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An historical perspective

December 22, 2012
Cape Coral Daily Breeze

To the editor:

The Second Amendment provides "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." Does that amendment give individuals the right to keep and bear arms? The answer is yes, since June 26, 2008, by the Supreme Court in a 5-4 decision in Heller vs. District of Columbia. For over 200 years the general prevailing view was that the right to keep and bear arms applied to militia and not to individuals. Then the matter of "gun control" was solely for the legislature. The only other review of the Second Amendment by the Supreme Court was in the United States vs. Miller decided in 1939. The Supreme Court in Miller in a unanimous decision held there was no individual right in the Second Amendment and the right applied to militia.

In the 1939 Miller decision the court reviewed the history leading up to and after the American Revolution. There was no standing army for the Colonies. The Colonies formed militias for their protection. When later writing the Constitution, the framers sought to protect the militias from interference by the national government. Article I of our Constitution provides inter alia that the Congress has the power: "To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions." Article II says the President is commander in chief of the militia of the several states. It was against this background history that the Court unanimously in Miller made its decision. The Miller decision holding that the "obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted by its framers to give individuals a right to keep and bear arms, the initial militia clause would be unnecessary and meaningless.

After the assassinations of President Kennedy and Dr. King and then the murder of Robert Kennedy, Congress passed the Gun Control Act of 1968. It prohibited selling guns through the mail and limited whom sales could be made to. The National Rifle Association then endorsed gun control. The Republican Platform in 1972 also supported gun control. Later in the 1970s, the NRA leadership made a dramatic change becoming more political and aligning itself with gun manufacturers. I had joined the NRA after my discharge from the Marine Corps at the end of World War II. It was than a group for hunters and sportsmen. The NRA and a conservative group later selected six persons to get a test case on the District of Columbia's ordinance on gun control, which was the strictest one in the nation. It stupidly outlawed the keeping of a handgun in one's home. The wait for the test case on the Second Amendment was delayed until it was believed the appropriate justices were on the Supreme Court. Five of the six individuals were dismissed by the lower Court on procedural grounds, but Heller, one of the plaintiffs, was allowed to proceed. That case ended in the Supreme Court in 2008. Justice Antonin Scalia, writing for the majority in a 5-4 decision, held that the Second Amendment "rights" applied to individuals and not the militia. He, however, limited the decision to handguns. It appears that he recognized to extend that ruling could open the door to machine guns, bazookas and other dangerous weapons. The determination of what is a dangerous weapon is largely a legislative decision and not one for the Court. The ability of Congress to legislate on dangerous firearms is a political decision that is for Congress to decide today under existing law.

Arnold Kempe

Cape Coral

 
 
 

 

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