meat of what the Supreme Court actually said in U.S. v. Miller: “The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

The Supreme Court was stating that a weapon, to be protected by the Second Amendment, had to have a military application, specifically one that was useful to a citizen’s militia. Weapons used only by gangsters, such as brass knuckles, would not, in their view, be promoting the framers’ intent of a well-armed citizenry. In the absence of counsel for the defendants to provide evidence to the Court that a sawed-off shotgun had some military application — which would have been easy since short-barreled shotguns were used in World War One – the court could “not take judicial notice” that a sawed-off shotgun was a “militia” weapon, and reversed the lower court’s ruling on that basis and that basis alone.

In fact, by the Miller court’s reasoning, full-auto M-16 assault rifles, full-auto AK-47’s, and Uzis would be useful to militia, and therefore their ownership by civilians would be protected by the Second Amendment. Is this an argument that the ACLU of Southern California executives are ready to embrace?

In another case that the Supreme Court declined to review, a federal appeals court in Illinois ruled in 1983 that the Second Amendment could not prevent a municipal government from banning handgun possession. In the case Quilici v. Village of Morton Grove, the appeals court held that contemporary handguns couldn’t be considered as weapons relevant to a collective militia.

The Supreme Court simply denied certiorari on the Morton Grove case, which gives it no precedential value outside of the federal district in which the case was resolved by the lower court. If the Supreme Court had actually wished to endorse the lower court’s decision, and endorse the ACLU of Southern California executives’ view of the irrelevancy of the Second Amendment, the Supreme Court could simply have issued a summary affirmation of the lower court’s decision. It did not do so, leaving the question unresolved. Constitutional attorney Stephen Halbrook (mentioned earlier in Senator Hatch’s preface) expressed to me privately in 1993 the thought that the Supreme Court had actually done Second-Amendment advocates a favor in denying cert on the Morton Grove case, since Quilici was both plaintiff and his own attorney, and refused to accept research and advice offered by renowned constitutional attorneys.

Q The National Rifle Association (NRA) says that the Second Amendment guarantees our right to keep and bear arms. Has the NRA got it wrong?

A Like any powerful special interest, the NRA works to secure its financial well-being. It insists on a view of the Second Amendment that defies virtually all court decisions and contradicts findings of most legal scholars. In so doing, the NRA actively perpetuates a seemingly endless cycle of gun-related fatalities.

Trust an ideologue to answer a question with an ad hominem attack on the motives of those who disagree with them, not only suggesting that the 3.4 million members of the National Rifle Association are motivated by financial well-being in their view of the purpose of the Second Amendment, but also scapegoating the law-abiding and well-trained NRA gun owners for the actions of the criminally insane few. This is a case of the pot calling the kettle black, since the ACLU of Southern California is financed by elite Hollywood jetsetters who undoubtedly feel firearms are a special privilege which they should enjoy as exclusively as their limousines and private spas, but also because the ACLU of Southern California is currently battling the public perception that its litigation on behalf of criminal defendants has created a judicial atmosphere in which no effective means remain for removing hardened criminals from society.

NRA intimidates politicians because it is very well financed and, like any wealthy single-issue special interest, can muster considerable pressure and tactics against legislators who oppose it. For decades, the NRA has aggressively promulgated its message.

This is likely envy speaking, since the National Rifle Association has 3.4 million members, while the total national membership of ACLU is reported to be 280,000. Which civil liberties organization is more likely to effectively lobby its views? One with almost 3-1/2 million members, or one slightly over a quarter million?

Other voices have begun to be heard, however, including the public health community, civil rights and civil liberties organizations, and groups committed to women’s, children’s, and family rights.

These voices are being heard because they play into the prejudices of the dominant media culture in this country. Meanwhile, none of the three major television networks will even sell commercial time to the NRA, while ostensibly news programs regularly air anti-gun propaganda as straight news.

The NRA implies that the Bill of Rights forces us to accept unlimited gun ownership and tolerate the human tragedies that guns cause in our society. That simply isn’t true.

What isn’t true is that unlimited gun ownership causes human tragedies. Where gun ownership and carrying is the most legally restricted and entangled in bureaucratic impediments – such as Washington D.C. – the crime rates are the highest. In places where gun ownership is free and easy – such as New Hampshire, Vermont, and Arizona – crime is substantially less. Still, the cause-and-effect relationship between gun ownership and crime is mutual, since high crime causes more gun ownership by potential victims at least as much as the reverse.

Q What are the Second Amendment positions of the American Civil Liberties Union and the ACLU of Southern California?

A For decades, both the national ACLU and its Southern California affiliate have agreed that the Second Amendment guarantees only the rights of states to maintain militias. The national ACLU has urged caution over gun control laws that, though well-intended, might infringe on other civil liberties.

The ACLU of Southern California believes effective gun control — especially of handguns and assault weapons — is essential to curbing the escalating violence in our society.

This irrelevant, quasi-religious belief by the executives of the ACLU of Southern California not only has nothing whatsoever to do with the purposes of the American Civil Liberties Union as a civil liberties organization, but it is also unfounded and contrary to the latest scientific evidence. The 1993 National Self Defense Survey conducted by professors Gary Kleck and Marc Gertz of the Department of Criminology and Criminal Justice at Florida State University found that there are 2.45 million genuine defensive civilian uses of firearms in a year, 1.9 million of them with handguns alone. That is a defensive use of a firearm once every 13 seconds.

Q The Second Amendment says “the right of the people to keep and bear arms shall not be infringed.” Doesn’t it mean just that?

A There is more to the Second Amendment than just the last 14 words.

Most of the debate on the Amendment has focused on its final phrase and entirely ignores its first phrase: “A well regulated Militia, being necessary to the Security of a free State …” And to dissect the Amendment is to destroy its context.

Indeed. And that is precisely what the executives of the ACLU of Southern California are attempting to do. But if you wish a professional opinion on the textual meaning of the Second Amendment, see the analyses by A.C. Brocki and Roy Copperud, following this chapter.

While some scholars have suggested that the Amendment gives individuals the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.

Yes, and there is popular sentiment for repealing all of the Bill of Rights. Do the executives of the ACLU of Southern California wish to make the existence of all rights inferior to transient public opinion?

However, the vast majority of constitutional experts agree that the right to keep and bear arms was intended to apply only to members of state-run, citizen militias.

Yes? Precisely what experts are those? Certainly not those consulted by the United States Senate, when it issued its report on the question, or the Congress and President of the United States, when they enacted the 1986 Firearms Owners Protection Act.

Q If it doesn’t guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?

A When James Madison (pictured below Thomas Jefferson on the cover) proposed the Bill of Rights in the late 1780’s, people were still suspicious of any centralized federal government. Just 10 years earlier, the British army had been an occupying force in Colonial America – enforcing arbitrary laws decreed from afar. After the Revolutionary War, the states insisted on the constitutional right to defend themselves in case the fledgling U.S. government became tyrannical like the British Crown. The states demanded the right to keep an armed “militia” as a form of insurance.

The executives of the ACLU of Southern California are guilty of something akin to blasphemy, by invoking Jefferson and Madison in support of their Orwellian reversal of history. In effect, we are hearing the sort of argument a spokesman for the Crown might have made to the American colonists that all’s well with the world and there’s no reason to keep firearms to prevent abuse of government power. The authoritarians of the ACLU of California masquerade as identifying with the now safely-entombed leaders of the American Revolution, but they are in fact counterrevolutionary Tories, who wish to restore this continent to European statism.

I’ve already quoted Madison about the value of civilian arms; here are a few choice quotes from Thomas Jefferson on the value of firearms:

“A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walk.”
– Thomas Jefferson, Encyclopedia of T. Jefferson,
318 (Foley, Ed., reissued 1967)

“What country before ever existed a century and a half without a rebellion? … The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
– Thomas Jefferson,
Letter to William Stevens Smith,
November 13, 1787.

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.”
– Thomas Jefferson to James Madison,
Dec. 20, 1787, quoted from
“Papers of Jefferson” edited by Boyd et al.

And, most importantly, Jefferson writing in the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – 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.”

Does it seem at all likely that Thomas Jefferson would have endorsed the notion that civilians are to be armed only after obtaining permission from government officials?

[Illustration. Caption: “A 1770 Paul Revere etching depicts British soldiers firing on a Boston Crowd.”]

What chutzpah.

Q What exactly is a “well regulated militia?”

A Militias in 1792 consisted of part-time citizen-soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barns – there was no other way to muster a militia with sufficient speed.

Over time, however, the state militias failed to develop as originally anticipated. States found it difficult to organize and finance their militias, and, by the mid-1800’s, they had effectively ceased to exist. Beginning in 1903, Congress began to pass legislation that would eventually transform state militias into what is now the National Guard.

Today, the National Guard – and Army Reserve – are scarcely recognizable as descendants of militias in the 1790’s. The National Guard and Reserve forces, in fact, do not permit personnel to store military weapons at home. And many of today’s weapons – tanks, armored personnel carriers, airplanes, and the like – hardly lend themselves to use by individuals.

As Senator Hatch pointed out, the current National Guards are not “descendants” of the militia at all; they were not organized under the militia clause of the constitution but under Congress’s power to raise an army. The Supreme Court decision in Perpich v. Department of Defense – in which Governor Rudy Perpich of Minnesota was seeking to prevent use of the Minnesota National Guard troops outside of U.S. territory – established that as a legal issue.

Today, soldiers in the National Guards are dual-enlisted in their State Guards, subject to the military authority of the various state governors, and as reservists in the Armed Forces of the United States, subject to call up for active duty. They can be sent to train or even engage in overseas combat.

On the other hand, current United States law (10 USC, 311b) still defines most male adults in this country as members of the reserve militia.

Finally, the executives of the ACLU of Southern California’s call for abandoning the Second Amendment is a prelude toward general restrictions on popular arms, the sort that might be used against ambitious politicians who seek to impose their elite policies on a recalcitrant public against its will. Considering how little popular support there is for many of the extremist positions taken by ultraliberal supporters of the ACLU of Southern California, it is not difficult to see that a well-armed and likely uncooperative citizenry is an impediment to utopian social engineering which requires docile submission by the public to government officials.

The national office of the ACLU is at least aware that armed police power in this country is dangerous to liberty: they have joined with the NRA and the Second Amendment Foundation in calling for a commission to investigate abuse of power by authorities in cases such as:

  • The raid on the home of California millionaire Donald Scott, whose Malibu home was invaded – and Scott killed while sleepily trying to defend himself from what he thought was burglars – on a trumped up warrant alleging illegal drugs in an attempt to confiscate his estate under asset forfeiture laws;
  • The entrapment of backwoodsman Randy Weaver of Ruby Ridge, Idaho by federal Alcohol, Tobacco, and Firearms agents attempting to blackmail him into spying for them on fellow white supremacists; they tricked him into sawing off a shotgun past the legal limit. His continued refusal led to an FBI sniper murdering his wife (while she held their infant child) and Weaver’s older son. Weaver was tried and acquitted for shooting back in spite of attempts (established by civil-liberties attorney Gerry Spence in Weaver’s trial) by federal officials to falsify evidence. No charges have yet been filed against any federal officials;
  • The invasion and opening of initial gunfire on the law-abiding Branch Davidians in Waco, Texas by ATF agents attempting to draw attention away from a sexual harassment scandal at the agency, and the subsequent burning down of the Branch Davidian complex by FBI-driven tanks collapsing the structure and causing combustion; 81 men, women, and children died in that fire.

With government out of control, is this the time for a civil liberties organization to advocate disempowering the civilian population by disarming them?

Guns in America:

The Statistics:

  • Firearms were used to kill more than 60,000 people in the last two years. Handguns kill 22,000 per year, 60 each day, including 12 children.

And, according to the National Self Defense Survey, firearms saved five million people from criminals in those same two years. That’s 6,849 lives defended by privately owned firearms per day.

  • U.S. civilians own 211 million guns, including 66.7 million handguns.
  • A new handgun is produced every 20 seconds and is used to shoot someone every two minutes.

Yes, and a handgun prevents a criminal attack every 16 seconds.

  • Every day, handguns are used in 33 rapes, 575 robberies, and 1,116 assaults.

According to data from the National Self Defense Survey, of the 1.9 million handgun defenses in one year, about 8 percent of the defensive uses involved a sexual crime such as an attempted sexual assault – 416 handgun defenses per day, or a dozen handgun defenses for each time a handgun is used by a rapist. Twenty-two percent involved robbery – 1145 handgun defenses per day, or twice as many handgun defenses for each time a handgun is used in a robbery. About 29 percent involved some sort of assault other than sexual assault — 1510 per day, or one-and-a-half times as often as handguns are used in non-sexual assaults. It seems the executives of the ACLU of Southern California, if they got their way and succeeded in further restricting handgun availability to the general public, would be making it easier for rapists than the perpetrators of any other crime.

  • In late 1993, a Time Magazine/CNN poll found that 92% of Americans supported the recently passed Brady Bill, which requires a five-day waiting period to buy a handgun.

And reverts to an NRA-backed instant background check after five years.

  • The same poll found that 60% favor even stronger gun-control laws

Which is meaningless, since most people polled have no idea what the current gun control laws are. If you were to poll most Californians (especially those who don’t own a firearm) whether they favor imposing the Brady Law’s five-day waiting period on California, you’d probably get an overwhelming “yes” — from people who aren’t even aware that there has been a fifteen-day waiting period in California since 1975.

  • More than 600,000 guns are sold each year in California alone.

Obviously being purchased by people who think they have the right to keep and bear firearms. Or should only the opinions of elitist executives of the ACLU of Southern California carry political weight?

  • A Seattle-based study concluded that for each example of a gun used in self-defense to kill an intruder, there were 43.9 other gun fatalities. That includes 2.3 incidents of accidental gun deaths, 4.6 criminal homicides, and 37 suicides.

If one compares the National Self Defense Survey’s estimated 1,728,000 gun defenses in or around a home in one year with a conservatively high estimate of gun-related homicides and fatal gun accidents in the home in a year — at most about 8,000 — one can compute that a gun kept in the home for protection is about 216 times as likely to be used in a defense against a criminal than it is to cause the death of an innocent victim in that household.

  • In 1989, 178 justifiable homicides were reported nationwide, but 1600 accidental killings involving guns.

In fact, the number of justifiable homicides in a year are, according to Gary Kleck, closer to 2,800, since FBI crime reports used by statisticians exclude any justifiable or excusable homicide which isn’t labelled that in the initial police report. But even this is likely also an underestimate, since police are reluctant to classify any homicide as “justifiable,” preferring to classify them as either unsolved or accidental.

As far as firearms accidents are concerned, they are down 40% from ten years ago, and down 80% from 50 years ago.

  • Shooting is the leading cause of death among African-American males ages 15 to 24.

No one questions that African-Americans are the worst victims of crime of all kinds – and even the Reverends Jesse Jackson or Louis Farrakhan could not deny that these crimes are being done by young black males. But is this surprising in a culture whose family structure was destroyed by utopian government programs which created a generation of fatherless boys and inner-city government schools that taught a philosophy of dependency on big government rather than self-reliance? Who is historically more responsible for this state of affairs: the more-conservative NRA or the more-liberal ACLU?

  • The Los Angeles County Sheriff’s department recovers 30,000 guns a year during routine criminal investigations of which 6,000 have been legally purchased then stolen.

Are we also going to blame automobile owners when their cars are stolen or carjacked for use in a robbery? Talk about blaming the innocent for the actions of the guilty!

  • Gunshot wounds to children nearly doubled between 1987 and 1990. Firearm murders of young people age 19 and under went up 125% between 1984 and 1990.

This is an odd definition of “children,” which includes 18 and 19 year-old individuals who can serve in the military and on police forces. We must also seriously doubt whether it is firearms that are at fault in the deaths of children who are recruited into criminal gangs even before puberty.

  • Every six hours, a teenager or preteen commits suicide with a gun.

And almost all studies of suicide show no correlation between the availability of any particular means of suicide and the suicide rate. Japan has few guns, yet has twice the U.S. suicide rate. The American Journal of Psychiatry from March, 1990 reported in a study by Rich, Young, Fowler, Wagner, and Black that all gun-suicides which were statistically reduced in the five years following Canada’s handgun restrictions beginning 1976 were substituted 100% by suicides using other methods, mostly jumping off bridges. Therefore, eliminating firearms does not eliminate suicide: it merely shifts the suicide to other causes, and no rational public policy can conclude that the availability of firearms is a causative factor.

  • An estimated 1.2 million elementary school-age latchkey children have access to guns when they are home alone.

Parents who leave their children home alone are morally and legally responsible for what ill befalls their children, whether it is from firearms, or from poison under the sink, or from a box of matches.

  • Most Los Angeles high school students say they could buy a gun on the street in an hour or less if they needed it.

Perhaps they need it. School authorities and police seem singularly unable to protect them from the well-armed gangsters among them.1

  • When firearm suicide and homicide rates in Los Angeles County are combined, the total rate is higher than that for motor vehicle crashes.

And when the suicide and homicide rate in Japan is compared to the United States, it is higher than the combined U.S. rate. Yet Japan has few guns.

[ILLUSTRATION of a shadowy figure holding a handgun menacingly.]

Are the executives of the ACLU of Southern California trying to sell civil liberties, or Argosy Magazine?

  • At least four federal safety standards regulate the manufacture of teddy bears. No federal safety standards apply to the manufacture of guns.

Are they seriously suggesting that guns are inadequately designed to perform their function effectively — which is to fire energy-laden bullets at those who attack the innocent? Firearms are dangerous by necessity. The object is to make them dangerous only to those who need to be, and deserve to be, stopped by them. That is the purpose of firearms safety training — which the NRA was doing fifty years before the ACLU was even formed. I am constantly amazed that people who are afraid to be in the same room with a gun think they know how to tell firearms designers, instructors, and experienced shooters how to make guns safe. The elitist arrogance of those who would run our country seems to be unlimited.

  • In 1993, handguns were used to kill 82 people in Japan, 76 people in Canada, 33 people in great Britain, and 40,000 people in the United States.

End of ACLU materials

Yet, we observe that in the absence of firearms, the Japanese still manage to die at their own hands as often as Americans. As for Canada, its homicide rate compares to that of demographically similar areas of the United States. And each British increase in gun-control has been followed by greater rates of violent crime. Cross-cultural comparisons are largely inappropriate; but when gun control is enacted in a society, there are few if any cases where a lowered crime rate follows locally (as opposed to a general downward trend in a wider area than that affected by the new gun-control law); and there are many cases where increased gun control is followed by increased violent crime. According to Randall Herrst, J.D., of the Firearms Education Institute, this is so well-established that he argues the only case for gun-control laws is as a social measure designed to increase violent crime.

The last paragraph from the ACLU brochure is, incidentally, copied from the literature of Handgun Control, Inc. Are liberal pocketbooks getting so tight that the ACLU of Southern California must compete for contributions against Sarah Brady?

— J.Neil Schulman


1. The Los Angeles Times of February 20, 1994 reports in a story titled “Violence on School Campus Eludes Solutions,” “[The Los Angeles Unified School District] has expelled a record number of students for bringing guns and knives on campus and has begun using metal detectors to search students for weapons. But students continue to bring weapons to school in large numbers. Supt. Sid Thompson acknowledges that school officials remain unable to ensure the safety of the district’s 640,000 students. … The problem has escalated so high that many students believe they must arm themselves for protection and there is little shock at seeing a weapon on campus, said school district police chief Wes Mitchell. ‘It has become an informal social norm that kids need to protect themselves, so why not carry the tools to protect themselves?’ said Mitchell, who added that the district should provide more education about guns and violence.”

Note: The 2008 Supreme Court decision in District of Columbia v. Heller has been a game-changer in that the decision firmly established the right to keep and bear arms as an individual right, rather than a collective right of state militias. — JNS, May 14, 2010


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