Taming the Gun Monster: Is It Constitutional? : Second Amendment offers no insuperable barrier to comprehensive national gun control

By now most readers know that The Times supports a near-total ban on handguns and assault weapons, leaving these weapons pretty much only in the hands of law enforcement authorities. Under The Times’ program--proposed in response to the gun epidemic that is devastating America in general and the Los Angeles area in particular--hunting rifles and sport guns would be kept only by licensed owners who have submitted to a background check and completed training in the safe use of those weapons.

This program--set forth previously in the first two in a planned series of editorials--prompted hundreds of readers to write in, most expressing support but others expressing opposition. Among those readers who oppose our call for a near-total ban on handguns and automatic weapons, a recurring argument is that the Second Amendment to the Constitution bars tough gun control. They read that amendment as conferring on citizens a right to have firearms. Thus, they say, Congress can’t pass stricter gun laws.

Theirs is a frequently used argument. It’s a powerful argument. It’s an important argument. But there’s only one problem: It’s a fallacious argument.

WHAT THE AMENDMENT DOES: In its entirety, the Second Amendment states: 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 .

Opponents of stronger gun restrictions maintain that this 27-word amendment confers on private citizens a largely unrestricted right to own a gun. Moreover, they contend that the drafters of the Bill of Rights created this right not merely for the convenience of 18th-Century hunters, or frightened 20th-Century urbanites, but rather as an indispensable element of the democratic tradition--to protect against government tyranny.

Indeed, the Second Amendment has created a significant political impediment to the passage of stronger gun control laws. Gun-ownership advocates argue not that Congress should not, as a matter of policy, enact such laws but rather that Congress cannot do so because the amendment ties its hands.

But did the drafters of the Second Amendment intend it to guarantee a right of all citizens to possess firearms? Many scholars who have analyzed the Constitutional Convention, the state ratification debates and subsequent Second Amendment jurisprudence answer “no.” They find, prior to the drafting of the amendment, precious little discussion of a right to have firearms for hunting, target shooting, self-defense or any other purposes unrelated to a state militia. The Second Amendment arose from the colonists’ fear of a standing army in the hands of a powerful central government. As they created that new central government--the United States of America--many drafters were unsure whether the states would retain the authority to maintain militias. The amendment responded to that concern and that concern only.

But after ratification of the Constitution and the Bill of Rights, states quickly demonstrated they were incapable of--and largely uninterested in--maintaining their own militias. One legal scholar notes, “The history of the state militias between 1800 and the 1870s is one of total abandonment, disorganization and degeneration.” States could not afford to arm their militias, and citizens became impatient with training and duty. States joining the Union had no Revolutionary militia tradition and even less enthusiasm, and money, for organizing their own units. Yet many felt that states should nonetheless retain a military capability.

So beginning in 1903 Congress passed the first of several acts designed to fund, equip and organize state militias. These federal efforts have resulted in the National Guard, the present-day state militias. States provide the armories and storage facilities, federal funds provide clothing, weapons and equipment, and the Army and Air Force supervise the training of Guard members. Because no state still requires its citizens to supply weapons for its militia, private weapon possession no longer bears any relationship to an effective militia.

However, many argue that the National Guard should not be viewed as the militia envisioned by drafters of the Second Amendment. They maintain that militia means unorganized private citizens with guns who could use them to rise up against a tyrannical government. Yet what is totally remarkable--and underreported and under-appreciated--is that federal courts have not agreed. In fact, the Second Amendment has inspired a remarkable degree of consensus among federal judges: The proposition that the Second Amendment does not guarantee individuals a right to keep and bear arms for private, non-militia purposes is among the more firmly established propositions in U.S. constitutional law.

Federal courts have not spoken out often on the issue of gun control--partly because Congress has passed relatively few laws on this subject compared to, say, interstate commerce. But when courts, including the U.S. Supreme Court, have ruled, they have consistently upheld a variety of firearm restrictions, even prohibitions.

DEFINING ‘MILITIA’: Beginning with a 1939 decision upholding federal restrictions on the possession of a type of shotgun popular with gangsters, the Supreme Court commented specifically on the meaning of the militia clause. In this case, United States vs. Miller, the court recognized the right of individuals to possess firearms but created the limitation that the firearms must serve the collective purpose. The court referred to the militia as “a body of citizens enrolled for military discipline”--not as an armed citizenry at large.

Subsequent federal decisions, including rulings in the last few years, consistently have held that federal statutes regulating firearms do not violate the Second Amendment unless they interfere with maintenance of an organized state militia. In practice, this analytical framework has meant that since 1939 no federal gun law has been found to be in conflict with the Second Amendment.

Instead, courts have upheld laws barring convicted felons from transporting guns in interstate commerce, requiring registration of machine guns, imposing licensing and record-keeping requirements on gun dealers and prohibiting firearm purchasers from providing false statements, and even an Illinois ban on possession of most handguns. In these cases, the courts have held that the Second Amendment guarantees a “collective right,” not an individual one.

Is the Second Amendment a barrier to tougher federal gun laws? No federal court in this century has suggested that private ownership of firearms by members of the “sedentary” or “unorganized” militia is protected by the amendment. Instead, federal courts, including the Supreme Court, offer scant solace to absolutists’ claims about the right to bear arms.

FLOW OF JUDICIAL HISTORY: Would a near-blanket handgun and assault weapon ban of the sort The Times proposes be upheld if challenged, as it surely would be? No one can unfailingly predict what any court would decide on any issue, and courts sometimes switch directions dramatically. But if the long jurisprudential history of the Second Amendment is a guide, and it often has been, there is a better than fair chance such a ban would prevail.

Very little in the Constitution is absolute. What’s offered is a set of checks and balances, some assurance that the pursuit of happiness can flourish in an environment of relative predictability and justice. Constitutional amendments, because they rarely are absolute, are continuing grist for judicial interpretation. Consider the First Amendment, which provides for a measure of freedom of speech, religion and the press. Those guarantees aren’t absolute: While given a wide berth, religion and the press both have to operate within certain limitations. Neither was the Second Amendment designed to be absolute. It does not guarantee a right to bear arms. It certainly was not intended to permit this nation to engage in the deadly firefight that is slaughtering its people.

Next: The European experience and national gun control.