Ethics and Public Policy

Essays by Harry T. Cook

January 27, 2008

"The Right To Keep And Bear Bazookas"

And in this corner, folks, in the black trunks, Chollie (The Perfesser)

Jones, defender for 70 years of the 2nd Amendment title. In the opposite corner, in the white trunks, Tex (Da Killa) Smith, the challenger whose victory tonight would allow every red-blooded person in this cheering crowd to own, keep, bear, shoot and otherwise adore a .44.

So might the above replace the familiar Oyez, oyez announcement that the U.S. Supreme Court is about to be in session, this time to hear arguments about why the 2nd Amendment doesn't mean what it says.

The 2nd Amendment is as follows: 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.

Twenty-seven words, only seven of them with more than one syllable, spell out in a nuance-free fashion the constitutional provision with regard to the possession of guns. The National Rifle Association and its hangers-on in and out of Congress insist that the 2nd Amendment prohibits the government from interfering with anyone who desires to possess a firearm of any kind. I dissent.

That Wild, Wild West crowd has employed lawyers and semanticists to "prove" that the commas in the passage and the dependent clause with which it begins and the qualifier about the country's security, were second thoughts. The idea of the Founders, they say, was to make it legal and normal for any and all to have weapons at the ready no matter what. Really? Try these slight variations on the constitutional language:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear bazookas shall not be infringed; or

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear nuclear warheads shall not be infringed; or

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear rocket launchers shall not be infringed.

Doesn't work, does it?

The gun-lovers concentrate on the right to keep and bear arms and interpret the right of the people to mean individuals and their desire to keep and arm bears.

U.S. Supreme Court Justice James Clark McReynolds, one of the most conservative jurists to sit on the court in its entire history, bore down on the term Militia, its history and purpose, then wrote for himself and all his voting colleagues the language that has served the country well ever since.

Of the weapon in question in U.S. v. Miller, 307 U.S. 174, Mr. Justice McReynolds declared: We cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon [a sawed-off shotgun] is any part of the ordinary military equipment or that its use could contribute to the common defense.

The phrase the common defense refers to what it was a militia did in its day, i.e.,Execute the Laws of the Union, suppress insurrections and repel invasions [from abroad]. Justice McReynolds - and the court for which he wrote - took a dim view of every Tom, Dick and Harry packing heat for the purpose of unregulated individual defense.

I have my gloomy doubts about how the Roberts court will handle the new challenge to domestic peace in our time. Withal, I shall not be buying my own Smith & Wesson. I need both my feet intact.

© Copyright 2008, Harry T. Cook. All rights reserved. This article may not be used or reproduced without proper credit.