from Guns, Crime & Freedom, by Wayne
LaPierre (Regnery, 1994)]
should either put up or admit there is no Second
Amendment guarantee... We are confident in our
challenge because there is no confusion in the
law on this issue."
William Ide III
American Bar Association
Militia, being necessary to the security of
a free State, the right of the people to
keep and bear Arms, shall not be infringed."
A common claim
of the anti-gun lobby is that the Founding Fathers
never meant that individuals should be
armed; they only intended for the Second
Amendment to apply to a militia, such as
the National Guard.
interpreters of the Constitution also ignore the
Second Amendment's specific reference to "the
right of the people." The fact that the "rights
of the people" appears in the Fourth, Ninth, and
Tenth Amendments as well--and that the courts
have ruled repeatedly that these rights
belong to individuals--matters little to them.
They retreat to their standard charge that
the Founding Fathers never intended for
the people to have the right to keep and bear
Even a casual
reading of our Founding Father's works would prove
these foes of the Second Amendment wrong. Volumes
upon volumes of articles, pamphlets, speeches,
and documents that laid the foundation
for the Bill of Rights clearly define the founders'
purpose, including what they intended with the
America, the threats posed by a standing British
army loomed large in the minds of the colonists.
Resistance was widespread. In response to the
dissent, the British increased their military
presence. Two years later, in 1770, unarmed citizens
were gunned down in the streets of Boston, in
what became known as the Boston Massacre.
The Boston Massacre
was the fuse that lit the powder keg of debate
over the right of the people to be armed.
ironically enough, the colonists did in fact have
the right to be armed under English common law.
John Adams, then serving as a defense counsel
for one of the British soldiers who participated
in the shooting, acknowledged this in his opening
private person is authorized to arm himself,
and on the strength of this authority, I do
not deny the inhabitants had a right to arm
themselves at that time, for their defense,
not for offense ....
With the courts
of the time affirming the colonists' right to
keep and bear arms, the British oppressors were
placed between the proverbial "rock and a hard
place." From that point on, quelling dissent would
involve the denial of a basic right afforded all
British proceeded down a path that could only
lead to revolution. Not only did the British strengthen
their military chokehold on Boston, they instituted
a program of arms confiscation. Citizens could
leave the city only upon "depositing their arms
with their own magistrates."
of arms focused the attention of our Founding
Fathers on the threats posed by a standing army
quartered among the people, and the necessity
of having an armed citizenry to prevent the tyranny
of such an occupying force.
No doubt inspired
by the Boston arms confiscations, George Mason,
the subsequent co-author of the Second Amendment,
wrote in his Fairfax County Militia Plan:
... A well-regulated
Militia, composed of the Gentlemen, Freeholders,
and other Freemen was necessary to protect our
ancient laws and liberty from the standing army
... And we do each of us, for ourselves respectively,
promise and engage to keep a good Fire-lock
in proper order & to furnish Ourselves as
soon as possible with, & always keep by
us, one Pound of Gunpowder, four Pounds of Lead,
one Dozen Gun Flints, and a pair of Bullet Moulds,
with a Cartouch Box, or powder horn, and Bag
lobby devotes considerable intellectual energy
to the definition of "militia" as it
appears in Mason's writings. Mason, however, made
a very clear distinction between a "standing
army," such as a guard unit, and a "militia,"
composed of private citizens. The anti-gunners
nevertheless claim that the militia refers to
a national guard, not to the citizenry at large.
To eliminate any doubt, however, Mason made his
point clear in other writings as, for example,
when he said, "To disarm the people [is]
the best and most effectual way to enslave them."
were echoed by Samuel Adams who admonished the
uneasy colonists that:
... It is always
dangerous to the liberties of the people to
have an army stationed among them, over which
they have no control ... The Militia is composed
of free Citizens. There is therefore no Danger
of their making use of their power to the destruction
of their own Rights, or suffering others to
In this passage,
Samuel Adams further clarified Mason's thinking
on the power of government in respect to the armed
citizen: rights are sacred when the beneficiaries
of those rights are entrusted with their safekeeping,
and have the means to do so.
Fathers clearly understood that, once armed, Americans
would defend their freedoms to the last
breath. Nowhere was this notion more evident than
in Patrick Henry's "Give me liberty, or give
me death" speech. The context of that oration
– the importance of an armed population – has
unfortunately been lost in today's "politically
correct" anti-gun climate. Yet, Henry's words
are there to defend the embattled Second
Amendment. When speaking of revolution, Henry
They tell us …
that we are weak--unable to cope with so formidable
an adversary. But when shall we be stronger?
... Will it be when we are totally disarmed,
and when a British guard shall be stationed
in every house? ... Three million people, armed
in the holy cause of liberty ... are invincible
by any force which our enemy can send against
not only issued this warning, he acted upon it.
Following the British attempt to seize arms
and ammunition in Boston, and the subsequent
historic skirmish at Lexington, the British seized
gunpowder at Williamsburg, Virginia. The
Hanover Independent Militia, led by Patrick Henry,
was unable to retake the powder, but they
forced the British to pay restitution. At this
point, the British denial of the colonists' right
to keep and bear arms became the driving force
behind the armed resistance.
right--the importance of an American's ability
to defend his liberties--became the principal
argument of our Founding Fathers for independence.
Following the "shot heard round the world"
at Lexington, Thomas Jefferson penned these words
in the Virginia Constitution of 1776: "...
No free man shall be debarred the use of arms
within his own land."
Nowhere are Jefferson's
thoughts about the rights and powers of the citizenry
more explicit than in the Declaration of Independence,
which he had such a hand in writing: "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 abolish it."
and his co-authors of the Declaration, preferred
peaceful changes in government. But those four
words – "the Right of the People" –
state in plain language that the people have the
right, must have the right, to take whatever measures
necessary, including force, to abolish oppressive
not alone in sounding the call to arms. Henry,
Adams, Washington all called upon the colonists
to arm themselves. And the call was issued to
all Americans, not only landowners and freemen.
Thomas Paine, renowned for his treatise, Common
Sense, urged religious pacifists to take up
arms in his pamphlet Thoughts on Defensive
... The balance
of power is the scale of peace. The same balance
would be preserved were all the world not destitute
of arms, for all would be alike; but since some
will not, others dare not lay them aside ...
Horrid mischief would ensue were one half the
world deprived of the use of them ... the weak
will become a prey to the strong.
In the case of
the American Revolution, however, it was the strong
that became the prey of the weak. Indeed, seasoned
British troops were beleaguered by the armed and
resolute citizens of the colonies.
Fathers wasted no time in attributing this victory
to the right of the people to keep and bear arms.
James Madison, the father of the Second Amendment,
congratulated his countrymen:
the right and advantage of being armed – unlike
citizens of other countries whose governments
are afraid to trust the people with arms.
Indeed, it was
President George Washington who urged the first
Congress to pass an act enrolling the entire adult
male citizenry in a general militia. The father
of our country further urged that "A free
people ought not only to be armed, but disciplined."
sentiments about the militia, and who should be
included in the militia in the infant United States,
were echoed by George Mason in the debate on the
ratification of the Constitution before the Virginia
Assembly: "I ask, sir, what is the militia?
It is the whole people, except for a few public
for a few public officials." With these six
words, George Mason made explicit his deep-set
belief that the individual armed citizen was the
key to protection against government excesses
and in defense of freedom.
expanded on this point in The Federalist Papers,
number 46, where he downplayed the threat of seizure
of authority by a federal army, because such a
move would be opposed by "a militia amounting
to half a million men."
In 1790, since
the population of the United States was about
800,000, Madison wasn't referring to state reserves.
By militia, Madison obviously meant every able-bodied
man capable of bearing arms. This, undoubtedly,
was also the meaning of "militia" when
the Second Amendment was written.
Across the nation,
Federalists echoed our Founding Fathers' insistence
that the right to keep and bear arms become part
of the Constitution. In a pamphlet advocating
Pennsylvania's ratification of the Constitution,
patriot and statesman Noah Webster declared:
Before a standing
army can rule, the people must be disarmed;
as they are in almost every kingdom in Europe.
The supreme power in America cannot enforce
unjust laws by the sword, because the whole
body of the people are armed, and constitute
a force superior to any band of regular troops
that can be, on any pretense, raised in the
Not only did
our Founding Fathers focus their debate on the
right of the people to keep and bear arms, they
devoted considerable energy to issuing a warning
to future generations that the battle to defend
these freedoms will take precedence over all other
It was Patrick
Henry at the Virginia convention on the ratification
of the Constitution who articulated the necessity
of guarding the rights of an armed citizenry.
Guard with jealous
attention the public liberty. Suspect every
one who approaches that jewel. Unfortunately,
nothing will preserve it but downright force.
Whenever you give up that force, you are mined.
And James Madison,
in the National Gazette, January 19, 1792:
Liberty and order
will never be perfectly safe until a trespass
on the Constitutional provisions for either,
shall be felt with the same keenness that resents
an invasion of the dearest rights.
the invasion of our dearest rights is taking place
today. As this book goes to press, there are sixteen
gun-ban bills before the United States Congress,
and hundreds more before the state legislatures
and city councils. The politicians, in the name
of fighting crime, are attacking the sacred constitutional
rights of law-abiding American citizens. Today,
it is politically correct to ignore the Founding
Fathers and their clear intent. For the sake of
political expediency, the anti-gun lobby, the
anti-gun media, and the anti-gun politicians,
including the [former] president [Clinton], have
twisted, tangled, and reinterpreted their words.
The anti-gunners would do well to pay heed to
the words of Benjamin Franklin:
They that can give
up essential liberty to purchase a little temporary
safety, deserve neither liberty not safety.
a large part of this tragedy-the wanton disregard
of our essential liberties-can be laid at the
feet of Americans who have not taken action to
protect their freedoms. To quote C.S. Lewis: "We
laugh at honor and are shocked to find traitors
in our midst."
must leap to the defense of his or her liberties.
We must answer, word for word, the vicious attacks
that pour out from the TV screen and newspaper
pages around the country. We must attend town
meetings in protest and we must hold our elected
officials accountable. We must not allow them
to misinterpret our Founding Fathers’ directives.
Then, and only then, will freedom be safe for
In the words
of Dwight D. Eisenhower, "Freedom has its
life in the hearts, the actions, the spirit of
men and so it must be daily earned and refreshed-else
like a flower cut from its lifegiving roots, it
will wither and die."
The Right of the
People to Keep and Bear Arms
Shoemaker dismisses as "idiocy" the
belief that the Second Amendment prevents government
from banning guns.
of Scripps-Howard News Service says "only
gun nut simpletons [and] NRA propagandists ...
defend against gun controls on constitutional
including the suggestion that the constitutional
right to keep and bear arms applies only to the
state militia and National Guard, is commonly
heard in the media's anti-gun campaign.
however, are willing to concede that their views
on the Second Amendment don't square with scholarship
on the issue. In a column in the Washington
Post, March 21,1991, George Will wrote concerning
Sanford Levinson's Yale Law Journal article,
"The Embarrassing Second Amendment":
The National Rifle
Association is perhaps correct and certainly
is plausible in its "strong" reading
of the Second Amendment protection of private
gun ownership. Therefore gun control advocates
who want to square their policy preferences
Constitution should squarely face the need to
deconstitutionalize the subject by repealing
the embarrassing amendment.
Michael Kinsley, co-host on CNN's "Crossfire"
and formerly editor-in-chief of the New Republic,
regularly calls for gun control and proudly
holds membership in Handgun Control, Inc. But
in an op-ed article in the Washington Post,
January 8, 1990, Kinsley wrote:
there is the Second Amendment to the Constitution.
of the First Amendment's free-speech guarantee
was pretty clearly to protect political discourse.
But liberals reject the notion that free speech
is therefore limited to political topics, even
broadly defined. True, that purpose is not inscribed
in the amendment itself. But why leap to the
conclusion that a broadly worded constitutional
freedom ("the right of the people to keep
and bear arms") is narrowly limited by
its stated purpose, unless you're trying to
explain it away? My New Republic colleague
Mickey Kaus says that if liberals interpreted
the Second Amendment the way they interpret
the rest of the Bill of Rights, there would
be law professors arguing that gun ownership
is mandatory. [Emphasis added.]
Despite an occasional
admission that the Second Amendment means what
it says, many columnists, with little or no understanding
of the roots of the Constitution, rush to embrace
a view that finds virtually no support among high-ranking
an article in the Encyclopedia of the American
Constitution summarizing Second Amendment
literature in 1986, of the thirty-six law review
articles published since 1980, only four
support the anti-gun position, while thirty-two
articles support the individual right position
advocated by the National Rifle Association.
rights authors include leading constitutional
scholars who don’t own guns and who "never
expected or desired the evidence to crush
the anti-gun position."
Levinson of the University of Texas Law School,
co-author of the standard law school text on the
Constitution, Processes of Constitutional Decision
Making, is a ACLU stalwart. In his 1989 Yale
Law Journal article, cited by George Will,
Professor Levinson admits his own embarrassment
at having to conclude from his research that
private gun ownership cannot be prohibited
– he must have hoped to find the opposite.
Yale Law Professor Akhil Amar, a visiting professor
of constitutional law at Columbia University,
is held in high repute by liberal constitutional
scholars. Yet Amar trounces the anti-gun states’
right theory, emphasizing again and again that
the Second Amendment guarantees the
right to arms to "the people," not
[W]hen the Constitution
means "states" it says so.… The ultimate
right to keep and bear arms belongs to "the
people," not the "states,"....
Thus the "people" at the core of the
Second Amendment [a]re [the] Citizens – the
same "We the People" who "ordain
and establish" the Constitution and whose
right to assemble...[is] at the core of the
First Amendment.... Nowadays, it is quite common
to speak loosely of the National Guard as "the
state militia," but [when the Second Amendment
was written]…"the militia" referred
to all Citizens capable of bearing arms. [Thus]
"the militia" is identical to "the
Are these eminent
constitutional scholars "gun nut simpletons,
[and] NRA propagandists"? Activist Michael
Kinsley doesn't think so.
a Michigan LawReview article by Professor
Don Kates, Kinsley wrote in an op-ed piece, February
8,1990, in the Washington Post:
If there is a reply,
the [gun] controllers haven't made it.... Establishing
that a flat ban on handguns would be [unconstitutional,]
Kates builds a distressingly good case.
Kinsley is distressed
because "a flat ban on handguns," preferably
all guns, is precisely what he wants. His article
Gun rants are unconvincing
(at least to me) in their attempts to argue
that the individual right to bear arms is still
as vital to freedom as it was in 1792. But
the right is still there. [Emphasis added.]
Two major contributors
to constitutional scholarship are neutral historians
with no personal interest in the "gun control"
debate. One is Professor Joyce Malcolm, a political
historian whose work on the English and American
origins of the right to arms has been underwritten
by the American Bar Foundation, Harvard Law School,
and the National Endowment for the Humanities.
In To Keep and Bear Arms: The Origins
of an Anglo-American Right (Harvard
University Press, 1994), Professor Malcolm writes:
The Second Amendment
was meant to accomplish two distinct goals....
First, it was meant to guarantee the individual's
right to have arms for self-defense and self-preservation....
These privately owned arms [emphasis added]
were meant to serve a larger purpose [militia
service] as well...and it is the coupling of
these two objectives that has caused the most
confusion. The customary American militia necessitated
an armed public...the militia [being]…the body
of the people.… The argument that today's National
Guardsmen, members of a select militia, would
constitute the only [emphasis hers] persons
entitled to keep and bear arms has no historical
Shalhope, a non-gun-owning intellectual historian,
whose interest is the philosophy of the Founding
Fathers, agrees. In the 1982 edition of the Journal
of American History, Professor Shalhope writes:
When James Madison
and his colleagues drafted the Bill of Rights
they ..firmly believed in two distinct principles:
(1) Individuals had the right to possess
arms to defend themselves and their property;
and (2) states retained the right to maintain
militias composed of these individually armed
citizen.… Clearly, these men believed that
the perpetuation of a republican spirit and
character in their society depended upon the
freeman's possession of arms as well as
his ability and willingness to defend both
himself and his society. [Emphasis
Kates put it, "Historical research shows
that our Founding Fathers out NRAed the NRA."
believed it would be better for "all the
world to lay [arms] aside...and settle matters
by negotiation" – "but unless the whole
will, the matter ends, and I take up my musket
and thank Heaven He has put it in my power."
doubted that criminals could be disarmed and deemed
it important that decent people be armed against
The peaceable part
of mankind will be continually overrun by the
vile and abandoned while they neglect the
means of self—defense..... [Weakness]
allures the ruffian [but] arms like laws
discourage and keep the invader and plunderer
in awe and preserve order in the world.... Horrid
mischief would ensue were [the good] deprived
of the use of them...[and] the weak will become
a prey to the strong.
Or, simply stated
– criminals prefer unarmed victims. Consider the
similar views of the great eighteenth-century
Italian criminologist Cesare Beccaria, which could
be described as an older rendition of today's
slogan "when guns are outlawed only outlaws
will have guns."
translated the following from Beccaria's Italian
and laboriously copied it in longhand into his
own personal compilation of great quotations:
False is the idea
of utility that sacrifices a thousand real advantages
for one imaginary or trifling inconvenience;
that would take fire from men because it burns,
and water because one may drown in it; that
has no remedy for evils, except destruction.
The laws that forbid the carrying of arms are
laws of such a nature. They disarm those only
who are neither inclined nor determined to commit
crimes. Can it be supposed that those who have
the courage to violate the most sacred laws
of humanity, the most important of the code,
will respect the less important and arbitrary
ones, which can be violated with case and impunity,
and which, if strictly obeyed, would put an
end to personal liberty-so dear to men, so dear
to the enlightened legislator-and subject innocent
persons to all the vexations that the quality
alone ought to suffer? Such laws make things
worse for the assaulted and better for the assailants;
they serve rather to encourage than to prevent
homicides, for an unarmed man may be attacked
with greater confidence than an armed man. They
ought to be designated as laws not preventive
but fearful of crimes, produced by the tumultuous
impression of a few isolated facts, and not
by thoughtful consideration of the inconveniences
and advantages of a universal decree.
unanimously agreed. "The great object,"
thundered Anti-Federalist Patrick Henry, "is
that every man be armed." James Madison,
Federalist author of the Bill of Rights, reviled
tyrants for being "afraid to trust the people
with arms" and extolled "the advantage
of being armed, which the Americans possess over
the people of almost every other nation."
endorsed Madison's Bill of Rights while claiming
it was their own idea. They characterized the
Second Amendment as a mere rewording of their
Sam Adams’ proposal "that the [federal] Constitution
be never construed to prevent the people who are
peaceable citizens from keeping their own
arms." The Federalist analysis said the amendment
confirmed to the people "their private arms."
the Right to Arms
Are there any limits
on either the kinds of arms the Second Amendment
guarantees or the kinds of people it protects?
nor children under eighteen, of course, have the
right to own arms – any more than they have the
right to vote. This restriction is based on solid
historical reasons. The National Rifle Association,
moreover, has for over seventy years supported
laws to prohibit gun ownership by these who have
been convicted of violent felonies. By the same
token, the NRA has for decades supported and helped
pass tough penalties to keep those who misuse
guns in prison where they belong. The NRA was
among the earliest and strongest proponents of
"Three Strikes and You're Out" laws
which would put repeat violent offenders in jail
Yet the anti-individual
rights crowd accuse the NRA of claiming the Second
Amendment guarantees guns for all including criminals-and
all weapons-including weapons of war like bazookas
and bombs. Such has never been the case, and there
is no reason for anyone to believe otherwise-the
facts have been available to all. Prominent constitutional
scholar Professor Stephen Halbrook has summed
pieces, tanks, nuclear devices and other heavy
ordinances," he said, "are not constitutionally
protected" arms which civilians have a
Second Amendment right to possess; neither are
"grenades, bombs, bazookas and other devices...which
have never been commonly possessed for self-defense...."
the right to arms does protect ordinary small
arms handguns, rifles, and shotguns – including
"assault weapons." Indeed, "assault
weapons" are just ordinary semiautomatic
firearms like those that have existed in this
country for over a century. They fire no faster
than revolvers or pump action rifles and shotguns.
As Rutgers law professor Robert Cottrol notes:
It has been argued
that "assault weapons" are far more
deadly than 18th Century arms. Actually, modern
medical technology makes them far less deadly
than blunderbusses were in the 18th
Century. (In fact, "assault weapons"
are less deadly – and far less often used in
crime – than ordinary shotguns or hunting rifles.)
and Don Kates agree that if the many changes in
conditions since 1792 when the Second Amendment
was enacted could justify ignoring it, other rights
protected by the Bill of Rights would also be
endangered: "changing times affect many
constitutional rights, not just the right to arms."
Take, for instance,
radio, TV, and the movies. These didn't exist
when the Bill of Rights was written, yet all three
are now embraced by its free speech and press
clauses. The Supreme Court enforces that stand.
The media's First Amendment rights we soundly
defended even though it is widely accepted that
they may exert far more influence than a book
or newspaper-even prompting some suggestible people
to commit violent acts.
By the same token,
sensationalized national network coverage can
spread new crimes. Car-jacking, first confined
to Michigan, caught on nationwide as other criminals
picked up on the idea. Freedom of the press in
our modern era has many other drawbacks, but we
continue to expand our constitutional free press
protections to cover new forms of disseminating
news and opinion.
To quote Professors
Cottrol and Kates:
If the Bill of
Rights is to continue, we must apply its spirit
even as conditions change. That is the nub of
the Second Amendment controversy: Modern intellectuals
who tend to feel self-defense is barbaric-that
government should have a monopoly of arms with
the people being dependent on it for protection
have difficulty accepting the Founders' diametrically
The Warren Court
had this to say when its decisions vindicating
the privilege against self-incrimination were
assailed as inconsistent with the government's
need to detect modern criminals and subversives:
If it be thought
that the privilege is outmoded in the conditions
of this modern age, then the thing to do is
to [amend] it out of the Constitution, not to)
whittle it down by the subtle encroachments
of judicial opinion. [Ulmann , United States,
350 U.S. 422, 427-8 (1956)]
Can an Armed People
Those who claim that
the only purpose of the right to arms is
to enable citizens to resist a military takeover
of our government sometimes argue that the Second
Amendment is obsolete since a populace armed with
only small arms cannot defeat a modern army. That
is doubly wrong. Even if overthrowing tyranny
were the amendment's only purpose, the claim that
an armed populace cannot successfully resist assault
stems from an unproved theory.
century provides no example of a determined
populace with access to small arms having been
defeated by a modern army. The Russians lost in
Afghanistan, the United States lost in Vietnam,
and the French lost in Indo-China. In each case,
it was the poorly armed populace that beat the
"modern" army. In China, Cuba, and Nicaragua,
the established leaders, Chiang Kai-shek, Battista,
and Somoza lost. Modern nations like Algeria,
Angola, Ireland, Israel, Mozambique, and Zimbabwe
only exist because guerrilla warfare can triumph
over modern armies. While we may not approve of
all the resulting governments, each of these triumphs
tells a simple truth: a determined people who
have the means to maintain prolonged war against
a modern army can battle it to a standstill, subverting
major portions of the army or defeating it themselves
or with major arms supplied by outside forces.
purpose in guaranteeing the right to keep and
bear arms was not merely to overthrow tyrants.
They saw the right to arms as crucial to what
they believed was a prime natural right-self-defense.
Those who claim
that the right to arms is outmoded tend to think
of armed personal self-defense as does former
Attorney General Ramsey Clark, who described it
as "anarchy, not order under law – a jungle
where each relies on himself for survival."
Inc. (HCI) chairperson Sarah Brady claims that
"the only reason for guns in civilian hands
is for sporting purposes," i.e., not self-defense.
"Pete" Shields, Brady's predecessor
as HCI head, in the book titled Guns Don't
Die, advised victims never to resist rape
or robbery: "give them what they want or
HCI has proposed a national licensing law confining
gun ownership to sportsmen-self-defense not being
considered proper grounds for ownership. In an
October 22, 1993, editorial, the Los Angeles
Times agreed. But author Jeff Snyder points
out in his essay, "A Nation of Cowards,"
in Public Interest Quarterly/Fall 1993:
As the Founding
Fathers knew well, a government that does not
trust its honest, law-abiding, taxpaying citizens
with the means of self-defense is not itself
worthy of trust. Laws disarming honest citizens
proclaim that the government is the master,
not the servant of the people....
The Bill of
Rights does not grant rights to the people,
such that its repeal would legitimately confer
upon government the powers otherwise proscribed.
The Bill of Rights is the list of the fundamental,
inalienable rights, endowed in man by his Creator,
that define what it means to be a free and independent
people, the rights which must exist to ensure
that government governs only with the consent
of the people.