from the Congress Action newsletter

Constitutional Confusion

by: Kim Weissman
June 23, 2002

Last week the Supreme Court refused to hear, and thus refused to overturn, the appeals of two Second Amendment cases: U.S. v. Emerson from the Fifth Circuit Court of Appeals; and U.S. v. Haney from the Tenth Circuit Court of Appeals. But the Fifth and Tenth Circuit Courts directly contradict each other, and a conflict between Circuits is a primary reason for the Supreme Court to hear appeals and resolve the conflict. However, instead of forthrightly addressing the issues, the Supreme Court hid their collective heads in the sand.

In U.S. v. Emerson the Fifth Circuit held:

"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it 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, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller."

This Constitutional right, as with all others, is not absolute. As Justice Oliver Wendell Holmes famously wrote in 1919, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." The Second Amendment, said the Emerson Court, is subject to "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."

In it's analysis of U.S. v. Miller (1939), the Emerson Court wrote,

"Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units. We conclude that Miller does not support the government'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."  

Emerson was the gun banners' worst nightmare. And when the Solicitor General of the United States filed his brief in the Supreme Court supporting the Emerson Court's individual-right position, gun banners went completely nuts. The president of the Brady Center to Prevent Gun Violence pontificated, "This action is proof positive that the worst fears about Atty. Gen. Ashcroft have come true: His extreme ideology on guns has now become government policy" (it was Solicitor General Ted Olson who filed the Supreme Court brief, not Attorney General John Ashcroft, but when leftists engage in hate-mongering, the truth is irrelevant, and John Ashcroft is a much preferred target for their hate than Ted Olson). But now we come to the conflict that the Supreme Court refused to resolve.

In U.S. v. Haney, the defendant argued that the federal government lacks the authority to require him to get a license for his machineguns because of the Second Amendment. The Tenth Circuit in Haney wrote:

"…we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment. This reading is also consistent with the overwhelming weight of authority from the other circuits."

To be protected by the Second Amendment, Haney would have to show

"that (1) he is part of a state militia; (2) the militia, and his participation therein, is 'well regulated' by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service." The Court concluded that "The militia of the Second Amendment is a governmental organization".

The Haney Court also analyzed Miller, and wrote,

"The purpose of the second amendment…was to preserve the effectiveness and assure the continuation of the state militia. The [Miller] Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's [Haney's] membership in 'Posse Comitatus', an apparently nongovernmental organization."

According to Emerson, the Second Amendment protects an individual's right to keep and bear arms, regardless of any connection that individual may have with a government organization designated as a "militia". And the Miller case stood for the proposition that the "militia" referred to in the Second Amendment included all "civilian male inhabitants throughout their lives from teenage years until old age". But according to the Haney Court, the Second Amendment does not protect an individual's right to keep and bear arms, unless that individual is directly connected to a government organization that can be designated as a "militia".

As a sign of the confusion, look at the reactions from both sides of the debate: The National Rifle Association said they were not disappointed by the Supreme Court's inaction, because "our client is the Second Amendment", not the individual defendants (whose convictions were upheld). A Violence Policy Center press release claims this is "a victory for public safety and security and a defeat for the National Rifle Association and gun criminals".

With the Supreme Court shirking its responsibility, it remains (as it always ultimately is) the duty of this nation's final authority — We, the People of the United States — to decide the meaning of the Constitution.

In 1823 Thomas Jefferson wrote to Supreme Court Justice William Johnson,

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."

That only makes sense — What did those who actually wrote it, debated it, and ratified it, intend?

The Second Amendment reads, "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 crux of the debate has always centered on the import of the phrase "a well regulated Militia". Does the phrase qualify "the right of the people" so that right can only be exercised within the context of "a well regulated Militia"? Or is the "well regulated Militia" phrase merely a statement of the reason why "the right of the people…shall not be infringed"? And just what is "a well regulated Militia", anyway? Is it strictly a governmental organization such as the National Guard (as the collective rights advocates contend, even though the National Guard was not even created until more than a century after the Bill of Rights was ratified). Or does the militia consist of all citizens (as the individual rights advocates contend, consistent with what that term meant at the time the Bill of Rights was ratified)?

The Founders in fact did define what they meant by "militia", and their meaning was the definition adopted by the Emerson Court.

Thomas Paine wrote, " this country, every man is a militia-man...";
Patrick Henry observed that the militia "consist now of the whole people";
Samuel Adams said "The Militia is composed of free citizens";
and George Mason defined "a well-regulated militia, composed of the body of the people trained to arms".
And significantly, Thomas Jefferson expected "…every militia-man to provide himself with the arms usual in the regular service."

The First Militia Act in the First Congress in 1790 proposed that the government supply arms to those who could not afford to buy their own, and there was no provision for these arms to be returned to the government after use. This was perfectly logical to the Founders, because the purpose for an armed citizenry was not only to repel foreign invasion, but also so that they would be "prepared to resist tyranny and usurpation" — that is, prepared to resist tyranny and usurpation by their own government.

So "let us carry ourselves back to the time when the Constitution was adopted" and see what the Founders had in mind.

There are portions of the Constitution that aren't as clear as many would like, and about which the Founders left little or no guidance. But when their meaning and intent is absolutely clear, then attempts by present-day scholars to redefine that meaning by telling us, 200 years after the fact, what they think that the Founders might have meant, is irrelevant hubris.

It is simple common sense that the best authority as to the true meaning of any particular document or text is the person who actually wrote it, and those who debated it and who then decided to adopt it based on that understanding. We can also dismiss the tactic of those who would destroy the Constitution altogether by claiming that the Constitution is a "living" or "evolving" document that magically transmutes itself to fit changing circumstances. Supreme Court Justice Scalia pointed out one of the many fatal flaws in that idea: "What is it that the judge must consult to determine when, and in what direction, evolution has occurred? Is it the will of the majority, discerned from newspapers, radio talk shows, public-opinion polls, and chats at the country club? If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority."

Contrary to popular misconception, our country is not a democracy, and majority rule does not define the legitimate parameters of Constitutional conduct in a Constitutional republic such as ours. James Madison saw the Constitution and the Bill of Rights as codifying a "will in the community independent of the majority", documents that would protect the rights of the minority against the tyranny of the majority, and which would "counteract the impulses of interest and passion" of the majority.

To change the will in the community requires more than acceding to whatever a majority (or a vocal minority that controls the outlets of public information, as in the area of gun control) finds currently fashionable, and certainly requires more than imposing "the impulses of interest and passion" of a single judge. To change the will of the community as embodied in the Constitution and the Bill of Rights requires far more, as established by the Article 5 amendment process. George Washington said,

"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

What does the Second Amendment mean? The Emerson Court did a thorough analysis of the historic sources, and its decision is well worth reading in full. What the Founders said, what was debated in Congress and the States during ratification, and contemporary commentary, are available at the link on this newsletter's home page.

The Founders made it absolutely clear that private individuals had the right to possess and bear their own firearms, regardless of any connection with any governmental organization. They codified this belief in the Bill of Rights.

Equally important, there was absolutely no contrary opinion at the time. The idea that the people who had just fought a revolution largely with their own arms, would ratify a new Constitution, and would demand a Bill of Rights for additional protection of their individual rights, with the understanding that they were allowing the new federal government to disarm them any time it chose to do so, is absurd on its face. Our Supreme Court did this nation a serious disservice by not making that clear.

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U.S. v. Emerson:

U.S. v. Miller:

The Second Amendment intent of the Founders: 

The Second Amendment Foundation's coverage and analysis of the Emerson case:

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

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24 jun 2002