Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, July 24, 1990 TAG: 9007240358
SECTION: EDITORIAL PAGE: A-7 EDITION: METRO
SOURCE: Bob Willis
DATELINE: LENGTH: Medium
Among other things, we are accused of a selective defense of the Bill of Rights, of being more solicitous of the First Amendment than the Second. Editorial writers object, said one writer, to "carv[ing] out an exception" to freedom of the press, while making no objections to surgery on the right to keep and bear arms.
With all respect, may I suggest that gun defenders have already carved out their own exception to the Second Amendment.
That section of the Constitution 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."
Gun defenders studiously ignore the first 13 words of the amendment, concentrating on the rest of it. Through this exception, they depict the right to keep and bear arms as unqualified.
Unfortunately for their cause, they have never been able to persuade a federal court to agree with their version. In several decisions, as far back as 1876, the U.S. Supreme Court has interpreted the right to keep and bear arms in the context of a state militia.
There is an even longer and equally consistent series of lower-court rulings. An American Bar Association report says:
"[E]very federal court decision involving the amendment has given the amendment a collective, militia interpretation and/or held that firearms-control laws enacted under a state's police power are constitutional. Thus arguments premised upon the federal Second Amendment, or the similar provisions in the 37 state constitutions, have never prevented regulation of firearms."
Gun defenders do not acknowledge this. Every new attempt to curb access to firearms is greeted as if it were a fresh siege of a hitherto inviolate fortress. Seldom is it admitted that the "enemy" has breached the fortress' defenses many times and has been inside the gates for well over 100 years. There are scores of federal, state and local laws and statutes setting limits of one kind or another on access to firearms.
Even gun defenders do not quarrel with the principle of all these legal restrictions, such as laws that attempt to keep guns out of the hands of convicted felons or mental defectives. But every attempt to extend even these modest restrictions is met with cries of alarm.
When gun defenders do admit that the Second Amendment refers to a militia, they contend that the Founding Fathers did not mean simply a group of men marching in formation. They cite such documents as the Federalist Paper No. 28, by Alexander Hamilton, to the effect that the militia is "the whole nation" or "the population at large."
Again, however, the gun lobby has been unable to persuade any federal court to adopt that position. If the wording were so broadly interpreted, it would be difficult to deny firearms to the most villainous members of society; they are part of the population too. (One may also wonder how "well-regulated" such a loosely defined militia could be.)
Some members of the media admit that journalists are often more jealous of "our" constitutional amendment than of the Second. Columnist Michael Kinsley quotes his colleague Mickey Kaus on the liberal New Republic as saying that "if liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory." And in a Feb. 26 article, Kinsley says that Don Kates - whom he describes as a gun enthusiast - "builds a distressingly good case" in the Michigan Law Review that a flat ban on handguns would be hard to justify constitutionally.
That is not yet an issue, for recent efforts to control firearms have to do with cheaper handguns and semi-automatic weapons. But where the gun lobby is concerned, all guns are created equal, and an attempt against one firearm is construed as an attempt against all.
Similarly, our letter-writers see the Bill of Rights as indivisible: Whittle away one right, they say, and you destroy or make vulnerable the rest. They have a very good point. But when they contend that the right to keep and bear arms (as they interpret it) is essential to retaining free-speech rights, I have trouble accepting their argument.
They seem to envision a national government that trembles at the might of millions of armed homeowners and - because of all those weapons in private hands - would not dare infringe on any of our rights.
That is a bit far-fetched to me. If the occasion seemed to demand it, I think some gun owners (not all) would indeed rise up in defense of their weapons. Other infringements, as on the freedom of the press, might not trouble them at all.
by CNB