To the Valley News:
“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, U.S. Constitution
In his letter to the editor on April 6 Don Mauer maintains that “the overarching purpose” of the Second Amendment was to guarantee that “the people would have the right to secure their freedom from a tyrannical government.” He goes on to argue that because weapons technology was the same on both sides of the revolutionary war--the colonists who formed militias and the British soldiers both had single shot, muzzle loading weapons--that today there must be parity between what weapons citizens can physically “keep and bear” and what the armed forces of a tyrannical government can physically “keep and bear.” This parity argument implies that citizens have the right to bear shoulder-launched cruise missiles capable of downing airplanes, hand-held grenade launchers, the xm25, machine guns, mines, flamethrowers, etc. Using words close to, but significantly different from those in the Second Amendment, Mr. Mauer does imbed citizens’ gun rights within a “well trained” militia. (The 2nd Amendment, however, refers to a “well regulated militia,” which, to the courts, means government regulated) Mr. Mauer does not, however, refer to state militias (today known as the National Guard) because they would presumably be the armed forces of a allegedly tyrannical government. Rather, his letter suggests he has in mind well-trained private militias which would fight the National Guard. If my interpretation of Mr. Mauer’s letter is correct, I respectfully disagree.
Of course individuals and organizations certainly have a First Amendment right to express their opinions about the meaning of the Constitution. But it is the judiciary, and above all, the U.S. Supreme Court that has the legal authority to interpret the meaning of the “maddeningly ambiguous” Second Amendment.
The Supreme Court has in fact rendered a decision that contradicts Mr. Mauer’s claims. In 2008, in D.C. v. Heller, the Court interpreted the “keep and bear arms” verbs of the Second Amendment. The central question in the case was whether individual citizens have a right “to bear arms in defense of themselves and the state” independent of service in a state militia. Yes, the Court concluded, there is. But this individual right is subject to limitations.
Justice Scalia’s Heller opinion did indicate in dicta (not part of the legal ruling in the case) some of the limitations in clear contradiction of Mr. Mauer’s argument in favor of weapons-parity between “the people” and the armed forces. The Court’s reasoning ran as follows: At the time the Second Amendment was adopted the weapons it protected were in common use for both home and the militia. As Mr. Mauer correctly states, they were the same--single shot, muzzle loading weapons. That was then but not now. Weapons not protected by the Second Amendment, Justice Scalia wrote, were those not in common use at the time. In todays’ world, Justice Scalia stated, sophisticated weapons required for an effective militia are “highly unusual in society at large.” Because sophisticated military weapons are highly unusual--not in common private use--there is no Second Amendment right to keep and bear them. Underscoring this point, Justice Scalia point to the National Firearms Act’s restrictions on machine guns. In sum, the Court’s take on modern military technology undermines, rather than supports, Mr. Mauer’s parity argument.
What about the people’s right of armed resistance or revolution against what some see as tyrannical government? The Heller decision provides little support for this supposed overarching guarantee of Second Amendment. Justice Scalia cites with approval an 1886 decision of the Court holding that states may control and regulate “military bodies” (paramilitary organizations) except those authorized by the militia laws of the U.S. And we should not forget part of Art. I, Section 8 of the Constitution which confers on Congress authority to call forth the Militia “to suppress insurrections.”
Monique Weston, Keene