SANTA BARBARA COALITION AGAINST GUN VIOLENCE
POSITION ON THE SECOND AMENDMENT

(Evaluation thereof, April 30, 2000)

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The material in the left part of the following table is quotations of a web page from the Santa Barbara (California) Coalition Against Gun Violence, which was the Santa Barbara Women Against Gun Violence until they were joined by some naíve men.  The material includes their entire web document and is in exactly the same sequence as that on their web page, but includes some brief comments--in bracketed italics--and markup (deletions and bolding) by GunsAndCrime.org.  Also, sentences of their material are broken out from the paragraphs they were in, and quoted separately, to facilitate correlation of evaluation in the right side of the table with the respective parts of their material.  Read straight down the left column as desired to see how the coalition statements fit together, but read first a left-column block then the adjacent right-column block while reading the critique of the coalition statements.

Coalition Statements GunsAndCrime.org Replies
Last updated
December 3, 1999
The Second Amendment

What The Second Amendment Really Says

"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."--The Second Amendment
 
"The Second Amendment has been the subject of one of the greatest piece of fraud, I repeat the word, 'fraud', on the American public.  The distortion of the intent of the framers of the Bill of Rights by the gun lobby is glaring, as they focus their argument on the last half of the amendment, while ignoring the first half, on which it was based".--Former Supreme Court Chief Justice Warren E. Burger (1991) As though this man who never even heard a 2nd Am. case were an authority on the subject.  He never had the courage to write about the subject in a law journal where he would have been ridiculed for his ignorance and willingness to open mouth in ignorance.  And he and other gun control advocates focus on the dependent clause & ignore the independent, main clause.
Is There A Constitutional Right To Own A Gun?

*According to the National Rifle Association (NRA) and other opponents of [allegedly] rational firearms control measures, the Second Amendment guarantees the absolute right of every American to privately possess firearms without restriction.  Although this interpretation is accepted as fact by many Americans, it has absolutely no basis in law. To the contrary, nearly 100 years of uncontradicted legal precedent make clear that the Second Amendment only protects the right to keep and bear arms in connection with service to an organized state militia.

Can one expect to find truth in a document that takes every opportunity to bias, as in the first sentence?  Actually, the NRA doesn't claim that the right is absolute for every American, without restriction because they know:  that every constitutionally guaranteed right may be reasonably limited; that the right applies to weapons like those carried by the individual soldiers of an army; and that, in the debates that preceded the amendment, it was stated and generally accepted that the right would not apply to criminals.  Also, legal precedent does not say the right is only about "service to" or about "organized" or "state" militia.  Only 1 appeals court decision (U.S. v. Hale, below) asserted this, not the Supreme Court.
In support of its interpretation, the ["evil"] gun lobby focuses exclusively on the words of the second half of the Second Amendment - "the right of the people to keep and bear arms shall not be infringed" - omitting all reference to the first phrase - "A well regulated Militia, being necessary to the security of a free State" - even though that language clearly links the right to bear arms to a "well regulated Militia".  Based on this distortion of the constitutional text, the gun lobby insists that the Second Amendment is a barrier to virtually all proposed firearms regulations. Actually looking at gun-rights organizations' statements show that they have considerable discussion of the first half of the amendment re. the "well-regulated militia."  Also, their information about proposed "regulations" shows that the 2nd Am. is not the basis used for objecting to most of them.  Go to their web sites or get their literature and check for yourself.  It should be obvious to the reader that you should not simply accept what the gun control advocates say.  Note how the analysis uses the word "regulations" where what they're really talking about is laws.  This is to condition the reader to mistakenly think that these laws are the "well-regulated" of the amendment.
The gun lobby has led many Americans to believe that rational gun control regulations are unconstitutional, significantly undermining [ill-conceived] efforts at the federal and state level to address [in counter-productive ways] the national epidemic of gun violence.  However, the Second Amendment is not a barrier to laws regulating the private use, sale or ownership of firearms, whether enacted by federal, state or local governments. Sure, their "regulations" are all "rational" and "common sense" and "reasonable."  Again, every time they say gun control, they'll use some adjective to make the reader think that, naturally, they're all good proposals or laws.  Note how they use the word "epidemic" in relation to something whose frequency is actually declining.  This is so they can help convince the public to pay attention to propaganda developed by a medical community that is totally unqualified to do or say anything about firearms.

Historical Context

When analyzing the Second Amendment, it is useful [absolutely essential] to [fully] understand the historical context in which it was written.  Prior to the adoption of the U.S. Constitution, each of the states operated independently under the Articles of Confederation. [They were countries.]  Each state had its own "militia" composed of ordinary citizens serving as part-time soldiers to protect against external threats and internal insurrection.  Individuals serving in the militia were required to supply their own equipment, including horses and guns, for militia use.

Not entirely true.  The militia did not belong to the states and there was really only one militia, the militia.  It was not composed of ordinary citizens.  It was the ordinary citizens.  Looking at writings of the time, including the "Federalist Papers," reveals that the word "militia" was used in the same way the word "people" was used and is still used--that is, as a collective term.  There was only one "the people," and there was only one "the militia."  Thus, each state had its (part of the) militia in the same sense as it had its own (part of the) people.  But this did not mean that the militia or the people were owned by the states.  When there was some danger, those who knew of it would spread the word and all of them that knew of it would come running to join forces and deal with the danger--usually criminals, not "insurrection."  The citizens were expected to be responsible citizens, and some of the countries ("states") required this of their citizens.  The citizens were required to supply their own stuff only in the sense that nobody else did it for them and the states did not usurp the responsibility of men to bear arms.
The U.S. Constitution, as originally drafted, established a permanent army of professional soldiers controlled by the federal government. It did not!  It provided for the possibility of armies being established at the pleasure of the Congress.  Specifically, the Constitution authorized Congress to raise and fund armies (and still does).  There was then great disdain for standing armies, so their intent was that an army would be created only temporarily whenever some great need occurred.
When the Constitution was sent to the states for ratification in 1787, the continued existence of the state-run [not] militia was in question.  Many colonial leaders, with the memory of British tyranny fresh in their minds, mistrusted centralization of power. [and permanent ("standing") armies]  Although they saw the continuation of the state militia as an effective counterpoint to the power of the [a] standing army, these leaders were concerned that the federal government had [would have] excessive control over the militia.  
In The Federalist #46, James Madison, the principal author of the Bill of Rights, defines the militia as a military force "conducted by {state} governments". LIE!!.  The statement there is not a definition.  It simply said that the militia would be "united and conducted" in a certain instance--that being the case of a federal army trying to subjugate a state and its citizens.  The statement did not use the word "is" as a definition would.  There is not a definition of "militia" anywhere in all of the Federalist Papers.
However, there were definitions given by statesmen of the time, both in articles and in speeches about the proposed constitution.  These all defined the militia as being pretty much the same thing:  all armed men, or essentially all men since almost all men had weapons.  The Legal Community Against Violence, upon whose material this propaganda is based could have known this easily if they truly are students of the Second Amendment.  The information exists in many publications on the subject.  If they really know enough to say something authoritive about the Second Amendment, they would know about these definitions.  They or the coalition (in its "editing" of the material) must therefore not know much or not want the public to know about the definitions and all the other material in those sources that disproves their propaganda.  When a group obviously lies, as in referring to the Madison statement as a definition, why would anyone think anything they say should be believed?  Also, "conducted by" didn't mean "run by."  It meant "orchestrated."  The militia existed in each state, and the state governments controlled it somewhat for the benefit of the whole public.
This state-run militia, he argued, would counterbalance the power of the [any] federal army.  Thus, the Second Amendment was written to ensure that every state would have the ability to maintain its own militia.  It was not, as the gun lobby argues, intended to establish an unlimited, private right of gun ownership or possession.  If the drafters of the Bill of Rights had intended to guarantee such an individual right, they could (and would) have done so. Absurd claim.  Had the intent been to put a state right in amongst nine guarantees of individual rights even though all references to the Bill of Rights by everyone at the time were in terms of them guaranteeing individual human rights, they could simply have said "the rights of the states to have militias shall not be infringed"!  Why would they refer to "the people" when every other reference to "the people" in the Constitution refers to the population of individual people?  An understanding of the Second Amendment may be gained only by studying a number of documents from the period, including the words of statesmen, the documents by earlier authors which they had studied, the constitutions of the countries before they combined into the United States, the state constitutions that were written immediately after, and the states' court cases about those constitutions.  People truly qualified to talk about the meaning of the Second Amendment have done this.  The coalition, or the "Legal Community" on whose document this coalition document is supposedly based, obviously has not--or is purposely trying to mislead the public.
Although some organizations & people in the "gun lobby" seem to think the 2nd Am. guarantees an unlimited right, they do not include the NRA.
What the Second Amendment does is define limitations of the federal government's right to restrict--as opposed to a state's right to maintain--a "well regulated militia".  Its purpose is to give the states responsibility and guarantee their right to train, maintain and to "keep and bear arms" for militias composed of state residents available to be called upon should there be a threat to security. So, why was that not put in terms of a change to Article I, Section 8, of the Constitution (which already dealt with the subject)?
The modern militia was officially created by the National Guard Act of 1902, in which all state militias were formalized under the authority of the National Guard. Untrue.  The militia has not changed since colonial days.  All that's happened since then is that: various parts of them have been categorized into different classes; the public has mostly stopped doing its militia duty; and the public has consequently lost understanding of the militia concept.  The militia was categorized into an "organized" militia plus the "unorganized" militia which was like the original.  The National Guard (and Naval Militia) became defined as the "organized" militia because the U.S. gave up the idea of keeping all adult males organized.  But, the "militia" of the Constitution hasn't changed at all.
Gun rights advocates argue that since the militia included most able-bodied men, the militia is now everyone. Untrue.  What the "militia" is now is irrelevant.  The 2nd am. must be interpreted in view of what the militia was at the time of the amendment's writing.  The militia of the Constitution is the armed citizenry.  The fact that someone re-defined "militia" in the 1900s does not change the meaning of the Constitution!  If it could, then the Constitution could be changed willy-nilly or accidentally just by people changing definitions of words used in the Constitution.  If the govt, supposedly operating under the authority of the Constitution, could change the meaning of the Constitution by passing a law that didn't conform to the Constitution, the Constitution would no longer be the supreme law of the land.
However, because laws regulating firearms do not interfere with the modern militia, no gun control law has ever been overturned by the federal courts on Second Amendment grounds. The real reasons are that there have been few attempts based on the 2nd am., and because lawyers know that many judges know as little about the amendment as the authors of this propaganda.  Nothing about the "modern militia" has anything to do with the meaning of the Constitution and Bill of Rights, which were penned and ratified long before it existed.
Judicial Interpretation

Legal history demonstrates that the Second Amendment is not a barrier to reasonable gun control laws.

Stupid.  There is essentially no history to demonstrate this, but none is really needed.  The 2nd am. truly is not a barrier to truly reasonable gun control laws.  Please let us have just the ones that are based on fact and reason, rather than emotion!
Six [1, actually] Supreme Court and forty [irrelevant] lower court decisions have reaffirmed that there is no right of an individual to own a gun, and that it is a collective right of the militia, not the individual.CITE THEM!  And don't bother with Podunk court cases.
The Supreme Court rarely speaks in this area and when it does, it begins with the idea that the Second Amendment protects a state's right to keep arms for the militia.Not according to the info that follows re. major legal decisions.
Historically, the legal and judicial view has been that the Second Amendment only guarantees a state's right to be armed, with no explicit reference to the individual. Let's see about that below.
Major Legal Decisions On Gun Laws

U.S. v. Cruikshank-1876,The right to bear arms "is not a right granted by the Constitution" or by the Second Amendment, which the Supreme Court says restricts the power of Congress--but not the states--to regulate firearms.

Even though the 14th Am., ratified only a few years before, said otherwise.  Maybe the case arose before that ratification, or the plaintiff's counsel just didn't know about the amendment so he didn't know to raise the issue.
U.S. v. Miller-1939, A defining U.S. Supreme Court case.  Miller stated that restrictions on a sawed-off shot gun violated a person's Second Amendment rights.   The U.S. Supreme Court considered a Second Amendment challenge to the prosecution of two individuals who transported a sawed-off shotgun in violation of the ['34] National Firearms Act. Miller, his associate and their legal representation did not state such in front of the Supreme Court.  Arguments were given to the court only by "the people" because Miller and his associate had already made themselves "scarce" after the lower court had agreed with them that the law was unconstitututional.  Actually, it considered a govt. appeal of a lower court having found the two people not guilty on Second Am. grounds.
The court held that the "obvious purpose" of the amendment was "to assure the continuation and render possible the effectiveness" of the state ["of such forces" as the] militia, and that it "must be interpreted and applied with that end in view." It did not say state militia.  It said, "such forces" and later defined the militia that were such forces.
Because there was no evidence that possession or use of a sawed-off shotgun had any "reasonable relationship to the preservation or efficiency of a well regulated militia," the court found that the Second Amendment had not been violated. "No evidence" had nothing to do with it.  Nobody represented Miller and his associate to present any evidence.  There was nobody who had any interest in preserving the 2nd Am. there to lay any arguments upon the court.  The world was essentially unaware the case was in process.  Yet, the judges did some good research.  And the court did not find that the Second Am. had not been violated.  What it said was that the court did not know of such weapons being used by the military, and it simply remanded the case back to the lower court to consider whether or not they were, having found that the 2nd Am. applied if the weapon had any relation to maintaining the militia in a well-regulated state.
Note that the court gave no notice of the obsolete decision in U.S. v. Cruikshank.
Subsequent [lower court] cases have held that the modern equivalent of the "militia" is the National Guard.  Miller has never been undermined. Unless totally misconstruing it is considered to be undermining.  Since there are a lot of lower courts and many cases, it is obviously possible to find some cases to support most any view one would want to espouse.
Eckert v. City of Philadelphia-1973, 6th Circuit Court, "it must be remembered that the right to keep and bear arms is not a right given by the U.S. Constitution." Note that this is obviously not the same as the Miller decision.  Lower court decisions are worthless, by politicians in robes.  But, in truth, none of the rights of the Bill of Rights is given by the Constitution.  The Bill of Rights only guaranteed pre-existing rights.  Maybe this is why the court made the statement.
Lewis v. U.S.-1980, states that the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relation to preservation or efficiency of a well regulated militia. This does conform to the Miller decision, right or wrong.  And it also said that the defendant was not protected by the 2nd Am. from a law that prohibits firearms possession by convicted fellons, simply because convicted fellons are subject to having any number of constitutionally guaranteed rights reduced or eliminated.
Quilici v. Village of Morton Grove-1982, In a nationally-watched case, a town in Illinois banned handguns.  The 7th Circuit Court of Appeals ruled that the Second Amendment restricts federal authority in this area, not that of state and local governments, "We conclude that the right to keep and bear handguns is not guaranteed by the Second Amendment" and "The right is for the militia, not the right to keep handguns".  The U.S. Supreme Court declined to hear an appeal in Quilici. Again, an incompetent lower court.  The ruling re. restricting only federal authority was even though the 14th am. has increasingly been ruled to have made the others of the first 10 amendments applicable to states.  The statement about the right being for the militia, whatever that might be, was based on their preceding statement that "individually owned handguns {are not} military weapons" even though the 2nd Am. says nothing about "military" weapons, and ignoring that "the militia" is the armed people.  One should inquire as to why the Supreme Court declined.  Often this is for reasons such as that the 2nd Am. claim had not been raised in the lower court, or that the appeal was not promptly made.
U.S.v. Hale - 1992,The Eighth Circuit read Miller (above) as protecting only those weapons which are actively being used by a militia member for a legitimate, militia-related purpose.  A weapon is not constitutionally protected simply because it is "susceptible to military use".  Indeed, as observed by the court, it would be difficult to find a lethal weapon which does not have a "potential military use".  Instead, a plaintiff must prove that "his or her possession of the weapon was reasonably related to a well regulated militia".  Membership in an unorganized militia, or a private, nongovernmental military organization, is not enough to satisfy the "reasonable relationship" test. Demonstrates lack of understanding.  The 2nd Am. says nothing about restriction to membership or "organized" militia.  Simply developing skill with firearms is beneficial for maintaining a well regulated militia.  The DoD has documented in the past that the country's ability to rapidly train military recruits results from the existing familiarity of young men with firearms and their uses, even if not exactly the same firearms they will use in the military.
The Legal And Legislative Future For Gun Control

Eleven U.S. Circuit Courts of Appeals have analyzed [?] the Second Amendment with this narrow view. Additionally, while the courts have chosen to apply many other provisions of the Bill of Rights to the states through the Fourteenth Amendment, they have explicitly declined to do so with the Second Amendment.  The Court is not going to expand any individual rights, so any personal right to bear arms would have to be balanced against the needs of the community.  Therefore, the Second Amendment is not an obstacle to rational gun control laws, it does not preclude federal, state or local regulation of the sale, use or ownership of guns for private purposes.

Of the 13 appeals courts, 4 have held that the 2nd Am. is not about an individual right, 4 have held that it is, and the others have been silent on it.  All these findings came before the 1990 U.S. Supreme court findings in U.S. v. Verdugo-Urquirdez that "the people" in the 2nd Am. has the same meaning as in the Preamble to the Constitution and in the 1st, 4th, and 9th amendments.
For the NRA, firearms equal freedom, and they want to change the subject from death, injury and statistics.  There is a good chance, however, that the cost of violence is winning more converts than the "constitutional right" to "keep and bear arms"--especially when that right, as it affects gun ownership, is illusory. Actually, the NRA and many other gun rights activists try real hard to change the subject to honest statistics and honest use of them.
* This article is a brief synopsis, plus edited excerpts from an analysis of the Second Amendment prepared by the Legal Community Against Violence which was organized after the July 1, 1993 massacre at 101 California Street in San Francisco.

The organization, a Community Fund of the San Francisco Foundation, may be reached at (415) 433-3550, fax (415)433-3557.


Coalition Against Gun Violence, formerly Santa Barbara Women Against Gun Violence is a project of the Nuclear Age Peace Foundation.

Copyright © 1999-2000 Coalition Against Gun Violence

A Santa Barbara County Coalition

 

CONCLUSION

The coalition says so many things easily disproven, why would anyone think he/she should believe anything the coalition says?

Let's substitute, for the words in the Second Amendment, the modern words that properly convey the meanings the actual words had at the time, and see what we get:

An under-control, well running armed populace being necessary to the security of a free people, the right of the people to have and carry weapons shall not be infringed.

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