Commentary

Michael Helms: Militia means you and me

June 10, 2014 

Ellie Kinnaird’s interpretation of the Second Amendment (“2nd Amendment never said right to bear arms was absolute,” DN, May 27) is an interesting work of fiction, but its basis in historical precedent and established jurisprudence couldn’t be more mistaken.

Ms. Kinnaird’s fantasy vaguely refers to an 1875 Supreme Court case wherein she alleges “that the Second Amendment applies to the government, not an individual gun owner.” A closer reading of the 1875 Supreme Court case United States v Cruikshank affirms what Americans have long known: that the right to keep and bear arms is a fundamental right neither granted nor revocable by the government. To wit: “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.”

Ms. Kinnaird’s understanding of grammar is no better than her understanding of law. The prefatory clause of the Second Amendment (concerning “A well-regulated milita …”) does not limit the operative clause (“the right of the people to keep and bear arms …”). One would indeed wonder why a Bill of Rights explicitly designed to enumerate fundamental individual rights would need to grant the right of its organized militia to keep and bear arms.

But since Ms. Kinnaird is determined to conflate the prefatory clause with the operative clause, she would also do well to consult the definition of militia. The Second Amendment does not specify the organized militia, the national guard, the state forces or even the reserve militia. Instead, the second amendment broadly referred to the militia, whose definition is found in the text of the Militia Act of 1903 thus: “the militia shall consist of every able-bodied male citizen … who is more than eighteen and less than forty-five years of age.” So even if the Second Amendment was intended to be a collective right, it would still appear to apply to the majority of our adult citizenry.

Ms. Kinnaird and I agree on one thing, though: the Supreme Court will not protect us. Protecting us is the responsibility of neither the Supreme Court n or the police, as evidenced by the 1981 Supreme Court case Warren v District of Columbia. The responsibility of protecting one’s self ultimately belongs to that individual, and that fundamental responsibility (and the corresponding right to arm one’s self) should not, and cannot be abrogated entirely by the government, well-intentioned as it may seem.

She’s correct that no right is absolute, but we limit those rights cautiously and judiciously. Ms. Kinnaird decries her detractors as not having read Heller; based on her misinterpretations I wonder out loud if she’s ever read the National Firearms Act of 1934, United States v. Miller, the Gun Control Act of 1968, the Firearms Owners’ Protection Act of 1986, the Violent Crime Control and Law Enforcement Act of 1994 or McDonald v. Chicago. If she had, Ms. Kinnaird would find that firearms are already heavily regulated, and that nothing in the Heller decision reverses those heavy restrictions.

Should Ms. Kinnaird venture bravely into the extensive corpus of literature left by our founding fathers, she would also discover a long and rich tradition of individuals keeping and bearing arms. I’d suggest she add James Madison’s Federalist 46 to her reading list; it will serve her well when she contemplates the meaning of the second amendment and the intentions of its architects.

Armed with information and historical context, Ms. Kinnaird may better understand why Americans rightly revere the Second Amendment as sacrosanct. And why the vast majority of Americans are absolutely unwilling to give up that individual right.

Michael Helms is a senior history major at N.C. State University.

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