Posted by
Rhudd Draigiau on Wednesday, June 11, 2008 3:00:00 PM
The following was published as a Guest Viewpoint in the Binghamton, NY Press & Sun-Bulletin on June 9, 2008.
Gun advocates ignore meaning of 'bearing arms' through history
The Second Amendment to the Constitution of the United States says: "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."
This is to give a little insight into this matter which is so blatantly misinterpreted by the "Blathering Class" and other "federal authority" opponents. In the United States, the meaning of "bear arms" is a matter of recent dispute and political debate. One argument is whether the right to "bear arms" relates to the right of an individual to have arms, or whether it relates to a military service meaning, as with the functioning and maintenance of a militia, which is the introductory portion of the amendment.
Many historians have published peer-reviewed research which shows that prior to and through the 18th century, usage of the expression "bear arms" referred to the profession of military service, as opposed to the use of firearms by civilians.
In late-18th century parlance, bearing arms was a term of art with an obvious military and legal connotation. A review of the Library of Congress' database of congressional proceedings in the revolutionary and early national periods reveals the 30 uses of "bear arms" and "bearing arms" in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.
As an example, the expression "bear arms" is contained in the Declaration of Independence in the sense of military service on a warship, as part of an indictment of the king of Great Britain for conscripting colonial sailors to serve on British warships: "He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands."
For those who maintain that every able-bodied man in the country is a member of the "militia," check Article 1 Section 8 of the Constitution, which provides explicit authority and character for the Militia: "The Congress shall have 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 Congress."
Historical Background
It is quite obvious that the author is highly biased against gun owners – those he calls the "Blathering Class" and other “federal authority” opponents. I would also guess that he does not understand the meaning of "federal." Advocates of private gun ownership are typically conservatives who support federalism – the division of authority between the federal, or national, government and state governments.
His historical understanding of the issue is decidedly lacking. He states that “[m]any historians have published peer-reviewed research” but fails to mention any of them as reference. He refers to the debates of the Continental, Confederation, and the United States’ Congresses [sic] between 1774 and 1821 but it is obvious that he hasn’t bothered to read them. The quotation from the Declaration of Independence has absolutely no relevance to the 2nd Amendment; it deals with the status of prisoners of war – the first thing a military force would do when capturing an enemy combatant is to disarm him.
Let’s look at some of the historical background of the 2nd Amendment. The first place to start is with James Madison – the Father of the Bill of Rights. Madison authored the Bill of Rights and then proposed them to Congress. His wording for the 2nd Amendment was “The 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.”1 He makes it quite clear that the right to keep and bear arms was not predicated on an established militia; notice that the first clause is separated from the rest by a semicolon meaning that it stands on its own, it is not dependent on the rest of the sentence. He also states that no person who bears arms can be compelled to render military service. I should point out that until the Civil War, standing state militias were rare, mostly the southern states had militias to maintain public order and capture escaped slaves; the inadequacies of the state militias during the War of 1812 lead to the establishment of a standing federal army. Besides, pre-Civil War state militias did not provide weapons to soldiers or training in their use, they had to provide their own and were expected to know how to use them.
Next, it would do well to actually refer to the Congressional debates that the author mentions. The following is from the Senate Journal of September 9, 1789: "A well regulated militia being the security of a free state, the right of the people to keep and bear arms for the common defence, shall not be infringed."2 This wording would have restricted the keeping and bearing of arms to members of a militia. The Senate rejected this wording in favor of the wording as it is now.
Court Cases
United States v. Miller, 307 U.S. 174 (1939)3 – This was the first 2nd Amendment case heard by the U.S. Supreme Court. Miller had been convicted of transporting an unregistered sawed-off shotgun. Part of the ruling reads “In the absence of any evidence tending to show that possession or use of a "shot gun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” While the court did not address the meaning of the 2nd Amendment, it held that a sawed-off shotgun was not a typical weapon in a militia. The court also emphasized that when men were called for service, they were expected to provide their own arms. This ruling governed the type of weapon, not the right (and duty) to keep and bear arms.
There have been a few other cases that cite U.S. v. Miller: Lewis v. United States, 445 U.S. 55, 65 n.8 (1980); Silveira v. Lockyer, 312 F.3d 1052, 1061 (9th Cir. 2003); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977).
United States v Emerson (2001) of the 5th Circuit4 - this case stated that “the 2nd Amendment protects the right of individuals to privately keep and bear arms... regardless of whether the particular individual is then actually a member of a militia.” This is an obvious affirmation that the 2nd Amendment provides for an individual right to keep and bear arms.
Further Reading
An excellent discussion of the 2nm Amendment is the Memorandum Opinion for the Attorney General, Whether the Second Amendment Secures an Individual Right5