From the WSJ Opinion Archives
THE WESTERN FRONT
Ready, Fire, Aim
The Ninth Circuit misses its mark, the Second Amendment.
The U.S. Ninth Circuit Court of Appeals has given gun-control advocates an early Christmas gift--a comprehensive, historically based argument that undermines an individual's right to own firearms. This is a gift the antigun crowd sorely needed after the revelation that Michael Bellesiles's book "Arming America"--which claimed guns were rare in early America--was a work of slipshod scholarship if not outright fraud.
The Ninth Circuit also takes aim at the Fifth Circuit, which held last year in U.S. v. Emerson that the Second Amendment does, in fact, protect an individual's right to firearms. Gun-rights supporters should welcome the Ninth Circuit's decision, for one simple reason: It is a reasoned, if mistaken, argument, rather than the crude emotional appeal that is the antigun folks' usual stock in trade. So let the debate begin.
In 1999 a new law took effect providing that all owners of "grandfathered" guns, except current and retired policemen, had to register their guns with the state. Sean Silveira and eight other plaintiffs claimed that the law violated the Second Amendment as well as other constitutional rights.
The Ninth Circuit, in a decision by the ultraliberal Judge Stephen Reinhardt rejected virtually all of Mr. Silveira's claims. (It did hold that the exception for retired cops violates the Equal Protection Clause of the 14th Amendment). And it did so in sweeping fashion, holding that the Second Amendment does not protect an individual's right to firearms. Instead, it merely protects a state's right to equip and train its militia.
The Ninth Circuit's argument hinges on the text of the Second Amendment as well as the debates at the Constitutional Convention and the subsequent state conventions that ratified the Constitution. Throughout those debates, the court argued, the Founding Fathers revealed a profound distrust of standing armies, a fear they later sought to allay in writing the Second Amendment.
Here's the argument: Throughout the 18th century and well into the 19th, America's military might during peacetime rested primarily with states militias--largely organized, equipped and trained by state governments, but commanded by the president in times of crisis. Under this system, Congress would have little interest in providing funds to arm and train the states' militias. So a provision had to be added to the Constitution assuring the states had the power to equip the militias themselves. That provision became the Second Amendment.
This, Judge Reinhardt asserts, is why the Second Amendment includes the clause "a well regulated militia." The Founders could only mean a state armed force, because of their recent experience in quelling an uprising in western Massachusetts in the late 1780s. "What the drafters of the amendment thought 'necessary to the security of a free State' was not an 'unregulated mob' of armed individuals such as Shays band of farmers" or "the type of extremist 'militia' associated with Timothy McVeigh . . . or indeed any private collection of individuals," writes Judge Reinhardt.
On a more fundamental level, the Ninth Circuit fails to consider whose guns the militiamen actually bore in the 18th century. The founders did fear an "unregulated mob," and that's why they set up state governments to authorize military action before assembling an army to face the British. But they also understood that a government's sovereignty and power originate with the people. The militias were made up of local men who turned out with their own guns, in order to defend their communities.
The Second Amendment was aimed at protecting groups like the Minute Men. They were private citizens who formed a militia to defend their country. When Paul Revere roused them, the guns they grabbed from their bedsides didn't belong to the government of Massachusetts.
True, state governments furnished some weapons for their militias. But no state manufactured its own weapons. They were forced to buy them from individuals or foreign countries on the open market. After the Revolution, a third source opened up when George Washington order the construction of two firearm factories. One federal armory was built in Harper's Ferry, Va., and the other in Springfield, Mass. Both spawned gun-making communities that churned out weapons for private use. It's no coincidence that in 1857, Smith & Wesson was founded a short distance from the federal armory in Massachusetts.
If the founders really wanted to protect the states' rights to arm their militias, why would they build only federal armories, which then proceeded to spawn a collection of manufacturers that armed private citizens?
The generation that fought the Revolution and wrote the Constitution understood that law-abiding, armed citizens are the best domestic defense. The Ninth Circuit appears to intentionally overlook this point. They cite George Mason at the Constitutional Convention saying: "I wish that, in the case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them."
But taking this quote out of context misrepresents Mason's argument. Reading the whole paragraph from which it is lifted reveals that Mason was actually arguing for the individual right to own firearms. Further up in the paragraph he said: "The British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia."
Mason wasn't simply interested in a Second Amendment to protect states' rights. After all, he was one of a few men at the Philadelphia convention who refused to sign the Constitution. He later fought against its ratification because it did not (yet) contain a Bill of Rights.
Let's get this straight, the Second Amendment is clear: "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." That means just what it says: The people have a right to keep and bear arms, and that right shall not be infringed.
Mr. Miniter is assistant editor of OpinionJournal.com. His column appears Mondays.
