NO gun confiscation

[Chris Alger]

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"A well regulated Militia, being necessary to the security of a free State . . ."

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The "obvious purpose" of the Second Amendment therefore has nothing to do with any rights of individuals to own or carry firearms but merely assures the "continuation" and "effectiveness" of state militias, the sole end by which the amendment "must be interpreted applied." So spoke the Supreme Court 66 years ago in United States v. Miller, 307 U.S. 174 (1939), a position that the Supreme Court, Courts of Appeal and numerous state courts have consistently echoed since then. Ever wonder why Bush hasn't said anything about appointing judges who adopt the gun nut interpretation of the Second Amendment, or why neither side much cares about Roberts' views on the Second Amendment? It's because everyone in power knows that the law is well-settled: the Second Amendment doesn't really do anything, least of all protect any indidual right to "bear arms."

Reiterating the point for the umpteenth time in 1980, the Supreme Court held that gun control laws do not "trench upon any constitutionally protected liberties." Lewis v. United States, 445 U.S. 55 (1980). See also Burton v. Sills, 394 U.S. 812 (1968) (finding lack of substantial federal question on grounds that Second Amendment permits regulation of firearms "so long as the regulation does not impair the active, organized militias of the states"); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) ("The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia"); Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996) (following "our sister circuits in holding that the Second Amendment . . . does not protect the possession of a weapon by a private citizen"); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) ("the right to possess a gun is clearly not a fundamental right"); Quillici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983) ("the right to keep and bear handguns is not guaranteed by the Second Amendment"); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) ("Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm"); Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir. 1973) ("it must be remembered that the right to bear arms is not a right given by the United States Constitution"); United States v. Cody, 460 F.2d 34, 37 (8th Cir. 1972) ("it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms").

The only notable decision to the contrary, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 US 122 (2002), actually upheld a gun confiscation law on the grounds that Texas had justified abrogating the right in the case before it. Judge Parker, concurring in Emerson's result while dissenting over the Second Amendment argument, noted that the court's analsysis of the Second Amendment was "dicta and is therefore not binding on us or on any other court."

As the term "militia" suggests, the notion of the Second Amendment conferring any individual right is laughable, so much so that the NRA itself rarely invokes the Second Amendment in it's various court challenges to gun control laws. No member of any military force, much less any particularly "well-regualted" one, has an individual right to "bear arms" in the time, place and manner of his or her choice. Even if one argued that all citizens should be considered de facto militia members, the states and federal government could easily enforce any gun regulation by giving gunowners a choice: surrender your weapons or report for drill every morning at five. Grenades, machine guns, fighter aircraft, tanks and nukes are all "arms," yet no one in their right mind doubts the Congress and the state legislatures have every ability to criminalize their possession by ordinary citizens. The same power extends to every form of gun.

U.S. POW's remain in North Vietnam; the oil companies have supressed the formula for turning water into gasoline; the Second Amendment ensures the "right to bear arms," and is, according to one NRA fundraising appeal, a target of a secret plot by Ted Kennedy and Diane Feinstein to repeal it.

Pray the Republicans can keep a lid on these crazies while they exploit them.