GAZETTE COLUMN: THE PRIVATE RIGHT TO BEAR ARMS - NONSENSE by John P. Flannery

NRA's Wayne LaPierre

THE PRIVATE RIGHT TO BEAR ARMS – NONSENSE

By John P. Flannery II

“The notion that registering gun purchases somehow violates the Constitution is unmitigated nonsense,” so said former Supreme Court Justice Warren Burger.  He also said that “[n]othing outrages me more than the conduct of the National Rifle Association (‘NRA’).” 

Former NRA Vice President Neal Knox once said that the assassinations of President Kennedy and Martin Luther King Jr. were possibly “part of a conspiracy to enact gun control” and “could have been created for the purpose of disarming the people of the free world.”   This past week, the NRA has eclipsed its ordinary standard for bad taste by attacking the President’s children, asking why the federal government provides them Secret Service protection but not other children in our public schools.  Anyone want to suggest a distinction that the NRA might understand?

Our public discussion might improve, among the rest of us, exclusive of the NRA leadership, if we got some of the facts right -- like what the Second Amendment actually says and what it truly meant when it was written. 

When the Declaration of Independence was written in 1776, our colonies were concerned about “standing armies” because the King had “kept among us, in times of peace, standing armies, without the consent of our legislatures.” 

When we had won our Independence and we had to concern ourselves with self-government under the Articles of Confederation, Revolutionary War Veterans led by Captain Dan Shays demanded cheap paper money, lighter taxes and the suspension of bank foreclosures of their farms.  They were going to close down the courts foreclosing on their property.  Massachusetts raised a militia to put down Shays’ rebellion and open the courts.

The Shays’ Rebellion became a part of the rationale for retired General George Washington and his aide, Alexander Hamilton, proposing a stronger federal government.  The resulting U.S. Constitution, in Article I, Section 8, clauses 15 and 16, said that the state militias going forward would respond to Congress’ call “to execute the laws of the Union, suppress insurrections and repel invasions,” and Congress would provide for “organizing, arming and disciplining the militia” reserving certain rights to the states.

The States, however, remained concerned about a “standing army.”  Colonel George Mason wished that the constitutional plan “had been prefaced with a Bill of Rights.”  He got his way and the so-called Military Amendments in the resulting Bill of Rights were the 2^nd and 3^rd Amendments, with the 3^rd Amendment prohibiting the quartering of troops and the 2^nd providing for “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 States were thus empowered to do exactly what they had done at Lexington and Concord.  It was a collective right, not a personal right to bear arms, and for a certain well-defined purpose, stated in the Constitution and the Bill of Rights. 

In United States v. Cruikshank, in 1875, a plaintiff charged citizens had been deprived of their constitutional right to bear arms, and the U.S. Supreme Court found that “[t]his is not a right granted by the Constitution,” and that this Second Amendment right “has no other effect than to restrict the powers of the national government.”

In 1934, in United States v. Miller, the U.S. Supreme Court rejected a constitutional challenge to the National Firearms Act regulating the transfer of firearms and imposing a transfer tax, concluding that the weapons at issue lacked “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”

Actually, as a result of the National Defense Act of 1916, the “militia” has since been supplanted by the National Guard, and that same Act transformed the militia from an individual state service into a division of the United States Army, rendering the Second Amendment somewhat irrelevant as originally contemplated.

There was a 2008 U.S. Supreme Court decision, District of Columbia v. Heller, that struck down DC’s strict gun-control law but most agree that decision was less than meets the eye.  500 or more challenges to gun laws since have been defeated.      

Former Justice Justice Paul Stevens, who dissented in the Heller decision, reportedly said that, even if you “generously” construe Heller, “the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.”

He also made a pointed observation about Congress: “The failure of congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.”

Congress has failed to act.  The NRA may be fine with that.  But are you?