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PostWatch: An irregular correction to the Washington Post

Brought to you by Christopher Rake


Thursday, June 13, 2002
2:03 PM

The Post's Neely Tucker and Arthur Santana still misrepresent the history of the Supreme Court's Second Amendment jurisprudence in this story about the legal strategy being pursued by criminal defendants trying to take advantage of the Justice Department's position affirming the right of individuals to bear arms. In today's story:

The U.S. Supreme Court ruled in 1939 that possession of a sawed-off shotgun is not required by a state militia. That decision has been interpreted by lower courts as not conferring to individuals a constitutional right to bear arms.

The phrase "by a state militia" is the error here. As Eugene Volokh says in this Wall Street Journal column,

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.

Got it? Everybody's the militia, especially now that black people and women are everybody too.

Tucker and Santana have improved on their earlier reporting, as I noted May 30. In this story," they said:

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.

This has since been corrected in their subsequent stories, where they accurately say it was lower courts that have interpreted the ruling as denying an individual right.

So that's progress, but 1), it would have been nice to see an explicit correction and B), they need to let go of the "state militia."

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