The Second Amendment and the Right to Keep and Bear Arms

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In my studies as an attorney and as a United States Senator, I have constantly been amazed by the indifference or even hostility shown the Second Amendment by courts, legislatures, and commentators. James Madison would be startled to hear that his recognition of a right to keep and bear arms, which passed the House by a voice vote without objection and hardly a debate, has since been construed in but a single, and most ambiguous, Supreme Court decision, whereas his proposals for freedom of religion, which he made reluctantly out of fear that they would be rejected or narrowed beyond use, and those for freedom of assembly, which passed only after a lengthy and bitter debate, are the subject of scores of detailed and favorable decisions. Thomas Jefferson, who kept a veritable armory of pistols, rifles and shotguns at Monticello, and advised his nephew to forsake other sports in favor of hunting, would be astounded to hear supposed civil libertarians claim firearm ownership should be restricted. Samuel Adams, a handgun owner who pressed for an amendment stating that the "Constitution shall never be construed ... to prevent the people of the United States who are peaceable citizens from keeping their own arms," would be shocked to hear that his native state today imposes a year's sentence, without probation or parole, for carrying a firearm without a police permit.

This is not to imply that courts have totally ignored the impact of the Second Amendment in the Bill of Rights. No fewer than twenty-one decisions by the courts of our states have recognized an individual right to keep and bear arms, and a majority of these have not only recognized the right but invalidated laws or regulations which abridged it. Yet in all too many instances, courts or commentators have sought, for reasons only tangentially related to constitutional history, to construe this right out of existence. They argue that the Second Amendment's words "right of the people" mean "a right of the state"-apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia ... to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that Congress has established the present National Guard under its power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia.

When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a bill of rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority, Sam Adams, or the New Hampshire delegates. Madison proposed among other rights that "That right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposals for the Bill of Rights were then trimmed in the interests of brevity. The conscientious objector clause was removed following objections by Elbridge Gerry, who complained that future Congresses might abuse the exemption to excuse everyone from military service.

The proposal finally passed the House in its present form: "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." In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing "For the common defense".

The earliest American constitutional commentators concurred in giving this broad reading to the amendment. When St. George Tucker, later Chief Justice of the Virginia Supreme Court, in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone's citation of the right of the subject "of having arms suitable to their condition and degree, and such as are allowed by law" with a citation to the Second Amendment, "And this without any qualification as to their condition or degree, as is the case in the British government." William Rawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the Second Amendment: "The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." The Jefferson papers in the Library of Congress show that both Tucker and Rawle were friends of, and corresponded with, Thomas Jefferson. Their views are those of contemporaries of Jefferson, Madison and others, and are entitled to special weight. A few years later, Joseph Story in his "Commentaries on the Constitution" considered the right to keep and bear arms as "the palladium of the liberties of the republic," which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass.

Subsequent legislation in the second Congress likewise supports the interpretation of the Second Amendment that creates an individual right. In the Militia Act of 1792, the second Congress defined "militia of the United States" to include almost every free adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and military equipment. This statute, incidentally, remained in effect into the early years of the present century as a legal requirement of gun ownership for most of the population of the United States. There can be little doubt from this that when the Congress and the people spoke of a "militia", they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, which the political theorists at the time considered essential to ward off tyranny. From this militia, appropriate measures might create a "well regulated militia" of individuals trained in their duties and responsibilities as citizens and owners of firearms.

If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying-that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976-establishes the repeated, complete and inevitable failure of gun laws to control serious crime.

Immediately upon assuming chairmanship of the Subcommittee on the Constitution, I sponsored the report which follows as an effort to study, rather than ignore, the history of the controversy over the right to keep and bear arms. Utilizing the research capabilities of the Subcommittee on the Constitution, the resources of the Library of Congress, and the assistance of constitutional scholars such as Mary Kaaren Jolly, Steven [sic] Halbrook, and David T. Hardy, the subcommittee has managed to uncover information on the right to keep and bear arms which documents quite clearly its status as a major individual right of American citizens. We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration's sponsors, now dead for two centuries. We did not make suppositions as to colonial interpretations of that Declaration's right to keep and bear arms; we examined colonial newspapers which discussed it. We did not speculate as to the intent of the framers of the second amendment; we examined James Madison's drafts for it, his handwritten outlines of speeches upon the Bill of Rights, and discussions of the second amendment by early scholars who were personal friends of Madison, Jefferson, and Washington and wrote while these still lived. What the Subcommittee on the Constitution uncovered was clear-and long-lost-proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The summary of our research and findings forms the first portion of this report.

In the interest of fairness and the presentation of a complete picture, we also invited groups which were likely to oppose this recognition of freedoms to submit their views. The statements of two associations who replied are reproduced here following the report of the Subcommittee. The Subcommittee also invited statements by Messr. Halbrook and Hardy, and by the National Rifle Association, whose statements likewise follow our report.

When I became chairman of the Subcommittee on the Constitution, I hoped that I would be able to assist in the protection of the constitutional rights of American citizens, rights which have too often been eroded in the belief that government could be relied upon for quick solutions to difficult problems.

Both as an American citizen and as a United States Senator I repudiate this view. I likewise repudiate the approach of those who believe to solve American problems you simple become something other than American. To my mind, the uniqueness of our free institutions, the fact that an American citizen can boast freedoms unknown in any other land, is all the more reason to resist any erosion of our individual rights. When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against government interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men.

Orrin G. Hatch,

Chairman,

Subcommittee on the Constitution

January 20, 1982.

The right to bear arms is a tradition with deep roots in American society. Thomas Jefferson proposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called for an amendment banning any law "to prevent the people of the United States who are peaceable citizens from keeping their own arms." The Constitution of the State of Arizona, for example, recognized the "right of an individual citizen to bear arms in defense of himself or the State."

Even though the tradition has deep roots, its application to modern America is the subject of intense controversy. Indeed, it is a controversy into which the Congress is beginning, once again, to immerse itself. I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts. Our Supreme Court has but once touched on its meaning at the Federal level and that decision, now nearly a half-century old, is so ambiguous that any school of thought can find some support in it. All Supreme Court decisions on the second amendment's application to the States came in the last century, when constitutional law was far different that it is today. As ranking minority member of the Subcommittee on the Constitution, I, therefore, welcome the effort which led to this report-a report based not only upon the independent research of the subcommittee staff, but also upon full and fair presentation of the cases by all interested groups and individual scholars.

I personally believe that it is necessary for the Congress to amend the Gun Control Act of 1968. I welcome the opportunity to introduce this discussion of how best these amendments might be made.

The Constitution subcommittee staff has prepared this monograph bringing together proponents of both sides of the debate over the 1968 Act. I believe that the statements contained herein present the arguments fairly and thoroughly. I commend Senator Hatch, chairman of the subcommittee, for having this excellent reference work prepared. I am sure that it will be of great assistance to the Congress as it debates the second amendment and considers legislation to amend the Gun Control Act.

Dennis DeConcini,

Ranking Minority Member,

Subcommittee on the Constitution

January 20, 1982.

The second and tenth counts are equally defective. The right there specified is that of bearing arms for a lawful purpose. This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana.

The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator."

Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the Constitutional provision in question out of view, prohibit the people from keeping and bearing arms ...

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walk."

- Thomas Jefferson, Encyclopedia of T. Jefferson,

318 (Foley, Ed., reissued 1967)

"What country before ever existed a century and a half without a rebellion? ... The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."

- Thomas Jefferson,

Letter to William Stevens Smith,

November 13, 1787.

"What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

- Thomas Jefferson to James Madison,

Dec. 20, 1787, quoted from

"Papers of Jefferson" edited by Boyd et al.

And, most importantly, Jefferson writing in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Does it seem at all likely that Thomas Jefferson would have endorsed the notion that civilians are to be armed only after obtaining permission from government officials?

[Illustration. Caption: "A 1770 Paul Revere etching depicts British soldiers firing on a Boston Crowd." What chutzpah.]

Q What exactly is a "well regulated militia?"

A Militias in 1792 consisted of part-time citizen-soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barns - there was no other way to muster a militia with sufficient speed.

Over time, however, the state militias failed to develop as originally anticipated. States found it difficult to organize and finance their militias, and, by the mid-1800's, they had effectively ceased to exist. Beginning in 1903, Congress began to pass legislation that would eventually transform state militias into what is now the National Guard.

Today, the National Guard - and Army Reserve - are scarcely recognizable as descendants of militias in the 1790's. The National Guard and Reserve forces, in fact, do not permit personnel to store military weapons at home. And many of today's weapons - tanks, armored personnel carriers, airplanes, and the like - hardly lend themselves to use by individuals.

As Senator Hatch pointed out, the current National Guards are not "descendants" of the militia at all; they were not organized under the militia clause of the constitution but under Congress's power to raise an army. The Supreme Court decision in Perpich v. Department of Defense - in which Governor Rudy Perpich of Minnesota was seeking to prevent use of the Minnesota National Guard troops outside of U.S. territory - established that as a legal issue.

Today, soldiers in the National Guards are dual-enlisted in their State Guards, subject to the military authority of the various state governors, and as reservists in the Armed Forces of the United States, subject to call up for active duty. They can be sent to train or even engage in overseas combat.

On the other hand, current United States law (10 USC, 311b) still defines most male adults in this country as members of the reserve militia.

Finally, the executives of the ACLU of Southern California's call for abandoning the Second Amendment is a prelude toward general restrictions on popular arms, the sort that might be used against ambitious politicians who seek to impose their elite policies on a recalcitrant public against its will. Considering how little popular support there is for many of the extremist positions taken by ultraliberal supporters of the ACLU of Southern California, it is not difficult to see that a well-armed and likely uncooperative citizenry is an impediment to utopian social engineering which requires docile submission by the public to government officials.

The national office of the ACLU is at least aware that armed police power in this country is dangerous to liberty: they have joined with the NRA and the Second Amendment Foundation in calling for a commission to investigate abuse of power by authorities in cases such as:

o The raid on the home of California millionaire Donald Scott, whose Malibu home was invaded - and Scott killed while sleepily trying to defend himself from what he thought was burglars - on a trumped up warrant alleging illegal drugs in an attempt to confiscate his estate under asset forfeiture laws;

o The entrapment of backwoodsman Randy Weaver of Ruby Ridge, Idaho by federal Alcohol, Tobacco, and Firearms agents attempting to blackmail him into spying for them on fellow white supremacists; they tricked him into sawing off a shotgun past the legal limit. His continued refusal led to an FBI sniper murdering his wife (while she held their infant child) and Weaver's older son. Weaver was tried and acquitted for shooting back in spite of attempts (established by civil-liberties attorney Gerry Spence in Weaver's trial) by federal officials to falsify evidence. No charges have yet been filed against any federal officials;

o The invasion and opening of initial gunfire on the law-abiding Branch Davidians in Waco, Texas by ATF agents attempting to draw attention away from a sexual harassment scandal at the agency, and the subsequent burning down of the Branch Davidian complex by FBI-driven tanks collapsing the structure and causing combustion; 81 men, women, and children died in that fire.

With government out of control, is this the time for a civil liberties organization to advocate disempowering the civilian population by disarming them?

Guns in America:

The Statistics:

o Firearms were used to kill more than 60,000 people in the last two years. Handguns kill 22,000 per year, 60 each day, including 12 children.

And, according to the National Self Defense Survey, firearms saved five million people from criminals in those same two years. That's 6,849 lives defended by privately owned firearms per day.

o U.S. civilians own 211 million guns, including 66.7 million handguns.

o A new handgun is produced every 20 seconds and is used to shoot someone every two minutes.

Yes, and a handgun prevents a criminal attack every 16 seconds.

o Every day, handguns are used in 33 rapes, 575 robberies, and 1,116 assaults.

According to data from the National Self Defense Survey, of the 1.9 million handgun defenses in one year, about 8 percent of the defensive uses involved a sexual crime such as an attempted sexual assault - 416 handgun defenses per day, or a dozen handgun defenses for each time a handgun is used by a rapist. Twenty-two percent involved robbery - 1145 handgun defenses per day, or twice as many handgun defensesfor each time a handgun is used in a robbery. About 29 percent involved some sort of assault other than sexual assault -- 1510 per day, or one-and-a-half times as often as handguns are used in non-sexual assaults. It seems the executives of the ACLU of Southern California, if they got their way and succeeded in further restricting handgun availability to the general public, would be making it easier for rapists than the perpetrators of any other crime.

o In late 1993, a Time Magazine/CNN poll found that 92% of Americans supported the recently passed Brady Bill, which requires a five-day waiting period to buy a handgun.

And reverts to an NRA-backed instant background check after five years.

o The same poll found that 60% favor even stronger gun-control laws.

Which is meaningless, since most people polled have no idea what the current gun control laws are. If you were to poll most Californians (especially those who don't own a firearm) whether they favor imposing the Brady Law's five-day waiting period on California, you'd probably get an overwhelming "yes" - from people who aren't even aware that there has been a fifteen-day waiting period in California since 1975.

o More than 600,000 guns are sold each year in California alone.

Obviously being purchased by people who think they have the right to keep and bear firearms. Or should only the opinions of elitist executives of the ACLU of Southern California carry political weight?

o A Seattle-based study concluded that for each example of a gun used in self-defense to kill an intruder, there were 43.9 other gun fatalities. That includes 2.3 incidents of accidental gun deaths, 4.6 criminal homicides, and 37 suicides.

If one compares the National Self Defense Survey's estimated 1,728,000 gun defenses in or around a home in one year with a conservatively high estimate of gun-related homicides and fatal gun accidents in the home in a year - at most about 8,000 - one can compute that a gun kept in the home for protection is about 216 times as likely to be used in a defense against a criminal than it is to cause the death of an innocent victim in that household.

o In 1989, 178 justifiable homicides were reported nationwide, but 1600 accidental killings involving guns.

In fact, the number of justifiable homicides in a year are, according to Gary Kleck, closer to 2,800, since FBI crime reports used by statisticians exclude any justifiable or excusable homicide which isn't labelled that in the initial police report. But even this is likely also an underestimate, since police are reluctant to classify any homicide as "justifiable," preferring to classify them as either unsolved or accidental.

As far as firearms accidents are concerned, they are down 40% from ten years ago, and down 80% from 50 years ago.

o Shooting is the leading cause of death among African-American males ages 15 to 24.

No one questions that African-Americans are the worst victims of crime of all kinds - and even the Reverends Jesse Jackson or Louis Farrakhan could not deny that these crimes are being done by young black males. But is this surprising in a culture whose family structure was destroyed by utopian government programs which created a generation of fatherless boys and inner-city government schools that taught a philosophy of dependency on big government rather than self-reliance? Who is historically more responsible for this state of affairs: the more-conservative NRA or the more-liberal ACLU?

o The Los Angeles County Sheriff's department recovers 30,000 guns a year during routine criminal investigations of which 6,000 have been legally purchased then stolen.

Are we also going to blame automobile owners when their cars are stolen or carjacked for use in a robbery? Talk about blaming the innocent for the actions of the guilty!

o Gunshot wounds to children nearly doubled between 1987 and 1990. Firearm murders of young people age 19 and under went up 125% between 1984 and 1990.

This is an odd definition of "children," which includes 18 and 19 year-old individuals who can serve in the military and on police forces. We must also seriously doubt whether it is firearms that are at fault in the deaths of children who are recruited into criminal gangs even before puberty.

o Every six hours, a teenager or preteen commits suicide with a gun.

And almost all studies of suicide show no correlation between the availability of any particular means of suicide and the suicide rate. Japan has few guns, yet has twice the U.S. suicide rate. The American Journal of Psychiatry from March, 1990 reported in a study by Rich, Young, Fowler, Wagner, and Black that all gun-suicides which were statistically reduced in the five years following Canada's handgun restrictions beginning 1976 were substituted 100% by suicides using other methods, mostly jumping off bridges. Therefore, eliminating firearms does not eliminate suicide: it merely shifts the suicide to other causes, and no rational public policy can conclude that the availability of firearms is a causative factor.

o An estimated 1.2 million elementary school-age latchkey children have access to guns when they are home alone.

Parents who leave their children home alone are morally and legally responsible for what ill befalls their children, whether it is from firearms, or from poison under the sink, or from a box of matches.

o Most Los Angeles high school students say they could buy a gun on the street in an hour or less if they needed it.

Perhaps they need it. School authorities and police seem singularly unable to protect them from the well-armed gangsters among them.¹

o When firearm suicide and homicide rates in Los Angeles County are combined, the total rate is higher than that for motor vehicle crashes.

And when the suicide and homicide rate in Japan is compared to the United States, it is higher than the combined U.S. rate. Yet Japan has few guns.

[ILLUSTRATION of a shadowy figure holding a handgun menacingly. Are the executives of the ACLU of Southern California trying to sell civil liberties, or Argosy Magazine?]

o At least four federal safety standards regulate the manufacture of teddy bears. No federal safety standards apply to the manufacture of guns.

Are they seriously suggesting that guns are inadequately designed to perform their function effectively - which is to fire energy-laden bullets at those who attack the innocent? Firearms are dangerous by necessity. The object is to make them dangerous only to those who need to be, and deserve to be, stopped by them. That is the purpose of firearms safety training - which the NRA was doing fifty years before the ACLU was even formed. I am constantly amazed that people who are afraid to be in the same room with a gun think they know how to tell firearms designers, instructors, and experienced shooters how to make guns safe. The elitist arrogance of those who would run our country seems to be unlimited.

o In 1993, handguns were used to kill 82 people in Japan, 76 people in Canada, 33 people in great Britain, and 40,000 people in the United States.

End of ACLU materials

Yet, we observe that in the absence of firearms, the Japanese still manage to die at their own hands as often as Americans. As for Canada, its homicide rate compares to that of demographically similar areas of the United States. And each British increase in gun-control has been followed by greater rates of violent crime. Cross-cultural comparisons are largely inappropriate; but when gun control is enacted in a society, there are few if any cases where a lowered crime rate follows locally (as opposed to a general downward trend in a wider area than that affected by the new gun-control law); and there are many cases where increased gun control is followed by increased violent crime. According to Randall Herrst, J.D., of the Firearms Education Institute, this is so well-established that he argues the only case for gun-control laws is as a social measure designed to increase violent crime.

The last paragraph from the ACLU brochure is, incidentally, copied from the literature of Handgun Control, Inc. Are liberal pocketbooks getting so tight that the ACLU of Southern California must compete for contributions against Sarah Brady?

- J.Neil Schulman

Footnote:

^1. The Los Angeles Times of February 20, 1994 reports in a story titled "Violence on School Campus Eludes Solutions," "[The Los Angeles Unified School District] has expelled a record number of students for bringing guns and knives on campus and has begun using metal detectors to search students for weapons. But students continue to bring weapons to school in large numbers. Supt. Sid Thompson acknowledges that school officials remain unable to ensure the safety of the district's 640,000 students. ... The problem has escalated so high that many students believe they must arm themselves for protection and there is little shock at seeing a weapon on campus, said school district police chief Wes Mitchell. 'It has become an informal social norm that kids need to protect themselves, so why not carry the tools to protect themselves?' said Mitchell, who added that the district should provide more education about guns and violence."

The following article appeared in the September, 1991 issue of California Libertarian News, official newsletter of the California Libertarian Party.

English Usage Expert Interprets 2nd Amendment

I just had a conversation with Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction of the Los Angeles Unified School District. Mr. Brocki taught Advanced Placement English for several years at Van Nuys High School, as well as having been a senior editor for Houghton Mifflin. I was referred to Mr. Brocki by Sherryl Broyles of the Office of Instruction of the LA Unified School District, who described Mr. Brocki as the foremost expert in grammar in the Los Angeles Unified School District - the person she and others go to when they need a definitive answer on English grammar.

I gave Mr. Brocki my name, told him Sherryl Broyles referred me, then asked him to parse the following sentence:

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

Mr. Brocki informed me that the sentence was overpunctuated, but that the meaning could be extracted anyway.

"A well-schooled electorate" is a nominative absolute.

"[B]eing necessary to the security of a free State" is a participial phrase modifying "electorate."

The subject (a compound subject) of the sentence is "the right of the people."

"[S]hall not be infringed" is a verb phrase, with "not" as an adverb modifying the verb phrase "shall be infringed."

"[T]o keep and read books" is an infinitive phrase modifying "right."

I then asked him if he could rephrase the sentence to make it clearer. Mr. Brocki said, "Because a well-schooled electorate is necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."

I asked: can the sentence be interpreted to restrict the right to keep and read books to a well-schooled electorate - say, registered voters with a high-school diploma?" He said, "No."

I then identified my purpose in calling him, and read him the Second Amendment in full:

"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."

He said he thought the sentence had sounded familiar, but that he hadn't recognized it.

I asked, "Is the structure and meaning of this sentence the same as the sentence I first quoted you?" He said, "yes." I asked him to rephrase this sentence to make it clearer. He transformed it the same way as the first sentence: "Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

I asked him whether the meaning could have changed in two hundred years. He said, "No."

I asked him whether this sentence could be interpreted to restrict the right to keep and bear arms to "a well-regulated militia." He said, "no." According to Mr. Brocki, the sentence means that the people are the militia, and that the people have the right which is mentioned.

I asked him again to make sure:

Schulman: "Can the sentence be interpreted to mean that the right can be restricted to "a well-regulated militia?"

Brocki: "No, I can't see that."

Schulman: "Could another professional in English grammar or linguistics interpret the sentence to mean otherwise?"

Brocki: "I can't see any grounds for another interpretation."

I asked Mr. Brocki if he would be willing to stake his professional reputation on this opinion, and be quoted on this. He said, "Yes."

At no point in the conversation did I ask Mr. Brocki his opinion on the Second Amendment, gun control, or the right to keep and bear arms.
- July 17, 1991

The following is reprinted from the September 13, 1991 issue of Gun Week, and also appears under the title "The Text of The Second Amendment" in The Journal on Firearms and Public Policy, Summer 1992, Volume 4, Number 1.

The Unabridged Second Amendment

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwarzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers - who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style: The Consensus.

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did not give him any indication of why I was interested, I sent the following letter on July 26, 1991:

I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

The text of the Second Amendment is, "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 debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary.

My letter framed several questions about the text of the Second Amendment, then concluded:

I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia"?;]

[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

[Schulman: (2) Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]

[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman:] As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate" - for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.

As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.

And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms - all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution.

And even the ACLU, staunch defender of the rest of the Bill of Rights, stands by and does nothing.

It seems it is up to those who believe in the right to keep and bear arms to preserve that right. No one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says but means whatever they say it means in their Orwellian doublespeak?

Or will we simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortunes, and our sacred honor?

I was looking at the "View" section of the LA Times from December 18, 1991 - an article on James Michener which my ex-wife Kate had saved for me to read - when the beginning of Jack Smith's column caught my eye: "Roy Copperud had no sooner died the other day than I had occasion to consult his excellent book, 'American Usage and Style: The Consensus.'"

Thus I learned of the death of Roy Copperud, the retired USC professor whom I had commissioned to do a grammatical analysis of the Second Amendment. It seems to have been one of the last projects he worked on. It is certainly one of the most important.

Roy Copperud told me afterwards that he, personally, favored gun control, but his analysis of the Second Amendment made clear that its protections of the right of the people to keep and bear arms were unaffected by its reference to militia. This sort of intellectual and professional honesty is sorely lacking in public discourse today.

In my several letters and phone conversations with Professor Copperud, I found him to be a gentleman of the old school.

The planet is a little poorer without him. -JNS

Some Notes and Discussion on the Second Amendment

The Meaning of the "Well-Regulated Militia"

"A well-regulated militia" in the preamble to the Second Amendment means "civilians who are trained how to use arms," as opposed to army regulars. In essence, the Second Amendment means, "Since it is necessary for the security of a free society that civilians know how to use arms, the right of the people to own and carry arms shall not be abridged." While Professor Copperud was technically correct that the meanings of the words haven't changed in 200 years - the definition of "militia" in the dictionary and on the law books hasn't changed - the public understanding of the word "militia" has been corrupted so most people today believe that the "militia" is a military unit rather than a civilian concept. This is precisely the "war is peace and freedom is slavery" corruption of language that George Orwell warned us against in Nineteen eighty four.

As far as the legal standing of the right to keep and bear arms in this country, it's mixed. The Supreme Court has never made a ruling on the second amendment per se and given the current make-up of the Court, it must make Handgun Control, Inc., very nervous to contemplate what would happen if a Second Amendment case does reach the Supreme Court.

From a Discussion on the GEnie Computer Network

Barry, Message 126: There is no "limiting prefix" in the Second Amendment. Two prominent, impartial linguistic experts - one considered the tops in his field - analyzed the text of the Second Amendment and came to this conclusion. Read Messages 72 and 73 in this topic for the full text of their analyses. On the interpretation of the Constitution. Article 9 of the amendments reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That is instruction from the framers on how the constitution is to be "construed" - that is, "constructed."

The Oxford English Dictionary does not give a definition of "well-regulated" but instead gives citations for its use. Here are its citations, which bracket the writing of the Second Amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time .. is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Major."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

Find me "regulation" by an outside authority in any of these uses.

Neil

A Note on the Punctuation of the SecondAmendment

I just received the following courtesy of Francis Warin of Oak Harbor, Ohio, in response to my article in Gun Week, "The Unabridged Second Amendment." Mr. Warin has apparently been distributing this letter since 1978.

THE LIBRARY OF CONGRESS
Congressional Research Service
Washington, D.C. 20540

To: Honorable Paul Findley

Attention: Miss Evans

From: American Law Division

Subject: Punctuation of the Second Amendment to the Constitution of the United States

This will refer to your request of July 5, 1972 on behalf of Mr. James H. Macklin for information relative to the captioned subject. Mr. Macklin had noted that the punctuation of this amendment varied with the different sources which have reproduced it.

By resolution in 1789, Congress proposed twelve articles to the legislatures of the several states as amendments to the Constitution of the United States. Ten of these articles were ratified by the legislatures of three-fourths of the states by 1791, including the amendment in question which was adopted in this form: "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." 1 United States Statutes at Large 21, 97.

Information pertaining to the debate on this amendment in the state and Federal legislatures may be found in: Schwartz, Bernard, The Bill of Rights: A Documentary History, 2 volumes, Chelsea House, New York, 1971. This work retains the original spelling, grammar and style of all documentary material.

[signature]

Paul L. Morgan

Legislative Attorney

In other words, according to the Congressional Research Service of the Library of Congress, the text of the Second Amendment ratified by the legislatures contained only one comma, and the comma between "arms" and "shall" which some cite as changing the meaning of the amendment is not in the original text.

- September 18, 1991

Reserve Militia Training and Regulation Act: a Proposal

Constitution of the United States of America

Article I, Sect. 8:

The Congress shall have Power

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Amendment II:

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 purpose of this proposal is to draft "The Reserve Militia Training and Regulation Act," and get it enough support from both reasonable gun-control advocates and gun-rights advocates to get it in front of Congress.

This is not a discussion of the National Guard. At this point, the National Guard serves a defined function as a military organization that can be called out by the individual states in event of statewide emergency, and as a reserve military force which the president can call up, even for fighting overseas. Whatever the merits of this treatment of the National Guard, it is not militia as the term was originally conceived by the authors of the Second Amendment.

The Second Amendment regards the militia as the people themselves, able-bodied and armed for defense against dangers to the civic safety and liberty from enemies both foreign and domestic. The original constitution, before amendment, has a militia clause which grants Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States, respectively, the appointment of the Officers, and the authority of training the Militia according to the discipline prescribed by Congress." The Constitution also provides that, "The President shall be Commander in Chief of ... the Militia of the several States, when called into the actual Service of the United States ... "

A bill for training and regulation of the militia is, therefore, not only constitutional, but constitutionally mandated.

The "militia" as defined by U.S. Code is every able bodied male between 17 and 45 who is a citizen of the United States or has declared an intention to become one, as well as female members of the National Guard and former members of the regular armed forces under age 64. U.S. Code further goes on to divide the militia into two classes - the organized militia which consists of the National Guard and Naval Militia, and the reserve or unorganized militia which consists of the members of the militia who are not members of the National Guard or the Naval Militia (10 USC, 311 b).

In Presser v. Illinois (1886), the Supreme Court stated "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the Constitutional provision in question out of view, prohibit the people from keeping and bearing arms ... "

U.S. v Miller (1939) recognized that the "militia comprised all males physically capable of acting in concert for the common defense" and that when called to service these men are expected to appear "bearing arms supplied by themselves and of the kind in common use at the time."

In the last month, as I write this, we have seen on television news reports of massacres of innocent people by deranged, armed individuals. George Hennard, in Killeen, Texas, killed 23 and wounded 19 on October 16th, in a lunchtime cafeteria, using a couple of 9 millimeter semi-auto pistols. Dr. Gang Lu, a Chinese post-graduate student at the University of Iowa's physics department, killed five and wounded one with a .38 revolver, on November 1st. Thomas McIlvane, a fired postal worker, killed four and wounded eight others with a sawed-off .22 rifle, on November 14th, in Royal Oak, Michigan.

All three gunmen made themselves their final victims, shooting themselves, fatally, as their last act. Retributive justice can have no deterrence on individuals who intend to kill themselves after committing murder. And police, even with excellent response times, can't be everywhere at once.

According to the FBI, the United States is experiencing three such massacres - defined as one gunman and four or more fatalities - every month.

Combine this with the rates for street crime - drive-by shootings, gang-related shootings, muggings, "wildings," rapes, purse-snatchings, etc. - and we have a society where the streets are a literal war-zone.

Advocates of gun-control believe crime can be stemmed by the passage and enforcement of laws restricting ownership, possession, and carrying firearms. Their thesis looks attractive in the abstract; but when you consider the over 200 million firearms that already exist in this country, no one can make a reasonable case that gun-restriction affects other than the extremely law-abiding - the least likely class to pose a threat to public safety.

However, the media is almost universally in favor of gun control, regardless of its practicality. It is obvious that any political change in this situation in the direction of increasing the ability of the public to defend itself, must come under the heading of "regulation."

Which is precisely what the militia is supposed to be: well-regulated. Armed, trained, and ready at all times to defend the country from all enemies, foreign and domestic.

If three massacres a month isn't a reason enough to make better use of the militia, then what is?

The purpose of "The Reserve Militia Training and Regulation Act" is to provide training on demand for any sane, adult, able-bodied American who is not a criminal, in the use of firearms, with the mandate that once trained, such people can be expected to maintain weapons at home, keep themselves able to use them safely and effectively, and be expected to carry arms, for the defense not only of themselves, but in defense of their loved ones, neighbors, and co-workers.

The reserve militia is not to be maintained as a standing army or "select" militia; it is not to be called up, as the National Guard is, for service, military or otherwise.

The militia must be civilian, not military or paramilitary, and its methods and functioning should be as narrowly focused to the purposes of individual defense as humanly possible.

The militia should be governed by civilian laws, rather than the Universal Code of Military Justice.

No uniforms, no dress or hair codes. No militaristic trappings, such as saluting, marching, dress parades, etc.

No discrimination, whether based on gender, sexual preference, age (beyond excluding juveniles), and the usual race, creed, religion, national origin, color, etc.

"Able-bodied" should be defined as broadly as possible. If a paraplegic wishes to participate, and is capable of wielding an effective weapon, it should be permitted. Likewise, obesity shouldn't be a factor, so long as it doesn't interfere with the ability to utilize weapons properly. Likewise, if you're 75 and still have good eyes and a steady hand.

Militia training should be designed to be as unobtrusive to civilian life as possible. No "boot camps." No rigorous physical training. No requirements to leave home for training; training schedules should be evenings and weekends, and allow for flexible schedules as much as possible.

No use of militia for propaganda, even in the "best" of causes. No pamphleteering, picketing, or marching while armed. No organization of private or political paramilitary units by militia. No vigilantism.

Everything above is designed to distinguish the militia from military and police organizations, which presumably can continue functioning as usual.

Here is a preliminary overview of what the Reserve Militia Training and Regulation Act might accomplish:

1) United States Code Title 10 Section 311 would be amended to redefine militia from its current definition to that of any able-bodied person 17 or older, not a convicted felon (unless pardoned) or a person who has been found not guilty of a felony by reason of insanity (unless legally declared restored to sanity), who is a citizen of the United States, or has declared intent to become a citizen of the United States. Able-bodied would be defined so as not to exclude paraplegics capable of using weapons, or those who are otherwise physically imperfect, so long as the imperfections do not make it impossible to train in or use weapons.

2) A provision would be inserted forbidding involuntary call-ups of reserve militia for military service.

3)a) United States Code Title 32 Section 109 would require every State to provide training and qualification in firearms to any member of the reserve militia upon request. Standards of qualification would be comparable to that of NRA qualification, and training programs would continue to be under the jurisdiction of the Director of Civilian Marksmanship.

b) Once qualified with a weapon, a member of the reserve militia would be immune from all local, state, and federal laws which restrict or delay purchase of that weapon, purchase of ammunition for that weapon, and ownership of that weapon and, except for fully automatic weapons, bearing of that weapon in a condition loaded and ready for use, in all places, public and private, except that courts and legislative bodies may set restrictions for trials and legislative sessions. Militia members who have qualified with fully-automatic weapons would in addition be immune from laws against transporting them, unloaded, for purposes of training, practice, repair, display, or during purchase or sale.

4) Provision would be made for making available weapons and ammunition, and providing places for regular marksmanship practice, to militia members who could not otherwise afford to do so. Provision would also be made for the storing of ammunition, reserved specifically for the defense of the United States, in private homes.

5) This legislation would in no way act as a restriction upon the keeping and bearing of arms by those who do not participate in militia training. It would merely have the affirmative effect of enabling the keeping and bearing of arms to those who are currently restricted from doing so by local, state, and federal legislation.

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