The Washington Post has a front page story saying that the Second Amendment had always been construed to refer to a “collective” right to own firearms on the part of state militias until 2008 when the Supreme Court ruled that it refers to an “individual” right. This change in interpretation, the article contends, was because the NRA nefariously funded legal research that supported its novel position.
I think that argument is absurd. Read the gist of it after the jump. But then I’d like to discuss the “militia” part of the 2nd Amendment. Since the Constitution says that “a well regulated Militia [is] necessary to the security of a free State,” shouldn’t we have a well regulated militia, as opposed to a standing army?
By Peter Finn:
In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.
“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”
More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.
As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the NRA.
For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.
For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship has been a mark of its strategic, patient advocacy.
“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl T. Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”
The Second Amendment states: “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.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.
“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not individuals, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.
At any rate, what should we do with the “militia” part of the 2nd Amendment? A militia is not the same as National Guard units, which, while answerable to a governor are still part of the national military system. In a militia, ordinary citizens–who kept weapons in their homes–were organized for local defense as needed, whether to fight off Indian attacks or fight in a national war. In fact, most of the military power of the United States for much of our history was not in a standing army but in individual state units. (Thus, the Civil War was waged by units like the 7th Illinois Volunteer Infantry Regiment and the 1st Virginia Brigade.)
If we are really going to follow the Constitution, should we switch back to a decentralized militia model for our defense needs, rather than the massive standing military establishment that we have today?