By Dan Gifford
"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." - Second Amendment
Refreshers are often a good thing to keep our heads straight. That is
especially true of Second Amendment basics given the inescapable
disinformation noise of our political and chattering classes across all
media. Hardly any of that cacophony is louder at the moment than the
claim that private citizens have no constitutional right to own "weapons
California Democratic Party U.S. Senator Diane Feinstein has largely defined her career on that claim."Weapons of war have no place on our streets and schools"
Feinstein's assertion is ridiculous because Americans have always owned
"weapons of war." By that I mean real military arms, both foreign and
domestic, which have been available for purchase from commercial dealers
or directly from a U.S. government program Congress established more
than 100 years ago to sell military weapons to civilians.
This Colt Model 1911 was the standard issue military pistol issued to
American forces for almost 1oo years. It's a "weapon of war" that was
and maybe still is the most commonly owned handgun in America. Other
U.S. issued "weapons of war" like the WWII era M1 Carbine, Garand rifle
and even machine guns were available by mail order, almost no questions
asked, for years.
Those are official American military issued arms, but that aside, "weapon of war" is a rather silly phrase on its face since almost any weapon or object can be and has been a weapon of war as ancient stories attest and modern archeology says probably happened.
The Biblical David killed Goliath with a rock thrown by a sling. The
Roman army also used sling thrown objects in battle with devastating
The Biblical Jael drove a tent peg through the head of the sleeping
Canaanite general Sisera after he fell asleep after sex and thereby
saved her people from annihilation.
The Biblical Judith cut off the head of the drunk Assyrian general
Holofernes who wanted sex with her and thereby saved her town from
During their 1939 war with the Soviet Union, Finnish soldiers destroyed
Russian tanks with incendiary bombs made by filling bottles with gasoline.
The Finns called them "Molotov cocktails" as an FU to Soviet official
Vyacheslav Mikhailovich Molotov.
Knives, handguns, bows and arrows, bottles of gasoline, rocks, tent pegs
or whatever. It's a long list that may soon even include place settings
some do-gooder activist will demand be banned.
But the "weapons of war" talked most about today are the civilian
versions of rifles that look like military issue rifles and which may
have military usefulness. Earlier generations understood that, given the
Second Amendment's purpose, militarily useful rifles and other firearms
were exactly what the Second Amendment guaranteed civilians could and
should possess. The 1934 Chicago Tribune editorial board understood what
too many no longer do:
"In the revolutionary war the people were able to gain their liberties
because when they tried for them possession of firearms was common and
many of the citizens knew how to use them. A disarmed population of
people familiar with weapons would not have had much chance. In 1789 the
weapons in general use would be long rifles, muskets, and clumsy
pistols. The people were entitled to have the best weapons they could
make or purchase. Now the best weapons for individuals are machine guns
and automatic rifles. Use which can be made of these is indicated by
law, but it is not the possession of which is properly an offense under
For the same reasons the Tribune cited, it has been official defense
policy for over 100 years to sell military surplus arms and ammunition
to the public and to sponsor shooting competitions with those weapons.
The Department of Civilian Marksmanship (DCF) was changed a few years
back to the Civilian Marksmanship Program (CMP). The former was a direct
government program. That latter is a chartered private one but it is
That program exists because the Right to arms is "the palladium of
liberties of a republic," as US Supreme Court Justice Joseph Story said
in his 1833 book "Commentaries on the Constitution of the United
States." It is the ultimate guarantor of all other rights against"
sudden foreign invasion, domestic insurrection and usurpation of power
So 200 years before many feared Richard Nixon might try and use the
military and federal police to stay in office if impeached and Admiral
Elmo Zumwalt said Richard Nixon did indeed test the waters with the
Joint Chiefs of Staff "to find out whether in a crunch there was support
to keep him in power," the Constitution's authors wrote time and again
about the dangers to liberty of standing armies in the face of a
disarmed population. That admonition is also common to a number of state
Protection against criminals was a given, since the Founders realized
constitutional rights of due process would keep many lethal people from
arrest or jail and loose on the public and that people needed their own
arms as protection. But what about that "well regulated militia" phrase?
Earlier generations understood both the Founders intent as well as their
antiquated phraseology that anti Second activists now claim means
something the Constitution's Framers did not.
"The Second Amendment's first portion is not a condition for the second
portion." It is simply, as noted by William Rawle in his 1825 book "A
View of the Constitution of the United States," -- the standard
constitutional text at law schools until the 1870s -- a "declaration
that a well regulated militia is necessary to the security of a free
state." Its corollary is that "the right of the people to keep and bear
arms shall not be infringed." That point has been made by other legal
Michigan Supreme Court Justice Thomas McIntyre Cooley, one of the most
influential 19th century constitutional experts, wrote what is probably
the clearest explanations of the Second in his 1898 book "General
Principles of Constitutional Law."
"It may be supposed from the phraseology of this provision that the
right to keep and bear arms was only guaranteed to the militia; but this
would be an interpretation not warranted by the intent. If the right
were limited to those enrolled [by the government in the militia], the
purpose of this guarantee might be defeated altogether by the action or
neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is that the people from whom the
militia must be taken shall have the right to keep and bear arms, and
that they need no permission or regulation of law for the purpose."
That intent was reflected in James Madison's original arrangement of the
Bill of Rights. He listed them within the the Constitution itself where
each applied. Along with free speech, the right to keep and bear arms
was was placed in Article I, Section 9, the section guaranteeing
individual rights such as habeas corpus. So the "right of the people to
keep and bear arms," as understood by Madison and his fellow
Constitution Framers, has the same individual rights standing --
affirmed contemporarily in two US Supreme Court decisions -- as the
right of the people to peaceably assemble" and "the right of the people
to be secure in their persons, houses, papers and effects against
unreasonable search and seizure."
But Rights on paper are not always respected for all. So when Second
Amendment rights were denied to freed slaves, Congress responded with
the Freedman's Bureau Act of 1866, the Civil Rights Act of 1866 and the
first portion of the 14th Amendment. All three were specifically passed
to nullify special state laws passed in the South to keep blacks from
owning owning or carrying guns and to stop the ensuing intimidations and
murders of of unarmed blacks by sheriffs, the KKK and militia members.
It was a real life example of Judge Cooley's admonition about the way
the militia could be used to oppress by "the government it was meant to
hold in check" if the Right to arms was limited to those enrolled in a
government sanctioned and controlled formal militia.
But what exactly is the militia? The definition has changed over time
and is a bit confusing given our sloppy language and ignorance of history.
To the Founders, "Militia" was defined as "the whole people" with their
individual arms and relates not so much to a formal military unit that
trained occasionally, but to a system where all citizens were armed for
their individual and collective protection against crime, invasion and
government tyranny. That meant all able-bodied men within a certain age
group were automatically members of the Militia even if not called to
active service. The Militia Act of 1903 retained that as the Unorganized
Militia and added an Organized Militia.
The Organized Militia is composed of two National Guard forces.
California State Defense soldiers in training
* The National Guard, called State Defense Forces (SDF), are state
equipped military forces over which the federal government has no authority.
Members of the California State Military Reserve above are performing
* The National Guard of the United States is a federally equipped
reserve component of the United States military under the temporary
control of its home state. That control can be rescinded at any time by
Each Guard may wear the same uniform but notice a key difference. The
one above says U.S. Army while the one below says California.
The Unorganized militia remains the Reserve Militia and is composed of
every able-bodied man of at least 17 and under 45 years of age, that is
not already a member of the National Guard. That's according to U.S.
Code. But state laws are different. All that come to mind include those
over 45 as well. North Carolina's is typical:
"The militia of the State [of North Carolina] shall consist of all
able-bodied citizens of the State and of the United States and all other
able-bodied persons who have or shall declare their intention to become
citizens of the United States, subject to the qualifications prescribed
in this Chapter, who shall be drafted into the militia or shall
voluntarily accept commission, appointment, or assignment to duty therein."
That militia system is an integral part of national defense policy, the
backbone of which is the Posse Comitatus Act of 1878, which was written
to keep the military out of civilian law enforcement and act as a check
on civil police powers.
It's a purpose that cannot work sans a robust Second Amendment. As
Theodore Schroeder, a highly important 1800s freedom of speech theorist
wrote in his book, Free Speech for Radicals: "the obvious import [of the
constitutional guarantee to carry arms] is to promote a state of
preparedness for self-defense even against the invasions of government,
because only governments have ever disarmed any considerable class of
people as a means toward their enslavement."
Dan Gifford is a national Emmy-winning, Oscar-nominated film producer
and former reporter for CNN, The MacNeil Lehrer News Hour and ABC News.