FABLE II: The Second Amendment to the Constitution does not protect an individual right to keep and bear arms.

(www.NRA.org) 

"If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis." 1

Anyone familiar with the principles upon which this country was founded and upon which it has operated for the last two centuries will recognize this claim's most glaring flaw: In America, rights, by definition, belong to individuals.

In the Declaration of Independence, Thomas Jefferson wrote that "all men are created equal" and "are endowed by their Creator with certain unalienable rights," while governments derive their "powers" from the consent of the governed. The Constitution and Bill of Rights repeatedly refer to the "rights" of the people and to the "powers" of government.

In each case, rights belonging to "the people" are undeniably the rights of individuals. As the Supreme Court recognized in U.S. v. Verdugo-Urquidez (1990), "'the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.'. . . It suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

Future U.S. President James Madison introduced in the House of Representatives the amendments that became our Bill of Rights. In notes for his speech proposing the amendments, Madison wrote that "They relate first to private rights." Several days later, William Grayson wrote to Patrick Henry, telling him that "[A] string of amendments were presented to the lower House; these altogether respected personal liberty."2 A week later, Tench Coxe referred to the Second Amendment in the Federal Gazette, writing that "the people are confirmed by the next article in their right to keep and bear their private arms."3 Samuel Adams warned that "The said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."4

Dozens of essays have been written by the nation's foremost authorities on the Constitution, supporting the traditional understanding of the right to arms as an individually possessed right, protected by the Second Amendment.

For example, Prof. Akil Reed Amar of the Yale Law School and Alan Hirsch, like Amar a former Yale Law Journal editor, wrote: "We recall that the Framers' militia was not an elite fighting force but the entire citizenry of the time: all able-bodied adult white males. Since the Second Amendment explicitly declares that its purpose is to preserve a well-regulated militia, the right to bear arms was universal in scope. The vision animating the amendment was nothing less than popular sovereignty--applied in the military realm. The Framers recognized that self-government requires the People's access to bullets as well as ballots. The armed citizenry (militia) was expected to protect against not only foreign enemies, but also a potentially tyrannical federal government. In short, the right to bear arms was intended to ensure that our government remained in the hands of the People." 5

By contrast, only a few law journal articles advocating the anti-firearm groups' view have appeared, most written by those groups' employees. (A bibliography of Second Amendment-related books, law reviews and other published works is available at www.nraila.org and from the NRA-ILA Grassroots Division.)

Gun control supporters insist that "the right of the people" really means the "right of the state" to maintain the "militia" mentioned in the amendment, and that this "militia" is the National Guard.

Such a claim is not only inconsistent with the statements of America's early statesmen and the concept of individual rights as understood by generations of Americans, it misdefines the term "militia."

For centuries before the drafting of the Second Amendment, European political writers used the term "well regulated militia" to refer to the citizenry on the whole, armed with privately-owned weapons, led by officers chosen by themselves.

America's statesmen defined the militia the same way. Richard Henry Lee (who before ratification of the Constitution was the author of the most influential writings advocating a Bill of Rights) wrote, "A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . . To preserve liberty it is essential that the whole body of people always possess arms. . . ."6 Making the same point, Tench Coxe wrote that the militia "are in fact the effective part of the people at large."7 George Mason asked, "[W]ho are the militia? They consist now of the whole people, except a few public officers."8

The Militia Act of 1792, adopted the year after the Second Amendment was ratified, declared that the Militia of the United States (members of the militia obligated to serve if called upon by the government) included all able-bodied males of age. As the U.S. Supreme Court observed in U.S. v. Miller (1939), "The signification attributed to the term Militia appears from the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense . . . bearing arms supplied by themselves and of the kind in common use at the time." The National Guard was not established until 1903. In 1920 it was designated one part of the "Militia of the United States," the other part remaining all other able-bodied males of age, plus some other males and females.

However, in 1990, in Perpich v. Department of Defense, the Supreme Court held that the federal government possesses absolute, unlimited power over the Guard. (The Court never mentioned the Second Amendment, noting instead that federal power over the Guard is not restricted by the Constitution's Article I, Section 8, Clauses 15 and 16.)

Thus, the Guard is in fact the third component of the United States Army, behind the Army and Army Reserve. The Framers' independent "well regulated militia" remains as they intended, America's armed citizenry.

The most thorough examination of the Second Amendment and related issues ever undertaken by a court is the Oct. 16, 2001, decision of the U.S. Court of Appeals for Fifth Circuit in U.S. v. Emerson, a case that centers around an individual indicted for possessing firearms while under a certain kind of restraining order, in violation of federal law.

The court upheld the indictment against Emerson, noting that restrictions on the right to arms are permissible if they are "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."

The court then devoted dozens of pages of its decision to a comprehensive examination of the Second Amendment's history and text, and court decisions and scholarship on the amendment and related issues. It began with an examination of the Supreme Court's decision in U.S. v. Miller (1939), which individual rights opponents commonly claim supports the notion of the Second Amendment protecting only a "collective right" of a state to maintain a militia, or a "sophisticated collective right" of a person to keep and bear arms only when in service with such a militia. The Fifth Circuit disagreed. "We conclude that Miller does not support the [Clinton Administration's] collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position."

The court then turned to the history and text of the Second Amendment. "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words 'the people' have precisely the same meaning within the Second Amendment as without. And as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'"

The court concluded, "We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training. We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it [the amendment] protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms."

More recently, the U.S. Department of Justice officially adopted the historically correct interpretation that the Second Amendment guarantees an individual right. In briefs filed May 6, 2002, with the U.S. Supreme Court, Solicitor General Theodore B. Olson wrote that the position of the United States is that "the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms."