Counterpoint: Gun Control Is Constitutional ---- By Robert A. Goldwin
The best clues to the meaning of the key words and phrases are in debates in the First Congress of the United States. The Members of that Congress were the authors of the Second Amendment. A constitutional amendment calling for the prohibition of standing armies in time of peace was proposed by six state ratifying conventions. Virginia's version, later copied by New York and North Carolina, brought together three elements in one article -- affirmation of a right to bear arms, reliance on state militia, and opposition to a standing army: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in times of peace, are dangerous to liberty, and therefore ought to be avoided. . . ." The purpose was to limit the power of the new Congress to establish a standing army, and instead to rely on state militias under command of governors. The Constitution was ratified without adopting any of the scores of proposed amendments. But in several states ratification came only with solemn pledges that amendments would follow. Soon after the First Congress met, James Madison, elected as a congressman from Virginia on the basis of such a pledge, proposed a number of amendments resembling yet different from articles proposed by states. These eventually became the Bill of Rights. In the version of the arms amendment he presented, Madison dropped mention of a standing army and added a conscientious objector clause. "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." In this version, "bearing arms" must mean "to render military service," or why else would there have to be an exemption for religious reasons? What right must not be infringed? The right of the people to serve in the militia. This militia amendment was referred to a congressional committee, and came out of committee in this form: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." Two significant changes had been made: first, the phrase "to render military service in person" was replaced by the phrase "to bear arms," again indicating that they are two ways to say the same thing; second, an explanation was added, that the "militia" is "composed of the body of the people." The House then debated this new version in committee of the whole and, surprisingly, considering the subsequent history of the provision, never once did any member mention the private uses of arms, for self-protection, or hunting, or any other personal purpose. The debate focused exclusively on the conscientious objector provision. Eventually the committee's version was narrowly approved. The Senate in turn gave it its final form, briefer, unfortunately more elliptical, and with the exemption for conscientious objectors deleted: "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." Certain explanations were lost or buried in this legislative process: that the right to bear arms meant the right to serve in the militia; that just about everybody was included in the militia; and that the amendment as a whole sought to minimize if not eliminate reliance on a standing army by emphasizing the role of the state militia, which would require that everyone be ready to be called to serve. But what about the private right "to keep and bear arms," to own a gun for self-defense and hunting? Isn't that clearly protected by the amendment? Didn't just about everyone own a gun in 1791? Wouldn't that right go without saying? Yes, of course, it would go without saying, especially then when there were no organized police forces and when hunting was essential to the food supply. But such facts tell us almost nothing relevant to our question. Almost everyone also owned a dog for the same purposes. The Constitution nevertheless says nothing about the undeniable right to own a dog. There are uncountable numbers of rights not enumerated in the Constitution. These rights are neither denied nor disparaged by not being raised to the explicit constitutional level. All of them are constitutionally subject to regulation. The right to bear arms protected in the Second Amendment has to do directly with "a well-regulated militia." More evidence of the connection can be found in the Militia Act of 1792. "Every free able-bodied white male citizen" (it was 1792, after all) was required by the act to "enroll" in the militia for training and active service in case of need. When reporting for service, every militiaman was required to provide a prescribed rifle or musket, and ammunition. Here we see the link of the private and public aspects of bearing arms. The expectation was that every man would have his own firearms. But the aspect that was raised to the level of constitutional concern was the public interest in those arms. What does this mean for the question of gun control today? Well, for example, it means that Congress has the constitutional power to enact a Militia Act of 1992, to require every person who owns a gun or aspires to own one to "enroll" in the militia. In plain 1990s English, if you want to own a gun, sign up with the National Guard. Requiring every gun owner to register with the National Guard (as we require 18-year-olds to register with the Selective Service) would provide the information about gun owners sought by the Brady and Staggers bills, and much more. Standards could be set for purchase or ownership of guns, and penalties could be established. Restoring a 200-year-old understanding of the Constitution may be difficult, but there isn't time to dawdle. Americans now own more than 200 million guns, and opinion polls show Americans want gun control. Why not avail ourselves of the Second Amendment remedy? Call in the militia, which is, after all, "composed of the body of the people." --- Mr. Goldwin is a resident scholar in constitutional studies at the American Enterprise Institute.
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