IV.   MODERN DEVELOPMENTS SINCE THE BILL OF RIGHTS

Since the adoption of the Bill of Rights, Second Amendment issues have rarely ever reached the steps of the Supreme Court. Nevertheless, there has been much debate both on the right to keep and bear arms and on self-defense in general. Today, the right of self-defense is understood quite differently than when the nation was founded. According to many, self-defense is no longer an unalienable right, an assumption which has led to many wrong interpretations of the Second Amendment. This chapter discusses four common errors which occur in the Second Amendment debates.

The Second Amendment as the Source of a Right

In justifying the right to keep and bear arms, many scholars are very dependent upon the language of the Second Amendment. For example, Joyce Malcolm asserts that, "Few would disagree that the crux of the [right to keep and bear arms] controversy is the construction of the Second Amendment."¹³⁶ The American Bar Association agrees. They state that the heart of the debate over the right to keep and bear arms is the "construction of the Second Amendment."¹³⁷

The problem with placing the emphasis upon the language of the Amendment, and not the natural right of self-defense, is that the text becomes the primary expositor of the right to bear arms. To make the text the "crux of the controversy" assumes that the Second Amendment is a grant of power; that it gives people the right to keep and bear arms. This presents two problems, the first of which is an overemphasis upon the "framers' intent."¹³⁸ After all, if it is the text that gives people the right to bear arms, then one would certainly want to know the intent of those who drafted the text. But while the intent of the framers is important, it should not be the heart of the debate because the right to keep and bear arms is rooted in a firm foundation which precedes the "framers' intent." That foundation is the unalienable right of self-defense, which in the language of the Declaration, is a right "endowed by the Creator."

If the right to keep and bear arms stems solely from the intent of the Congress that enacted the Amendment, then that right will not be secure for long. A government which has the power to grant a right has the power to revoke the same -- including the right of free speech, free assembly, free press, etc. On the other hand, a God-given right will be much more secure. Since the unalienable right of self-defense is given by God, it cannot be revoked or weakened by government. As long as there is evil in the world, and there are evil people using guns, the right to have arms will be necessary to secure one's self-defense.

Therefore, the real crux of the controversy is, who gives man his rights: the Creator or the government? If self-defense is a God-given right, then it cannot be depreciated or annulled by the government. Self-defense must be the starting point for any discussion of the right to keep and bear arms.

A second problem which results from deriving the right to bear arms from the language of the Second Amendment is that the role of history will be overemphasized. One scholar states that "if the crux of the controversy is the construction of the Second Amendment, the key to that construction is the English tradition the colonists inherited, and the English Bill of Rights from which much of the American Bill of Rights was drawn."¹³⁹

Granted, a good historical argument has its place, but it should not be "the key" to unlocking the meaning of the Second Amendment. Otherwise, one might assume that the right to keep and bear arms simply evolved out of the Anglo-American past. On such an assumption, one may completely overlook the important right of self-defense, which is at the heart of the right to bear arms.

For example, the National Coalition to Ban Handguns stated in 1982 that "the American 'right to bear arms' developed at the time of the revolution." Furthermore, they claimed that the right "grew out of the duty imposed on the early colonists to keep arms for the defense of their isolated and endangered communities."¹⁴⁰ The assumption here was that the right to bear arms only existed because the colonists were living in "isolated and endangered communities," and the government had "imposed" the duty of self-defense upon them. In other words, the right to bear arms was completely dependent upon the circumstances.

John Levin has also advanced this very position: "After over three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant."¹⁴¹ Levin's statement was based on the same assumption as the one by the N.C.B.H. They both assume that the right of personal self-defense can evolve as the times change. Individuals may have the right of self-defense in one century, but may loose that right in the next.

If rights change with the times, however, then all our rights are in danger -- including the right of a free press, assembly, speech, etc. Arguing that an efficient police force makes the right to have arms "anachronistic" is like arguing that a government's efficient use of print and electronic media makes the right of free press "more irrelevant."

But natural rights do not change with time; nor are they dependent upon the circumstances. They are gifts from God; unchanging and irrevocable. Self-defense is an unalienable right, and the right to bear arms is necessary to secure this right.

Again, self-defense is the crux of the issue. But this time the question is, who gives man his rights: God or history?

A Collective Right

Since the drafting of the Bill of Rights, there have been three predominant views concerning the Second Amendment. The first view said that the right to keep and bear arms was an individual right. This was first expressed in James Madison's notes, which stated that the amendments "relate 1st. to private rights."¹⁴²

This theme was also expressed in the Dred Scott decision, where the court enumerated some of the rights which belong to every American citizen. The Court in this decision projected that if blacks were to become citizens of the United States, they would be entitled to the same rights as everyone else. The Court stated that to recognize blacks as citizens,

would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased. . . . [A]nd it would give them full liberty of speech in public and in private . . . to hold public meetings upon political affairs, and to keep and carry arms wherever they went.¹⁴³ (Emphasis added.)

The second view of the Second Amendment arose after the Civil War. This view recognizes that every citizen can keep and bear arms, but the weapons possessed must be able to be used for militia purposes. This view was expressed in U. S. v. Miller, 307 U. S. 174 (1939).

In this decision, the Court recognized that every citizen had a right and duty to have arms. The Court stated,

The signification attributed to the term Militia appears from the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense . . . [a]nd further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (Emphasis added.)

The Court, however, said that the weapons protected by the Second Amendment must fit a militia purpose:

In the absence of any evidence tending to show that possession or use of any "shotgun having a barrel of less then eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The third view of the Second Amendment limits the person and the weapon to militia duty. That is, the right to keep and bear arms applies only to members of the militia. Or to put it more broadly, this right applies to only the police, the militia on duty and the army.

While this view has not been espoused by the Supreme Court, it is very popular at the state level, as well as in the law journals. For example, in 1976 the Supreme Court of Massachusetts stated that the Second Amendment "is not directed to guaranteeing the rights of individuals." Rather, the "Second Amendment to the Constitution is to be read as an assurance that the national government will give the state militias some freedom from national interference."¹⁴⁴ In other words, the Second Amendment only gives members of the militia the right to keep and bear arms.

Similar to the Massachusetts Supreme Court, the National Coalition to Ban Handguns states that the Second Amendment only refers "to the people's collective right to bear arms as members of a well-regulated and authorized militia. . . . [T]he Second Amendment does not guarantee an individual right to bear arms."¹⁴⁵ (Emphasis added.)

This is the controversy today: is the right to keep and bear arms a collective or an individual right? In reality, the collective rights view is better labeled a "state rights" view because the proponents of this view apply the right to keep and bear arms to the state. For example, Roy Weatherup, a collective rights proponent, asserts that the Second Amendment "was designed solely to protect the states against the general government, not to create a personal right which either state or federal authorities are bound to respect."¹⁴⁶

There are two problems if one chooses to side with the collectivist camp. First, the collective view is guilty of equivocation. If the right of the people only refers to the people as a collective whole, or to the states in exclusion of the people as individuals, then the same must be said of the rights of the people in the First, Fourth, Ninth and Tenth Amendments. But because no one is willing to argue that individuals do not have a personal right to peaceably assemble or to petition their government, then one cannot dismiss the guarantee of individual protection in the Second Amendment.

More importantly, the collective view prohibits individuals from keeping and bearing arms, which in effect, denies citizens the best means of personal self-defense. "Collective right" advocates wish to transfer the duty of self-defense from the individual to the collective whole; this is an outside-in approach to self-defense, and it is contrary to the laws of nature and of nature's God. The authority of self-defense, as well as the means to secure it, originates in the people, not in the government.

The National Guard as the Militia

"A 'well-regulated militia, " says the National Coalition to Ban Handguns, "is [today] represented by the National Guard."¹⁴⁷ This statement reveals the current majority view concerning the militia. Most people would argue that the militia of the Second Amendment is the National Guard.

This is not the case, however. One year after the Second Amendment was added to the Constitution in 1791, Congress provided for the national defense by regulating the militia. The Militia Act of 1792 declared that every white, male citizen between the ages of 17 and 45 was to be a member of the militia. Furthermore, every citizen was to be armed. The Act stated that "every citizen so enrolled . . . [shall] provide himself with a good musket, or firelock, a sufficient bayonet and belt, two spare flints..."¹⁴⁸

Every citizen, as a matter of self-government, was seen to have a duty to defend his state and his country. There was no National Guard at this point. Everyone was to be armed and ready to fight. In 1824, the Seventh Regiment of the New York State Militia assumed the title of "National Guards." This title became popular after 1878 with the founding of the National Guard Association of the United States. At this time, the organized militias of the several states became known as the National Guard.¹⁴⁹

The Dick Act of 1903 officially recognized the National Guard and separated the militia into two classes: the organized militia and the unorganized militia. The organized militias were the National Guard militias in every state. The unorganized militias were made up of everyone else, that is, everyone of age between 17 and 45.¹⁵⁰

The National Guard Act of 1933 made the organized militia a part of the United States Army. The Act declares that, "the federally recognized National Guard shall at all times, whether in peace or war, be a component of the Army of the United States."¹⁵¹ The National Guard, however, did maintain its militia status. The Act states that "the National Guard as created and existing under the present National Defense Act is the Organized Militia of the States. . ."¹⁵²

Clearly, the National Guard was never intended to fully comprise the militia -- neither in the 1700's, nor at the present time. This is affirmed in the United States Code. It states unequivocably that, "The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age."¹⁵³ The U.S.C. then reaffirms the previous Congressional acts by dividing the militia into the unorganized and the organized militia.

The problem with this classification is that it forms a select militia -- the National Guard. (A select militia is a small core of men who bear the brunt of the militia duty.) Most founding fathers disliked select militias because they denied man's self-governing nature.¹⁵⁴ Defense, by nature, was seen to be the duty of every individual. A select militia, however, delegated this duty to a select few.

Richard Henry Lee, who was a signer of the Declaration of Independence, a delegate to the Virginia state convention, and one of the first U.S. Senators, was very outspoken concerning the evils of a select militia. Lee believed that,

To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . . . The mind that aims at a select militia, must be influenced by a truly anti-republican principle.¹⁵⁵

Why anti-republican? Because the issue of equality was at stake. A select militia, established by law, would produce apathy in the general public. By fiat, this would create a special class of citizens who were entitled to bear arms. But Lee argued that to preserve liberty, the general public must be armed. Everyone must be armed and equally prepared.

George Mason stated that the best way to disarm and thus to enslave the citizenry was "by totally disusing and neglecting the militia."¹⁵⁶ And the best way to disuse and neglect the militia, according to Lee, was to maintain a select militia. "Establishing a select corps of militia," he stated, tended "to render this general militia useless and defenseless."¹⁵⁷

An unprepared and defenseless citizenry is the consequence of denying the law of self-defense. This law operates from the inside-out, which means that every citizen is responsible for the defense of their state. As self-governed individuals, citizens should not delegate this important duty to someone else. To do so might cause the people to lose their vigilance, and once vigilance deteriorates, liberty will soon follow the same path. As Wendell Phillips once said, "Eternal vigilance is the price of liberty."¹⁵⁸

An Outside-in Mentality

Another problem is that many legal scholars have adopted an outside-in approach toward self-defense, that is, they assume that only the government should defend the people. For example, the American Civil Liberties Union (A.C.L.U.) states that "Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."¹⁵⁹ But if individuals do not have a right to bear arms, as is suggested by this statement, then they will have to rely on the police and military for their protection. The assumption here is that the the authority for self-defense originates in government, not the people. The A.C.L.U. denies the truth that individual self-defense is both a fixed law of nature and an unalienable right that is "endowed by the Creator."

There are serious repercussions for ignoring the laws of nature. If one ignores the law of gravity and walks off a building, tragic consequences will result. And if a government ignores the natural right of self-defense by denying its citizens this right, tragedies will also result.

Several U.S. cities have passed gun control laws and thus hindered the peoples' ability to defend themselves. One such city, Washington, D.C., has very strict gun control laws. As a result, the District of Columbia has forced its citizens to rely upon the police for their protection. The inside-out principle has been inverted so that now the government exercises the primary duty of self-defense. Consequently, there have been tragic effects.

For example, Warren v. District of Columbia, D.C. App., 444 A. 2d 1, (1981), involved a case where a woman was gang raped for 14 hours. This was done even though she had phoned the police twice before they broke into her apartment. The police never arrived. Ms. Warren sued the District of Columbia for negligence in providing for police protection, but the court ruled in favor of the District, stating that the "Government and its agents are under no general duty to provide . . . police protection, to any particular individual citizen, but, rather, duty to provide public services is owed to public at large."

This case is not mentioned here to point the finger at the police. Human error will always occur. The point to emphasize, however, is that a reliance upon an outside-in approach to self-defense is contradictory to the laws of nature, and it is bound to bring tragic consequences. Warren v. District of Columbia is an example of such a tragedy. A woman is told that the police have no duty to protect her as an individual, and yet the laws of her city prevent her from adequately protecting herself.¹⁶⁰

V.   CONCLUSION

Self-governing individuals are primarily responsible for their own defense. This is a law of nature which in recent years has been ignored by legal scholars who, as a result, have adopted a view similar to that of King George III -- a view which attributes the original authority for defense to the government.

At the heart of this controversy is a view of law. The founding fathers believed that law was both fixed and God-revealed. Furthermore, they believed that it was their duty to codify these pre-existing principles in their legal documents.

On the other hand, today's legal scholars view law as evolving, always changing. Law is not seen as God-given, but is what a majority or the state says is law. The duty of the legislatures today is not to codify pre-existing principles, but to create laws that will reach a desired result.

This evolving view of law has led to the belief that self-defense is a duty for military and police bodies, not for individuals. This view is argued by John Levin who states that,

As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; and . . . [as] the military power in the hands of the government [becomes] more powerful, and the government itself more responsive, the right to bear arms becomes more futile, meaningless and dangerous.¹⁶¹

His assumption is that an outside-in approach to self-defense is a valid alternative to the inside-out principle. This assumption, which is prevalent in many writings, is justified for several reasons. Levin assumes that an outside-in approach is more efficient. Others assume that an outside-in approach will reduce crime. They argue that fewer weapons in the hands of individual citizens will bring about a decrease in the crime rate.¹⁶² Still others say that gun control is necessary to reduce dangerous accidents.

The one theme in common with all of these arguments is that they all are striving for a desired effect in society. One person wants efficiency, while another wants crime control. In effect, each uses the law as an instrument for social control, but in total disregard to the law of self-defense which works from the individual-outward.

The implicit assumption is that man, with his own unaided reason, can devise laws which will improve society, even if those laws run contrary to the laws of nature. This assumption requires faith; a faith unsupported by good and sufficient evidence; a faith that runs contrary to the reasonable faith of the founding fathers. In the Declaration of Independence, the founders did not appeal to pragmatism, or to the desired effect they hoped to achieve in society. They appealed to a higher law, a law given by God which they termed "the Laws of Nature and of Nature's God."