"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."
How often have we heard the gun lobby (the National Rifle Association) and its supporters answer persuasive arguments for reasonable gun control with the claim: "Gun ownership is a constitutional right guaranteed by the Second Amendment?"
This claim that the Second Amendment to our Constitution guarantees a broad, individual right to "keep and bear arms" is the bedrock of the NRA's opposition to even the most sensible gun control laws.
The NRA's constitutional theory is, however, divorced from historical and legal reality. It is based on calculated disinformation about the text and history of the Second Amendment, as well as a systematic distortion of key judicial rulings interpreting the amendment. This disinformation is spread by way of NRA publications and ads, as well as persistent letter writing by NRA supporters to newspapers and elected officials.
The result of this disinformation campaign is the creation of a Second Amendment "mythology" which, because it so often goes unchallenged, has managed to penetrate the consciousness of many Americans.
The NRA's distortion of the Second Amendment begins with its habitual omission of the "militia clause" when the amendment is quoted. Amazingly, the militia clause is totally missing from the amendment as inscribed near the front door of NRA national headquarters! If the NRA grounds itself in the Second Amendment, why do they omit and ignore half of its wording?
When the NRA is forced to address the militia language in the amendment, it seriously distorts the nature of the "well-regulated militia." In their view, the term "militia" is synonymous with the general citizenry.
However, the fact is that compulsory membership in the 19th century militia consisted of only able-bodied white males between ages 18-45, not the entire population. The militia was an organized force whose members were subject to certain legal requirements imposed by the colonies and later the states.
This trained and well-regulated force was far from the impromptu collection of armed citizens that many Americans now envision. It was, rather, a "state army," and our modern "well-regulated militia" is the National Guard, a state-organized military force, whose weapons are supplied by state government.
For this reason, courts have consistently held that gun control laws affecting private ownership, sale and use of firearms do NOT violate the Second Amendment because such laws do not adversely affect the arming of a "well-regulated militia;" i.e., the national guard (U.S. v Miller, 307 U.S. 174, 1939; Lewis v United States, 445 U.S. 55 1980; Eckert v City of Philadelphia, 477 F.2d 610 3rd Cir. 1973. Over 35 federal and state court decisions support the "militia" interpretation of the Second Amendment and deny a personal right to bear arms as separate from militia service).
Another of many myths perpetrated by the NRA is that the authors of the Constitution intended that the Second Amendment protect the possession of firearms, even without a connection with the militia. They especially like to quote (out of context) James Madison (author of the Bill of Rights) and Patrick Henry, who did say: "The great object is that every man be armed...." during the Virginia debates over the ratification of the Constitution; but the NRA fails to note that he was speaking of arming the men of the militia by state government, so that the militia could be an effective counter force to the federal standing army.
It was this federal army the authors wished to keep in check, as they were still smarting from the tyrannous standing army of George III! The Second Amendment, then, was solely intended to preclude the federal government from enacting laws which would disarm the state militia.
Supreme Court justices (Burger and Powell), attorneys general (Katzenbach, Clark, Richardson, Bell, Civiletti) and constitutional scholars, among others, have decried the destructive mythology of the gun lobby about the Second Amendment. Justice Burger spoke of the "great fraud" the NRA has perpetrated upon the American people.
Even before the horrors of Paducah, Springfield and Columbine, nearly 77 percent of the American public (including many gun owners) urged stronger enforcement of existing gun laws and the adoption of reasonable state gun regulations, similar to those for automobiles. We've kept our cars, though regulated, and we can keep our guns too, and continue to enjoy their lawful use.
Our shocking murder rate will no longer stand quiet before the constitutional distortions of the NRA. The truth must finally be heard that regulating private gun ownership, for everyone's safety, does NOT violate the Second Amendment. The time is now for the mythology to stop and the truth to be known. Countless lives depend on it.
Susan Paslov is a retired attorney who teaches English as a Second Language. She is married with three children and one grandchild.
