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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Thursday, June 20, 2002
11:02 PM

Letter-writer Heidi Li Feldman gets the Second Amendment wrong in a combination of wishful thinking and missing the point. She's responding to John Lee, who rightly notes that the Supreme Court did not confer the right to bear arms only to citizens enrolled in state militias, as I noted on that sunny, happy day.

Feldman writes the Post:

The Supreme Court decided that the "obvious purpose" of the amendment was "to assure the continuation and render possible the effectiveness" of state militias, and "it must be interpreted and applied with that end in view."

Heidi! See what happens when you don't read PostWatch! And don't go to any blogger parties like this either! You are the militia, Heidi; the state doesn't have a thing to do with it, nor did the Supreme Court say so in Miller.

She continues:

Courts throughout our country's history have consistently interpreted the Second Amendment as solely protecting a right to "bear arms" in a militia. For example, the Georgia Supreme Court explained in 1874 that the Second Amendment "guarantees only the right to keep and bear the 'arms' necessary for a militiaman." The Tennessee Supreme Court explained in 1840 that the term "bear arm" has a "military sense, and no other. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms." The suggestion that the Second Amendment protects an individual right to possess guns is a fiction created by the gun lobby to overturn reasonable gun laws enacted by our elected representatives

As they say in the Hertz commercials, not exactly. Take it away, Glenn Reynolds:

For the first 100 years of the republic, there was little dispute that the Second Amendment guaranteed individual citizens the right to own guns, in part as a check against tyranny. James Madison wrote in The Federalist No. 46 that a takeover by an army controlled by the government would be opposed by “a militia amounting to near half a million of citizens with arms in their hands.” Noah Webster (a political thinker as well as a dictionary editor) echoed this point: “The supreme power in America cannot enforce unjust laws by the sword,” he wrote, “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 pretence, raised in the United States.”

State courts carried this idea into the 19th century, often relying on their understanding of the Second Amendment in the federal Constitution to interpret similar provisions in state constitutions. In the 1840 case of Aymette v. State, for example, the Tennessee Supreme Court concluded that the state constitution’s right-to-arms clause protected an individual’s right to own military-type weapons, but not concealed knives. The court compared the provision to the federal Constitution’s Second Amendment, with one of its purposes being “to keep in awe those who are in power.”

Lower courts did start to twist the 1939 Miller case into the what is now the Jane Brady version of the Constitution, inventing the requirement of membership in a state militia.

Brother Glenn:

As the northern United States was flooded with immigrants and the South became concerned about its ability to control large numbers of black people, still restive under the yoke of Jim Crow, gun control emerged as a way of trying to control the population. In order to justify disarming undesirable segments of the populace, “respectable society” needed a new theory showing that the Second Amendment belonged to the states, not individuals.

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