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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Thursday, May 30, 2002
8:53 AM
Neely Tucker and Arthur Santana report that two people charged with gun possession in the District of Columbia are challenging their arrests on Second Amendment grounds, specifically the government's return, under John Ashcroft's Justice Department, to the position that it applies to individuals. Tucker and Santana quote several observers who say DC's law invites a showdown under those circumstances, as predicted by Glenn Reynolds. But they continue to give the impression that Ashcroft is pushing some kind of personal hobby-horse. And they continue to misinterpret what the Supreme Court actually said in 1939, which apparently is the only time the Supremes have addressed the issue in more than six decades.

Tucker and Santana:

The Second Amendment -- "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" -- was interpreted by the U.S. Supreme Court in 1939 to apply only to militias and not to individuals.

Nope--not if you hold, as Tucker, Santana, the Post and most media elites do--that "militias" are basically formal state-organized armies. As Eugene Volokh wrote recently in the Wall Street Journal:

The 1939 U.S. v. Miller decision did say that the right extends only to arms that are related to the militia. But it also specifically stressed that "militia" meant "all males physically capable of acting in concert for the common defense," and that ordinarily "these men were expected to appear bearing arms supplied by themselves...In fact, from the late 1700s to the early 1900s, the individual-rights view of the Second Amendment was the nearly unquestioned interpretation. Virtually no court or commentator of that era reasoned that the Second Amendment protects the rights of states. Attorney General Ashcroft and Solicitor General Olson are hardly promoting their personal views. They're promoting the views of the Framers, and of the American legal system throughout most of American history.."

In short, the Miller decision permitted the banning of a sawed-off shotgun, not because there was no individual right to bear arms, but because it was not necessary armament for the militia--which is all of us. It's true that for many decades now, other courts have misinterpreted Miller to say what it doesn't say. Time to fix that.

Glenn Reynolds comments on today's story.

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