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To End the Gun Terror, End the Second Amendment Hoax

THE BALTIMORE SUN

Now that our troops in Somalia are helping to clear the gunmen from the streets of Mogadishu, can't we Americans here at home do something to lift the gun terror from our schools, playgrounds, parking lots, malls, post offices, housing projects, highways and the grim reaches of our cities where the police must risk their lives to uphold the law?

Of course we can. What we have to do now is to free ourselves from one of the great hoaxes of the 20th century.

This mighty country stands paralyzed in the face of an ever-spreading plague of guns. This national calamity we owe to the leaders of the National Rifle Association in Washington. With a tenacity and ferocity worthy of a better cause, they have fought every proposal, however moderate, to bring the menace under control.

In this endeavor, their principal weapon has been the Second Amendment to the Constitution -- or, rather, their version of the Second Amendment.

That amendment, they have insisted, gives everyone an absolute constitutional right to have every kind of firearm. Brandishing that "right," spending millions in lobbying and legal maneuvers and threatening doom to politicians who would oppose them, they have killed or stalled gun control initiatives in Congress, state legislatures and city governments.

At last, however, the nation is on the move.

In April, the citizens of New Jersey rose in their wrath and beat back an attempt by the NRA to repeal the state's ban on assault weapons. In California, where the legislature had passed a similar law in defiance of the NRA, the U.S. Court of Appeals rejected a constitutional challenge by the NRA, and the law stayed on the books. And in Virginia, which had been a wholesale source of supply for East Coast gunrunners, the governor and legislature stood up to an assault by the NRA and limited gun purchases to one a month.

Now the great Second Amendment hoax can be nailed once and for all if the rank-and-file of the NRA and other responsible citizens will master one simple truth: The Second Amendment means what the courts say it means. It does not mean what the NRA leaders have been telling the nation all these years.

The amendment 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."

The NRA's way with this amendment is to cross out the first clause about a "well-regulated militia" and quote only the second clause about "the right of the people." This truncated version certainly sounds like an ironclad constitutional guarantee.

And it is a version the NRA has used effectively in congressional hearings, state legislatures, local governing bodies and television broadcasts by the renowned constitutional authority Charlton Heston.

But what do the courts say?

The United States Code Annotated, which catalogs federal court opinions, carries summaries of 90 Second Amendment cases decided by the courts from 1886 to 1992. Not one of these 90 cases gives even a shadow of support to the NRA contention that every Tom, Dick and Harriet has a constitutional right to have firearms.

The classic case is United States vs. Miller, which was decided by the Supreme Court in 1939. Jack Miller and Frank Layton were indicted in Arkansas for transporting across the state lines TC a shotgun with a barrel less than 18 inches in length without having registered it and paid a tax as required by the National Firearms Act of 1934. In their defense before the Supreme Court, they argued that their prosecution was a violation of their Second Amendment right to keep and bear arms.

The court's opinion was delivered by Justice James C. McReynolds, who was no bubble-headed liberal but the strictest of strict constructionists. Justice McReynolds said that a sawed-off shotgun was no weapon for a militia and therefore the amendment did not guarantee the right to keep such a weapon.

Justice McReynolds went on to explain the origins of the amendment and its real purpose. The early citizens of this country, having suffered from a British army of occupation, did not want their new federal government to have a standing army. A consensus therefore developed that the defense of the states and the nation should be left to the state militias.

Accordingly, the 13 states passed laws requiring able-bodied men of military age, ranging from 16 to 50 years, to equip themselves with muskets and ammunition of standard specifications for service in the militia. In times of danger, such as an Indian uprising, a British or Spanish incursion on the frontiers or a domestic insurrection, the militias so equipped could be quickly rallied for defense.

This is the key to the amendment. It simply banned the national government from interfering with the state militias. The Americans of that time were wary of the concentration of power in the federal establishment.

Just as the First Amendment forbade Congress to interfere with freedom of speech, press, religion and assembly, the Second forbade the government to interfere with the state militias and the right of their male citizens to keep muskets for militia service.

This was a very narrow purpose. As the federal courts have since emphasized, there was nothing in the amendment to keep national, state or local governments from regulating the manufacture, sale and distribution of firearms.

And none of the 90 decisions says that individual Americans have a right to own any kind of gun they choose.

Thus, as retired Chief Justice Warren Burger has said, the NRA version of the amendment is a "lie." Call it a lie or call it a hoax, its damage to the American people is incalculable. For it has been used to rouse the NRA members and other decent Americans to oppose even the most elemental safeguards for our children, public places and police. And so it has contributed to the deaths of 33,000 Americans by gunfire each year and raised a pall of fear over communities across the land.

Now, if there is no constitutional right to keep firearms, can government agents come into our homes and seize our guns? The NRA leaders have been fanning that fear with hysterical denunciations of "gun-grabbers." These sinister figures include everyone who wants to do anything about guns. When President Clinton said he would sign the Brady Bill, which merely imposes a seven-day wait for a handgun purchase, he was quickly brand a "gun-grabber."

This childish name-calling is, of course, nonsense. Given the long tradition of gun ownership in this country, sportsmen, bona fide gun collectors and law-abiding householders will continue to be undisturbed in their possession of firearms. No politician who values his job would dare challenge this tradition.

But what about the millions of other firearms that saturate the country? With the great hoax disposed of, much can be done. For starters, we should get the guns out of the hands of children and out of the schools. This cannot be left to the schools alone. It calls for a community-wide effort of parents, police, political and business leaders, churches and youth groups. It must be accomplished by an educational program to wean kids away from the gun mystique.

Now that California and New Jersey have taken the lead, other states should ban assault weapons. In North Carolina, Virginia and Connecticut, the governors and legislators have begun to consider such a ban. Assault weapons are designed to be man-killers, and they have increasingly become cop-killers and kid-killers. There is no place for them in a civilized society.

Then there is the lesson to be learned from Waco. If the congressional investigations are to serve any purpose, they must let us know how a band of notorious fanatics was able to amass an "arsenal" of firearms. With this information national and state governments can tighten the gun traffic laws and their enforcement.

And obviously Congress should quickly pass the Brady Bill. That measure is only a flea-bite on the gun monster, but it is a symbol and its passage would send a signal that the great hoax shall no longer prevail.

Of course, there will be no easy cure for the national plague of guns. But isn't a sustained effort by leaders and concerned citizens at least as vital to the peace and security of Americans as anything our troops may be doing in Somalia, or for that matter Bosnia?

Wallace Carroll is a former editor of the Winston-Salem Journal, from which this is reprinted by permission. He was Sam J. Ervin lecturer on constitutional rights at Wake Forest University for 10 years.

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