re: Supreme Court rules against 'Straw Purchasers' of Guns

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Then by all means, explain it to me.

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"The right guaranteed under the Second Amendment is limited specifically to the arming of a `well-regulated Militia' that can be compared today to the National Guard."

The Second Amendment 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 contrast to other portions of the Constitution, this Amendment contains no qualifiers, no "buts" or "excepts."

It is a straightforward statement affirming t he people's right to possess firearms.

The perception that the Second Amendment guarantees a "collective right" or a "right of states to form militias" rather than an individual right is a wholly inaccurate 20th-century invention.

Historically, the term "militia" refers to the people at large, armed and ready to defend their homeland and their freedom with arms supplied by themselves (U.S. v. Miller, 1939). Federal law (Title 10, Section 311 of the U.S. Code) states:

"The militia of the United States consists of all able-bodied males at least 17 years of age...." Moreover, historical records, including Constitutional Convention debates and the Federalist Papers, clearly indicate that the purpose of the Second Amendment was to guard against the tyranny that the Framers of the Constitution feared could be perpetrated by any professional armed body of government.

The arms, records and ultimate control of the National Guard today lie with the Federal Government, so that it clearly is not the "mi litia" protected from the federal government.

The Supreme Court recently affirmed this virtually unlimited control of the Guard by the federal government in the case of Perpich v. Department of Defense (1990). The Court held that the power of Congress over the National Guard is plenary (entire, absolute, unlimited) and such power is not restricted by the Constitution's Militia Clause. The Second Amendment was not even mentioned by the Court, undoubtedly because it does not serve as a source of power for a state to have a National Guard.

In The Federalist No. 29, Alexander Hamilton argued that the army would always be a "select corps of moderate size" and that the "people at large (were) properly armed" to serve as a fundamental check against the standing army, the most dreaded of institutions. James Madison, in

The Federalist No. 46, noted that unlike the governments of Europe which were "afraid to trust the people with arms," the American people would continue under the new Constitution to possess "the advantage of being armed," and thereby would continually be able to form the militia when needed as a "barrier against the enterprises of despotic ambition."

A 1990 Supreme Court decision regarding searches and seizures confirmed that the right to keep and bear arms was an individual right, held by "the people"--a term of art employed in the Preamble and the First, Second, Fourth, Ninth, and Tenth Amendments referring to all "persons who are part of a national community" (U.S. v. Verdu go-Urquidez, 1990).

The case of U.S. v. Miller (1939) is frequently, though erroneously, cited as the definitive ruling that the right to keep and bear arms is a "collective" right, protecting the right of states to keep a militia rather than the individual right to possess arms. But that was not the issue in Miller, and no such ruling was made; the word "collective" is not used any place in the court's decision.

While such a decision was sought by the Justice Department, the Court decided only that the National Firearms Act of 1934 was constitutional in the absence of evidence to the contrary. The case hinged on the narrow question of whether a sawed-off shotgun was suitable for militia use, and its ownership by individuals thus protected b y the Second Amendment.

The Court ruled that: "In the absence of (the presentation of) any evidence tending to show that possession or use of a `shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice--common knowledge, that need not be proven in court--that this weapon is any part of the military equipment or that its use could contribute to the common defense."

Because no evidence or argument was presented except by the federal government, the Court was not made aware that some 30,000 short-barreled shotguns were used as "trench guns" during World War I.

The Supreme Court has ruled on only three other cases relating to the Second Amendment--all during the last half of the nineteenth century. In each of these cases, the Court held that the Second Amendment only restricted actions of the federal government, not of private individuals (U.S. v. Cruikshank, 1876) or state governments (Presser v. Illinois, 1886, and Miller v. Texas, 1894). The Court also held, in Presser, that the First Amendment guarantee of freedom of assembly did not apply to the states; and in Miller v. Texas, it held that the Fourth Amendment guarantee against unreasonable search and seizure did not apply to the states, since the Court believed that all the amendm ents comprising the Bill of Rights were limitations solely on the powers of Congress, not upon the powers of the states.

It was not until two generations later that the Court began to rule, through the Fourteenth Amendment, that the First, Fourth, and other provisions of the Bill of Rights limited both Congress and state legislatures. No similar decision concerning the Second Amendment has ever been made in spite of contemporary scholarship proving that the purpose of the Fourteenth Amendment was t o apply all of the rights in the Bill of Rights to the states.

12 That research proves that the Fourteenth Amendment was made a part of the Constitution to prevent states from depriving the newly freed slaves of the rights guaranteed in the Bill of Rights , including what the Supreme Court's Dred Scott decision referred to as one of the rights of citizens, the right "to keep and carry arms wherever they went."

The only significance of the Supreme Court's refusal to hear a challenge to the hand- gun ban imposed by Morton Grove, Illinois, is that the Court will still not rush to apply the Second Amendment to the states. The refusal to hear the case has no legal significance and, indeed, it would have been very unusual for the Court to make a decision involving the U.S. Constitution when the Illinois courts had not yet decided if Morton Grove's ban conflicted with the state's constitution.

* 12 Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984).

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