Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, February 22, 1993 TAG: 9302220247
SECTION: EDITORIAL PAGE: A-8 EDITION: METRO
SOURCE: MARVIN H. BALLARD
DATELINE: LENGTH: Medium
A CONSTITUTIONAL GREEN LIGHT TO CONTROL GUNS
WHEN EDWARD Lynch (letter, Jan. 31, "Can't liberals read Constitution?") asked if liberals were able to read the Constitution, he fell victim to his own question. This is because he erroneously quoted the Second Amendment as reading "The right of the people to keep and bear arms shall not be infringed."I'm sure this is what Lynch and the National Rifle Association would wish the Second Amendment to say, but neither the Constitution itself nor the Supreme Court, the ultimate arbiter of the Constitution's meaning, agree with his intentionally truncated version of this amendment.
The Second Amendment actually reads: "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." In this form, the amendment takes on a substantially different meaning from the one Lynch ascribes to it. The right to bear arms is clearly predicated upon some other important concern.
Who is best to say what that meaning is? I suggest the "Federalist Papers," the public writings of Alexander Hamilton and James Madison as they sought to shape public opinion in favor of ratification of the new Constitution. These essays clearly show that the writers of the Second Amendment did not intend to bestow an unlimited right to bear arms upon citizens. This point of view was never mentioned. Nor was a frontiersman's need to protect himself and his family from Indians, nor a hunter's need to put food on the table.
What was discussed was the need of a state to protect itself against the military strength of the proposed federal government. As odd as it may sound to modern Americans, the authors of the Second Amendment wanted to protect a state's right to form a militia because they were afraid the new government might use the national army to conquer each state individually.
The federal government, in other words, could not limit the right of a state's citizens to bear arms because a militia is composed of state citizens, but this in no way limited the authority of state legislatures in this realm.
A second source for a proper understanding of the Second Amendment is the record of Supreme Court decisions involving it. This record is short. To my knowledge, fewer than a half-dozen cases concerning that amendment have ever reached the high court.
The Supreme Court has ruled that the Second Amendment does not confer upon citizens the right to form military organizations of their own. Also, it does not guarantee a citizen a right to own certain kinds of weapons, and it does not even prevent local governments from forbidding possession of firearms entirely, as occurred in Morton Grove, Ill. Moreover, the Supreme Court has never struck down a myriad of state laws that regulate weapons.
Finally, we come to the doctrine of incorporation, which is a subject in constitutional law that is difficult to explain briefly. However, in the case of Barron vs. Baltimore (1833), Chief Justice John Marshall wrote that, "In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government - not against those of the local government."
In other words, those rights apparently guaranteed by the Bill of Rights were protected from attack by the federal government, but not by legislative actions of either state or local governments.
This ruling meant that cases in which states did infringe upon basic rights had to be brought individually to the Supreme Court, and then specifically reaffirmed as another right protected from state encroachment. Over time, all but the Second and Seventh Amendments have been thus "incorporated" into the body of generally protected rights, which still leaves state governments with a free hand on militia and gun-control issues. The Second Amendment has not been incorporated because it dealt militia powers to the states in the first place.
To sum up, it is the legislature of each state that has full control of issues involving guns, the militia and public safety. The protection of the Second Amendment does not extend to actions taken by state legislatures because it was not originally intended to do so, and the Supreme Court has ruled as such. State legislatures are acting accordingly.
Every right guaranteed by the Bill of Rights, Mr. Lynch, is a limited one. The freedom of speech does not confer the right to shout "fire" in a crowded theater. The freedom of press does not mean newspapers can print deliberate lies. The freedom of assembly does not confer the right to riot. And the right to bear arms does not prevent the state legislature from doing what it deems necessary to ensure domestic tranquility.
Marvin H. Ballard of Elliston is chairman of the Social Studies Department at Shawsville High School where he teaches government.