by Craig A. Butler
Daily Lobo Columnist
Last week, the 9th U.S. Circuit Court of Appeals in San Francisco ruled on the legitimacy of California's semiautomatic assault weapons ban.
It upheld the ban, which was not a surprise. But Judge Stephen Reinhardt, well known to be one of the nation's most proactive liberal judges, also produced for the case a 70-page dissertation on the Second Amendment. In it, he examines the history and purpose of the amendment, and in the end concludes that it is meant to apply only to state militias, not individual gun ownership.
The debate over the meaning of the Second Amendment has been ongoing since the early 20th century, gaining force around the time of the invention of semi-automatic and fully automatic weapons. The Supreme Court has yet to finalize the issue with a decision one way or the other. The last major case regarding the Second Amendment came before the Supreme Court in 1939, and the court's ruling resulted in a ban on moving sawed-off shotguns between states.
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The court's argument in that case was that sawed-off shotguns are inappropriate for militia use and thus do not fall under the Constitutional protection of the Second Amendment. Since then, the Second Amendment has been assumed to mean that individuals have the right to own firearms, but states and the federal government can place legal restrictions on certain types of weapons or activities.
Judge Reinhardt's ruling goes far beyond this understanding of the amendment and seeks to overthrow centuries of American tradition. Reinhardt believes that the modern understanding of the amendment as an individual right is mistaken and that it was only intended, from the beginning, to permit state militias.
Today, the National Guard has taken the place of the citizen militias of old. U.S. citizens no longer report en masse to the town parade grounds on Sunday afternoons to practice marching in formation. The rapid-fire, highly accurate weapons of today are a far cry from the smoothbore, muzzle-loading muskets of the Revolution. In short, things have changed.
The difficulty with vast technological change is that there is no way the framers of the Constitution could have been expected to foresee the issues facing the country in the 20th and 21st centuries. As the world changed, new assumptions have been made as to how to interpret the Constitution, and landmark Supreme Court decisions over the centuries have changed, specified or clarified it.
The tradition of private gun ownership came about because, when the country was founded, it did not have a large professional military to protect the country. Before the Revolution, towns organized their own militias, composed of every able-bodied man and boy who could fire a musket. Mostly, these citizens simply brought their muskets from home whenever they were needed.
During the War of Independence, most of the American soldiers came from this background, bringing their own weapons and militia training with them. When the Constitution was set up, militias were officially organized at the state level, so that the federal government could call up military forces by simply asking the state to draw from its citizens.
Even after the nation's military philosophy changed, the tradition of individuals keeping their own weapons carried on. Judge Reinhardt believes that because the Second Amendment was designed to assure the rights of citizens to form armed militias, it does not allow individuals to own guns in this day and age when most gun-owners are not militia members.
However, just because the right of the people to bear arms was originally tied to militias does not mean that it is no longer an individual right. The creation of state-controlled National Guard forces does not invalidate the right of the people themselves to be armed. Although the idea of armed citizens resisting an invading army sounds strange to us today, we have only to look around the world to see examples of the effectiveness of guerilla warfare. Barely organized citizens laying ambushes and carrying out hit-and-run strikes caused major damage to British forces during the Revolution.
Imagine how difficult a military occupation of the United States would be today, simply because there are so many weapons in the hands of citizens. Although it is easy to scoff at such a scenario thanks to the protection of our vast military, no one can say what the future will bring. No matter what happens, the freedom of a nation whose citizens are well armed will be nearly impossible to take away.
