Date: Sat, 10 Dec 1994 18:17:26 -0500 From: alerts@gatekeeper.nra.org (NRA Alerts) To: best-rkba@mainstream.com Subject: HCI Attempts to Mythologize Second Amendment History HANDGUN CONTROL, INC. ATTEMPTS TO MYTHOLOGIZE SECOND AMENDMENT HISTORY MYTH 1: The Second Amendment was not crafted with the same breadth of language as the other Amendments. Instead, this Amendment begins by stating clearly its limited purpose: the preservation of "well regulated" state militia forces. FACT: Unlike certain indefinite rights recognized by the courts (e.g., abortion), the Second Amendment uses broad and explicit language. The introductory clause of the Second Amendment contains precatory language. The subordinate clause's precatory language in no way limits the amendment's sweeping command that "the right of the people to keep and bear shall not be infringed." Akil Amar, Professor of Law at Yale University and author of The Bill of Rights as a Constitution, 100 Yale, (1990) has written: "The states' rights reading puts great weight on the word `militia', but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to `the people' not `the states.' As the language of the Tenth Amendment shows, these two are of course not identical when the constitution means `states' it says so. Thus as noted above, `the people' at the core of the Second Amendment are the same `people' at the heart of the Preamble and the First Amendment, namely citizens." MYTH 2: The original colonial militia did not include everyone. Rather it included able-bodied adult males between the ages of 18 and 45. The militia was always an organized state-sponsored military force, not simply an ad hoc collection of armed citizens. FACT: Founding Father George Mason supplied the response to this fantasy: "I ask, Who are the Militia? They consist now of the whole people, except a few public officers." A decade ago in his book That Every Man Be Armed, attorney and former law professor Stephen P. Halbrook offered gun prohibitionists a challenge they have yet to accepted. Halbook wrote: "In recent years it has been suggested that the Second Amendment protects the `collective' right of states to maintain militias, while it does not protect the right of `the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century, for no known writing surviving from the period between 1787 and 1791 states such a thesis." MYTH 3: Federal Law distinguishes between the organized militia (the National Guard) and the unorganized militia. The Second Amendment right to bear arms belongs to the organized or, to use its own words, "well regulated" militia. FACT: The framers provide a response to this myth. A proposed Bill of Rights, in Roger Sherman's handwriting, would have provided for a militia for the states, but it had no guarantee that "the right of the people to keep and bear arms shall not be infringed." It was rejected. Instead, the broad language of what became the Second Amendment, with its command that "the right of the people to keep and bear arms shall not be infringed," was adopted. MYTH 4: Possession of a weapon is not constitutionally protected by the fact that it could in some scenario be used by the state militia. Rather the possession and use of the weapon must be connected with active service in the state militia. FACT: The real myth is that the Second Amendment does not guarantee a private right to keep and bear arms. The framers knew how to use the King's English. People on active service in the military do not need a constitutional guarantee to carry guns while on duty. The most repressive regimes on earth allow members of the military to carry guns while on duty. The Second Amendment commands that "the right of the people to keep and bear arms shall not be infringed." This guarantees the right to keep and bear arms for self-defense and for communal defense. MYTH 5: U.S. v. Verdugo-Urquidez was not a Second Amendment case at all. It was a Fourth Amendment case. It does not address the meaning of the Second Amendment right to bear arms. FACT: The myth is that the decision is irrelevant to the Second Amendment. Verdugo-Urquidez focused on what the word "people" means in the Fourth Amendment. The court was compelled to canvas the Bill of Rights. The court held that the word "people" has the same meaning in the First, Second, Fourth, Ninth, and Tenth Amendments, i.e., it is an individual right. MYTH 6: In Perpich v. Department of Defense the court held that members of the National Guard, when not in federal service, "continue to satisfy [the] description of a militia." FACT: The myth is that "militia" means exclusively the National Guard. Under Perpich the term militia is not restricted to the National Guard: "all portions of the 'militia' - organized or not- [are subject] to call if needed for the purposes specified in the Militia Clauses." "The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation," writes historian Joyce Lee Malcolm in To Keep and Bear Arms (Harvard University Press 1994). MYTH 7: The NRA consistently quotes colonial leaders out of context. There is sufficient historical evidence to show that the basic concern of these leaders, in the drafting and passage of the Second Amendment, was the preservation and the efficiency of state militia forces. FACT: This is a myth. NRA's view is supported by publications from the most prestigious universities in the nation: e.g., Duke, Georgetown, Harvard, Rutgers and Yale. -- This information is presented as a service to the Internet community by the NRA/ILA. Many files are available via anonymous ftp from ftp.nra.org, via WWW at http://www.nra.org, via gopher at gopher.nra.org, and via WAIS at wais.nra.org Be sure to subscribe to rkba-alert by sending: subscribe rkba-alert Your Full Name as the body of a message to rkba-alert-request@NRA.org Information can also be obtained by connecting to the NRA-ILA GUN-TALK BBS at (703) 934-2121. ------------------------------