Letters

From the January 1995 issue

(Page 2 of 3)

While she is right that is far better to fend off tyranny with words rather than guns (and I suspect we both believe that the First Amendment is our most important civil liberty), she exhibits a massive failure to comprehend the significance of the Second Amendment. Without any power behind them, the First Amendment and all the others that come after are just so many insubstantial words. The Second Amendment provides a tangible distribution of real power in the hands of the people, and this is something far more precious than Ms. Strossen and the ACLU are willing to acknowledge.

Norman Smith
Compuserve 73642,2272

Nadine Strossen should dust off one of her old grammar texts and use it to re- examine the Second Amendment. "Well regulated" modifies "militia," not "people."

Obviously, a well- regulated militia is more valuable a force in service of a community of free citizens than is an unregulated militia. Hence, the opening phrase of the Second Amendment. The following clause guarantees (supposedly) a ready supply of armed citizenry from which a well- regulated militia can be drawn.

Paul Wescott
Compuserve 71700,1502

The Founders and Framers all believed that the unorganized militia consisted of all able- bodied citizens. A few examples are instructive: "A militia when properly formed are in fact the people themselves...and include all men capable of bearing arms....To preserve liberty it is essential that the whole body of people always possess arms," Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788). "I ask, sir, what is the militia? It is the whole people, except for a few public officials," George Mason, 3 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2 at 97 (2d Ed., 1888). "[The Constitution preserves] the advantage of being armed, which the Americans possess over the people of almost every other nation...[whose] governments are afraid to trust the people with arms," James Madison, The Federalist No. 46 (1788).

It is no accident that proponents of the view that the Second Amendment only guarantees a collective right and not an individual right never quote the Founders or Framers to support their arguments. The reason is because there is no support for that view to be found in the writings of the Founders or Framers.

Daniel J. Schultz
President and Founding Member
The Lawyers' Second Amendment Society
Encino, CA

Ms. Strossen's rationale for the ACLU's abandonment of the right to keep and bear arms is: "What it [the pro- gun position] comes down to is the very strong belief that having a gun in your home is something that can ultimately fend off the power of a tyrannical government. I find that really unpersuasive in the 20th- century context. Maybe it made sense in the 18th century."

Recent history offers numerous examples of lightly armed men able to inflict grievous damage on vastly superior forces. Afghanistan's mujahadeen initially armed with archaic Lee- Enfield bolt-action rifles, stalled the Soviet Red Army for many years before receiving the advanced weapons from the West that finally tipped the balance of power in their favor. Chad's desert fighters managed to beat back Gadhafi's tank forces by the simple, insanely brave expedient of mounting captured Libyan anti- armor weapons on their Toyota pickup trucks and charging the invaders in packs. More recently, 5,000 Croat defenders carrying hunting rifles and Kalashnikovs were able to defend the medieval city of Vukovar against 25,000 Yugoslav army troops and Chetnik irregulars backed by Soviet T- 84 tanks and heavy artillery for 89 days before they ran out of ammunition and were overrun.

Mark Penman
Carrboro, NC

Ms. Strossen replies: Although your readers have raised questions about several issues I discussed in my interviews with Cathy Young, a majority seem concerned about the ACLU's position on the Second Amendment. I therefore decided to use the limited space available to further clarify this position.

The national ACLU does not affirmatively support gun control legislation, believing that it cannot be justified on civil liberties grounds. The question whether any particular regulation affecting guns is barred by the Second Amendment, or civil liberties principles, is more complicated, however.

We are familiar with recent scholarship that challenges the prevailing (although old) Supreme Court doctrine regarding the original intent of the Second Amendment. This scholarship argues that the amendment was specifically intended to protect the right of individuals to own and bear arms, whereas the Supreme Court had held that its intent was to secure the states' right to maintain militias as a hedge against federal power. Both claims are probably correct because in the 18th century the militia consisted of citizens who brought their own arms.

As in other disputes about the meaning of constitutional provisions, the attempt to discern a specific original intent is of limited use, and certainly not dispositive, in setting modern arguments. One has to look beyond the specific 18th-century circumstances and instead try to discern what broad purpose or value was being served, and how that might be served today.

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