]]]]]]]]]]]]]]]        THE RIGHT TO BEAR ARMS?       [[[[[[[[[[[[[[[[
                        By Freeman 94112GARR              (4/22/1989)


        "The Constitution DOES NOT allow for us to officially
        'bear arms.'  If I recall, Amendment #2, states that
         the Militia has the right, not the common citizens."
                        - Howard Lew -                          
                         
  Howard, you've touched on THE issue involved in every modern court
decision concerning the right to keep arms.  Your paraphrase fits
comfortably within the modern mainstream interpretation of the 2nd
Amendment.  And, if I may be allowed a touch of whimsy, you're correct: 
correct that it IS the modern interpretation.  Nevertheless, that
interpretation is wrong on several counts.

        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.

  That's the amendment.  It has been distorted to mean the following:
 
        The right to bear arms belongs to the state.  Since
        the state must defend itself, it is the state, via
        the militia, that has this right to arms; not the
        individual citizen.  The state may choose to allow
        its citizens to keep certain arms.  But the state
        reserves to itself the sole right to arms.

  In the first place that is neither what the amendment says nor
intended.  Note the curious use of "militia" rather than army.  Why
militia, Howard?  Because the militia was an organization of citizen-
volunteers.  The amendment was the recognition that free citizens who
volunteered their services to the defense of the state must, of
necessity, be guaranteed the right to keep arms.  (Parenthetically, note
that nowhere in the Constitution is there a provision for conscription. 
Indeed the illegitimacy of a draft is implicit in the 13th amendment's
prohibition of "involuntary servitude".)

  The authors of the Constitution were only too well aware that the real
threat to freedom was the state itself.  Despite the experience of
Articles of Confederation, the very nature of the Constitution is such as
to provide as many checks against the possible abuse of state power as
the mind of man could devise.  Their fear was state tyranny.  And since
the federal state would be granted the power to maintain a standing army,
ensuring the right of the citizen to bear arms was but another check on
the power of the state.  For the threat of an armed citizenry would give
pause to any potential tyrant.  Disarm the citizens and you remove a
counterweight.  Furthermore, the principle that a people have the right,
in extremis, to use armed insurrection to overthrow an unjust government
is affirmed in the Declaration of Independence:  "That whenever any Form
of Government becomes destructive of these ends it is the Right of the
People to alter or abolish it. . .. "  But to alter or abolish may
require the use of arms.  You don't fight a revolution without weapons. 
In explicitly protecting the citizens' right to bear arms, the founding
fathers were ensuring that, should it become necessary, the means to
overturn such a state would remain in the hands of free individuals.  It
is also worth noting that the importance of the right to bear arms is
SECOND only to freedom of speech and religion.

  In defending the modern interpretation, both the courts and gun
opponents have used the language structure of the amendment to
misrepresent it.  The amendment follows a grammatical style not uncommon
to the time though unusual to the modern ear; a style, eg., used by the
writers of the Federalist Papers.  The subordinate clause, and its
parenthetical, precede the main clause.  The structure's style is: 
"Since A, therefore B".  Put the main clause first, and the following is
an exact, if more modern sounding, statement of the same principle:

        The right of the people to keep and bear arms shall
        not be infringed, [as] a well regulated militia [is]
        necessary to the security of a free State.

  Finally, and most egregiously, your statement ". . . the Militia has
the right, not the common citizens" has put the philosophical cart before
the horse.  Neither the state nor its agency, the Militia, has ANY
"rights."  Only individual possess rights.  This small point was the
foundation of the American Revolution and the political well-spring of
the Bill of Rights.

        The right of the people peaceably to assemble. . .
        the right of the people to be secure. . . the accused
        shall enjoy the right. . . the enumeration in the
        Constitution, of certain rights, shall not be
        construed to deny or disparage others retained by the
        people.
  
  And, if the enumeration of individual rights were not sufficient to
make the point, the language of the 10th amendment drives it home:  "The
powers not delegated to the United States. . .. "  Powers, not rights. 
Every legitimate power delegated to the government depends for its
justification on the antecedent rights of the individual.  The
government's power to maintain an army is only the extension of the
individual's right to bear arms.
                                -==-
]
                            *      *       *

**********      Continued 4/30:  ******************

  In a letter to the Wall Street Journal (April 27, 1989) Mitchell R. Miller
writes that "The Constitution is quite clear that the right to bear arms exists
only in the context of a militia."  And, with an Olympian leap, he reaches the
conclusion that the amendment means "regulation is not infringement. . ."  

  Certainly, his position fits comfortably within the modern mainstream
interpretation of the 2nd Amendment.  And, if I may be allowed a touch of
whimsy, he's correct:  correct that it IS the modern interpretation. 
Nevertheless, that interpretation is wrong on several counts.

        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.

  That's the amendment.  It has been represented to mean something like the
following:
 
The Right of arms belongs to the state.  Since the
state must defend itself and its citizens, it alone
possesses this right; not the individual citizen. 
The state may choose to grant its citizens the
privilege to keep arms under certain conditions.  But
it reserves to itself the sole right to arms.

  In the first place that is neither what the amendment says nor intended. 
Note the curious use of "militia" rather than army.  Why militia, Mitchell? 
Because the militia was an organization of citizen-volunteers.  The amendment
recognizes that free citizens who volunteered their services to the defense of
the state must, of necessity, be guaranteed the right to keep arms.
(Parenthetically, note that nowhere in the Constitution is there a provision
for conscription.  Indeed, the illegitimacy of a draft is implicit in the 13th
amendment's prohibition of "involuntary servitude".)

  The authors of the Constitution were only too well aware that the real threat
to freedom lay in the power of the state itself.  Despite the experience of the
Articles of Confederation, the very nature of the Constitution is such as to
provide as many checks against the possible abuse of state power as the mind of
man could devise.  Their fear was state tyranny.  And since the federal state
would be granted the power to maintain a standing army, ensuring the right of
the citizen to bear arms was but another check on the power of the state.  For
the threat of an armed citizenry would give pause to any potential tyrant. 
Disarm the citizens and you remove an important restrain on state power. (Since
the federal government was granted the power to maintain an army and navy, why
the need for militia?  Because volunteer state militia extended the
individual's check on the federal government.  In a letter to Humphreys in
1789, Jefferson writes:  "There are instruments so dangerous to the rights of
the nation, and which place them so totally at the mercy of their governors,
that those governors, whether legislative or executive, should be restrained
from keeping such instruments on foot, but in well-defined cases.  Such an
instrument is a standing army.")   Furthermore, the principle that a people
have the right, in extremis, to use armed insurrection to overthrow an unjust
government is affirmed in the Declaration of Independence:  "That whenever any
Form of Government becomes destructive of these ends it is the Right of the
People to alter or abolish it. . .. "  But to alter or abolish may require the
use of arms.  You don't fight a revolution without weapons.  In explicitly
protecting the citizens' right to bear arms, the founding fathers were ensuring
that, should it become necessary, the means to overturn such a state would
remain in the hands of free men.)  It is also worth noting that the importance
of the right to bear arms is SECOND only to freedom of speech and religion.

  In defending the modern interpretation that the right of arms belongs to the
state which it may, under restrictive conditions, grant to its citizens, both
the courts and gun opponents have used the language structure of the amendment
to misrepresent it.  The amendment follows a grammatical style not uncommon to
the time though unusual to the modern ear; a style, eg., used by the writers of
the Federalist Papers.  The subordinate clause, and its parenthetical, precede
the main clause.  The structure's style is:  "Since A, therefore B".  Put the
main clause first, and the following is an exact, if more modern sounding,
statement of the same principle:

        The right of the people to keep and bear arms shall
        not be infringed, [as] a well regulated militia [is]
        necessary to the security of a free State.

  Without a militia the 13 free states (solely or in their union) would be
subject to the threat or use of force by any potential invader.  A trained
organized group of citizens willing to volunteer their service in defense of a
free state is essential to its existence.

  Mr. Miller notes that Article I, Section 8 provides "for congress to regulate
the militia."  Well kinda; it depends on what you mean by "regulate".  Article
I, Section 8 grants Congress the power "To provide for organizing, arming, and
disciplining the militia, and for governing such part of them as may be
employed in the service of the United States, reserving to the States
respectively, the appointment of the officers and the authority of training the
militia according to the discipline prescribed by the Congress."  That this in
someway suggests a restriction on a citizen's right to keep arms doth bring
forth a smile.  In a letter to Wm. S. Smith in 1789 Jefferson writes:  "And
what country can preserve its liberties, if its rulers are not warned from time
to time, that this people preserve the spirit of resistance?  Let them take
arms."

  Finally, but of utmost import, it must be remembered that neither the state
nor its agency, the Militia, has ANY "rights", only delegated powers whose
ultimate purpose is the protection of the rights of individuals.  Only
individual possess rights.  This small point was the foundation of the American
Revolution and the political well-spring of the Bill of Rights.

        The right of the people peaceably to assemble. . .
        the right of the people to be secure. . . the accused
        shall enjoy the right. . . the enumeration in the
        Constitution, of certain rights, shall not be
        construed to deny or disparage others retained by the
        people.
  
And, if the enumeration of individual rights were not sufficient to make the
point, the language of the 10th amendment drives it home:  "The powers not
delegated to the United States. . .. "  Powers, not rights.  Every legitimate
power delegated to the government depends for its justification on the
antecedent rights of the individual.  The government's 8'wer to maintain an
army is only the extension of the individual's right to bear arms.

Lester S. Garrett
San Francisco, CA

                           *      *      *


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