The Second Amendment:
"Dear God, the [people] have guns!"
Mr. Louis Craco's Summer, 1997 article on the meaning of the
Second Amendment was both thought provoking and in many particulars
quite...correct. It does at first glance seem unreasonable, given the
peculiar wording of the Second Amendment, to lump it in with other,
differently phrased articles contained in the Bill of Rights. The unique
extra verbiage - which cannot be meaningless gloss - that "A well regulated
Militia, being necessary to the security of a free State..." sets the Second
Amendment apart from the others, for no other article within the Bill of
Rights contains its own internal justification.
This wording - and there is no reasonable way around it - also
suggests through the use of the term Militia, the entire population of able
bodied adult males of an age to bear arms and organized or organizable into
groups of combatants, that the right to keep and bear arms is for a
collective purpose.[1]
To accept that the Second Amendment serves a collective purpose,
however, is not to concede that it is merely a collective right. Consider,
for example, the First Amendment, or rather those clauses of it concerned
with freedom of speech and of the press. These rights are exercised
individually, by newspapers, other media, the individual members of their
staffs, and individual citizens. Its purpose, on the other hand, is to
secure the liberty of the collective by giving widespread airing to even
unpopular or anti-governmental views.
There is, therefore, no obvious contradiction between the
exercise of an individual right and the service of a collective purpose. As
with freedom of speech and of the press...or of other guaranteed liberties -
free assembly, freedom of conscience through freedom of religion, the right
to have one's home free of spies in uniform, the one can serve the other
quite handily: individual freedoms, freely exercised, preserving the freedom
of the group and of each member in it.
It is not necessary, however, to claim that the right to keep and
bear arms is individual in order still to maintain that the Federal
Government has no legal power to infringe it. While legislative history
surrounding the framing of the Constitution may be considered either murky,
partisan, non-existent, or of limited utility, the history of the nation is
plain enough. At the time of the drafting of the Constitution we had but
recently emerged from a great revolutionary, and effectively also a civil,
war. Even after that revolution, and still faced with a world beyond our
borders both powerful and hostile, in some cases implacably so, the Thirteen
Colonies refused to set up a true nation, adopting instead the Articles of
Confederation.
Despite the failure of the Confederation it was neither with
universal joy unstinted nor limitless trust that the various states chose to
adopt the Constitution. The framers had seen the misuse of government power,
the perversion of law as a tool of oppression. They could not help but be
aware that the Revolution had begun with the attempted seizure, by forces of
the British Crown, of weaponry owned both privately, by individuals, and
collectively, by non-governmental groups and the Militia of the colony of
Massachusetts. The first six amendments to the Constitution reflect
perfectly the Crown's attempts at oppression prior to and during the
Revolution: infringements of speech and of the press, seizures of arms,
quartering of soldiers on the populace to serve as de facto spies, etc.
That, given this history, the Bill of Rights was required for
ratification of the Constitution speaks eloquently of the distrust of
governmental power felt by the states and by their citizens. Each of the
other of the first six amendments placated this distrust in their own ways.
The Second Amendment did so by insuring that the Federal government could
not deprive the states of their right of revolution, which existed in the
arms held by right, and the rights held, by their citizens - the
"people".[2]
Nor is there any reason to believe that the term "people" is
synonymous with "State". Present in the Second Amendment and repeated in the
10th, people and state are plainly different, otherwise there would be no
reason to mention both. No more can we say that "State" and "United States"
are the same. We must assume the framers knew what they were doing. The
beauty and poetry of the language; its clarity; the fact that the
Constitution has served us so well for over two centuries - all argue that
the framers knew full well the import of every carefully chosen word.
Therefore, it is the right of the "people" to keep and bear arms that the
Federal government may not infringe, even though that also serves to prevent
the Federal government from disarming the states.
Thus it is easily seen that the Second Amendment was at least
minimally intended to be a guarantee of the collective right of a state or
group of states to revolt against a potentially oppressive national
government through non-interference with the states' citizens' individual
right to the means of revolt; weapons, specifically militarily effective
firearms.
Under this view there is no "irresolvable practical problem"
inherent in granting the people the right of armed insurrection. The legal
right, which might be better said to be the legal and practical right, to
maintain armed forces suitable for revolt - even if only potentially, rests
with the states. It rests with their ability to raise their militias, which
are not merely that minor spin off of the militia, the National Guard, but
rather - by tradition and law - the people as a whole.
Concerning the National Guard, the organized militia, one must
repeat that it is merely a part, a small part, of the militia as a whole.
Nor is it an entirely satisfactory part if it is expected to serve as a
potential means of revolution. With under half a million men and women, and
at one weekend a month and two weeks in the summer, the Guard is both too
small and too indifferently trained to serve as a counterweight to federal
reserve and regular forces numbering in the range of two million.
Of course the unorganized militia is not merely poorly trained,
it is essentially untrained. Nonetheless, with something like one hundred
million men (and potentially a like number of women), the unorganized
militia is a terribly strong counterweight to Federal forces so long as it
possesses the means and the will to preserve liberty.[3]
This is so even if one does, as one should, include the National
Guard under Federal force rather than state militia. Consider: the Federal
government pays the individual members of the Guard, pays their retirement
checks when they reach age sixty, and pays for their training. The Federal
government owns the Guard's arms and equipment and can withdraw them at
will. The Federal government presides over the structure - combat or non-
combat - of the Guard's units. The legal commanders-in-chief of the various
National Guards, the state governors, can no longer even withhold their
National Guards from Federal service.
In short, in no way does the National Guard any longer serve the
purpose of the Second Amendment, to preserve the means of effective
revolution in some hands other than the Federal government's.
As a practical right, however, no measure, to include outright
repeal of the Second Amendment, can remove the right of revolt from the
states or their citizens. Neither could any government grant such a right.
This is especially true if one takes the admittedly non- progressive, but
thoroughly Constitutional, view that government is the creature of the
people, deriving its rights and powers from them and not, as Mr. Craco seems
to assume, the other way around. The right to revolt is inherent in
sentience (to include sentience of a fairly low order; even a mule can
revolt).
One might well ask, if the right to revolt is inherent, what need
there is for guns to preserve that right. The answer is simply this. The
right to possession of firearms, and the fact of such possession, addresses
the likelihood of success. Likelihood of success, in turn, addresses the
degree of oppression up with which the people will put before revolting.
But will not the law and the political process prevent
oppression? Lawyers, naturally enough, disparage violence and look to these
things to prevent or, prevention failing, right wrongs. This helps to
explain their general antipathy towards the Second Amendment which seems so
obviously violence oriented and anti-political as to appear undemocratic.
Lawyers, perhaps, should not be so complacent. That same rule of law which
has given us such milestones in individual liberty as Dred Scott[4] and Buck
v. Bell[5], and which upheld the internment of Japanese-Americans during the
Second World War[6], does not appear nearly infallible...or necessarily
just.
The political process, while it has often done great good, can
still subject minorities to disadvantages ranging, in the case of
Native-Americans, nearly to extinction. In their case in particular the
political process, the democratic majority voice, has mandated outrages that
the unarmed legal system has proven powerless to prevent.
Therefore the Second Amendment is frankly undemocratic, in the
sense that it permits even a minority to have the means of revolt in lieu of
acceptance of perhaps arbitrary and dangerous majority positions. Indeed,
the revolutionaries of 1776 were but a small minority, perhaps a third of
the population of the thirteen colonies. Of course, they were acting
extra-constitutionally. Are we to say now they were wrong? If so, is the
Constitution therefore invalid?
Virtually every democratic government in the world came about,
now and throughout history, through armed revolution by some substantial
part, but not always a majority, of its citizenry against its predecessor
government. This is especially true of those far from anachronistic (the
late and lamented Dean Roscoe Pound's opinion notwithstanding) militia based
armed camps known as Israel and Switzerland.
Therefore, though I will not claim that the framers had the fixed
intention of providing for minority revolt outside of, perhaps, a minority
of states, I do maintain that this is at least a beneficial side effect.[7]
The Second Amendment allows citizens, suicidally if alone, more effectively
in large groups, to proclaim: "Vote as you will. But remember, the vote is
but one way, and an inaccurate one at that, of measuring real - as opposed
to merely theoretical political or judicial - power. You have yet to tally
the level of real power. We have the will. We have the means. Together they
make real power. Oppress at your peril."
The Second Amendment may not directly address, was probably never
conceived as being in that more innocent age, an intended answer to
internment camps for Japanese- Americans, or the Warsaw Ghetto[8] for that
matter. It can provide a partial solution and deterrent to such.
The question remains; "How can / why should a government enshrine
the means of its own overthrow?" As Mr. Craco phrased it; "The
Constitution's objective was to create government..." The question is
pointed and Mr. Craco's observation at least half true. Yet creation was not
the whole purpose behind the Constitution. Indeed creation of a republican
government would seem to have been to little point without some thought
being given to its preservation...as a republican government.
Here the Second Amendment, in conjunction with the rest of the
Bill of Rights, serves its purpose. It does so not in overthrowing the
government necessarily (surely something no sane person wishes either to see
or to see become necessary) but rather in making it clear that, whether in
the hands of the states or in the hands of the people, the means exist to
overthrow that government, thereby discouraging that government from ever
mutating into one which must be overthrown.
While it could be argued that no article of the Bill of Rights
would remain as secure if any of the others were undermined or repealed, we
may limit discussion of their mutually reinforcing character to the
interdependence between the Second and First Amendments.
The First Amendment may be fairly characterized as incapable of
self defense against a government gone oppressive and determined to preserve
or expand itself. Peaceable assemblies can be declared riots and suppressed
by soldiery and police. Presses may be smashed with impunity by a government
sufficiently powerful and ruthless. Threats of imprisonment, torture,
retaliation against loved ones, and death are historically sufficient to
quiet all but the bravest tongues. Moreover, even very brave tongues are
quieted by death.
Likewise, and the National Rifle Association seems not fully to
appreciate this, the Second Amendment is incapable of effective defense on
its own, no matter the incidence of ownership of so-called assault rifles.
Unless citizens are free to speak, to gather, to be a part of a community -
not lone spirits, they will not generally resist oppression, even if armed,
Ruby Ridge and Rambo notwithstanding.[9]
Together, however, the First Amendment allows citizens to know
they are not alone and to make a stand confident of support when there is a
cause worthy of support, with the arms guaranteed by the Second Amendment.
Therefore it is not to enshrine the means of its own destruction
that our republican Constitution includes a right to the means of
revolution, and the right to speak of it and discuss its need, but rather to
preserve a true republican government and not merely the forms of one. In
this way, the Second Amendment is not suicidal but self-preservational.
There is a lovely quotation, oft cited by the American Civil
Liberties Union, from an anti-Nazi man of the cloth, One Pastor Martin
Niemoller. It goes to the effect that "First they came for the Communists
and I didn't object because I wasn't a Communist. Then they came for the
trade unionists and I didn't object because I wasn't a trade unionist..."
The quote goes on to Jews, Catholics, etc. and ends with "And then they came
for me and by that time there was no one left to object."
This is a lovely, stirring piece of prose. As a matter of
historical record, however, Pastor Niemoller got it wrong. Perhaps learning
from the British mistake of first oppressing and then going after the arms,
the Nazis first went after the guns and only then began widespread and
serious governmental oppression (as opposed to that oppression done merely
by Hitler's NSDAP as an extra-governmental political party). However, the
Nazis need not have restricted themselves to lessons learned from the Crown.
In first going after private arms and then establishing an autocracy the
Nazis were following the practice of modern tyrants ranging from Tokugawa
Ieyasu to Mussolini and Lenin. The lesson has not been lost on the Mao's,
Idi Amins and Pol Pots of yesterday's headlines.
It would be a strange thing if the framers, given their own
experience of the Revolution and its preludes, the known history of
oppression throughout the world up to their time, their own awesome genius,
their realism, and their dedication to republican principles, had intended
that militarily useful arms - or even all arms - be kept out of citizen
hands, that the state militias be reduced to a paid National Guard and made
utterly subordinate to the national government, that their successors in
office be unrestricted and irresistible should they choose some day to
exercise arbitrary and tyrannical power, and that - despite taking great
care to separate Federal political power, and Federal from state power -
should have placed all ultimate coercive power in Federal hands. Given
modern history, fortunately - so far - foreign modern history, one might say
that the framers were more than geniuses; they were positively prescient in
not so arranging our Constitution.
"But," one hears in the background, "the framers were familiar
with mere muskets. They could never have envisioned assault rifles or large
capacity pistols that can fire dozens of shots in seconds." Could they not?
Repeating arms had been widely, if inaccurately, conjectured by 1787 and a
few poor prototypes built. Moreover, cannon capable of firing not dozens of
projectiles in seconds but hundreds in an immeasurable fraction of a second
were apparently permissible and in hands neither Federal nor state.[10]
There is no reason to believe that the framers were ignorant of the
technological world of their day and its potentials.
It is not to be expected that this little piece will influence
pro-gun control readers any more than printing Mr. Craco's article in a
National Rifle Association magazine would convince anyone in the NRA of his
arguments. The two sides have grown so far apart that, like abolitionists
and slave holders prior to and during the Civil War, on this issue as on
that, they can neither speak the same language nor feel the same emotions.
Consider the following hypothetical. Imagine, hard though it be,
that some state should decide to reinvigorate its Militia Act, possibly to
undermine the private "militias" that feature so prominently, and generally
undeservedly, in the news. Typically such acts define the militia in two or
three tiers: the National Guard, sometimes the State Guard or State Militia,
and the unorganized militia, which is minimally composed of all able bodied
adult males.
In its reinvigoration, said state greatly expands its State Guard
(or State Militia), say to include everyone of good character (neither
felons nor anyone convicted of a crime of domestic violence accepted) from
those willing to volunteer for such standing from the unorganized militia.
The state collects money from the volunteers and uses that money to
purchase, on their behalf, militarily effective arms - real assault rifles
able to fire on full automatic, grenade launchers, machine guns, mortars,
cannon - tanks and jet fighters just possibly.[11]
To carefully keep within the United State's Supreme Court's
guidance on the need to be in an organized militia to be protected by the
Second Amendment, the state further limits the volunteers to those who have
completed a basic Federal course of military instruction or some, perhaps
much shorter and probably less stressful, state equivalent. Further in the
interests of being "well regulated", volunteers are organized into regiments
perhaps bearing the traditions of disappeared state organizations (54th
Massachusetts Volunteer Infantry...or 4th Virginia?). Volunteers are
required to muster once annually to demonstrate proficiency with their arms.
Volunteers are required to keep their arms and ammunition in their
possession or at home. To encourage proficiency, volunteers are also
encouraged to carry their arms at all times.
Is this constitutional? Is it beyond the power of the Federal
government to infringe
upon?
The Constitution states plainly, without commentary upon the
requisite size, that a "Well regulated militia [is] necessary to the
security of a free State." No branch, nor every branch of the Federal
government acting together, has the power to gainsay this.
"Well regulated" would appear to be a relative expression. What
is well regulated for a militia is not the same as what is well regulated
for a professional force. Still, it would seem that demanding preliminary
training and an annual muster in regiments would more than meet this
traditional requirement. It would also seem to be constitutionally difficult
for Congress to combat this by radically changing the traditional
understanding of the service requirements of a militia.
Having met the first two obvious tests, the rest of the
Constitution speaks plainly and nothing the courts have said is contrary.
The Federal government may not infringe the keeping and bearing of arms by
people who are in a well regulated militia which is constitutionally
necessary to the security of a free state. (Perhaps a better question, and
one which cannot be discussed here, is whether this would make the National
Firearms Act of 1934 and its sequelae unconstitutional to apply to such
State Guard members. Would these laws become unconstitutional, or merely
impossible, to apply in any given case?)
If this constitutionally perfect and judicially unassailable
programs fails to appeal to the reader one must ask why. The answer, of
course, is that the reader simply loathes the Second Amendment, for whatever
reason or reasons, and wishes it repealed or rendered defunct through some
other, non-constitutional, means. One feels compelled to point out, however,
that the last time any substantial group of Americans felt so strongly about
a purely domestic issue, a threatened "right" (slavery, see above), the
result was genuine civil war.
One suspects that it is infuriating to advocates of gun control
that pro-Second Amendment citizens resist their efforts so intractably as
even to seem to malign their motives. What is further a pity, and a
dangerous situation, is that gun control advocates, sublimely sure of their
virtue and rightness, fail to understand the fury that they inspire.
It is of no help to their standing with pro-gun rights citizens
that the legacy of gun control in this country began with the "Black Codes"
of the post Civil War South that had as their aim the oppression of black
citizens. That the Gun Control Act of 1968 drew so many of its key
provisions in nearly word for word translation from Hitler's law restricting
firearms possession from the hands of his potential enemies places the
modern gun control movement in no savory historical company.
Gun control advocates might do well to consider a second
hypothetical: What if the Supreme Court did decide that the Federal
Government lacked the authority to infringe upon militarily effective, or
indeed any, firearms? What if it were to be decided that, under the 14th
Amendment, states also were barred from implementing firearms restrictions?
Impermissible? Outrageous? Intolerable?
Intolerable. And that is precisely how pro-Second Amendment
citizens feel about attacks upon what they perceive as an absolute right
under the Second Amendment. What gun control advocates would contemplate or
do to prevent the Federal government from enforcing this liberty, others
might do, or even more, to preserve and promote it.
And gun control advocates are not trusted by firearms rights
advocates. The anti-gun movement speaks of gun control and crime control as
if they were synonymous. Yet those states and cities with the most
restrictive gun control laws have also been those with the highest crime
rates. Admittedly, crime in some of those places, particularly very large
cities, would be greater than the national norm in any event. Perhaps it is
so that only extremely restrictive gun control has kept as much of a lid on
crime as has been achieved. Moreover, it may be claimed, crime nationally
has been dropping even as laws restricting guns have become more widespread
and thorough.
Which might be persuasive but for two things. Some dozens of
states across the nation have in recent years, rather than further
restricting firearms rights, granted far more liberal rights to concealed
carry of a handgun through "Show Cause" and "Shall Issue" laws. In at least
one such state, Florida, violent crime has dropped to a dramatic degree, far
more than the national average.
Moreover, the idea of gun control as crime control is simply
contra-intuitive to pro- firearms rights people. With firearms laws almost
more restrictive than could be imagined in this country, Scotland
experienced a recent and horrid massacre of school children differing little
from one which occurred in a California McDonalds. Australia, too, has had
its massacre despite very tight restrictions. Similarly, Canada - despite
extremely restrictive anti-gun laws - had its university massacre. Neither
did law serve to prevent the mass shooting of innocent subway riders in New
York City. Curiously, Switzerland, with a government provided fully
automatic weapon in over half of its households, has had no such incident.
To a pro-gun rights citizen, however, the answer to each of those
obscenities, or at least the key to preventing their reoccurrence, is
obvious. Since lunatics are rather badly outnumbered by the reasonably sane
and responsible, freely and widely owned and borne firearms could have, in
each case, limited the damage by deterring, and if necessary eliminating,
the perpetrator. This is not to say that the purpose of the Second Amendment
is crime control or even that most pro-gun rights citizens believe it is. It
is merely a beneficial side effect, as gun control is perceived as having
the opposite effect.
So, with whatever justice, when gun control advocates claim that
gun control is crime control the claim falls on ears not deaf but red with
anger at what is assumed to be a willful lie.[12] Many people, and not
merely the thoroughly pathetic unofficial civilian "militias",[13] have been
forced to ask themselves what motive could be behind gun control when its
stated motive seems to them so completely impossible that no intelligent
human being could put credence in it.
Nor should advocates of gun control be so confident of their
ultimate victory. They should not even be confident of preserving what they
have gained for their cause. As Mr. Craco mentioned in his article, for the
first time in modern history a Supreme Court Justice has raised the
possibility that the Second Amendment means something very like what the NRA
claims it to mean. In Casey v. Planned Parenthood the Court suggested that
all of the first eight amendments were fundamental individual rights.[14]
Unprecedentedly, twice in the last three years the Supreme Court has struck
down gun-control measures, albeit on other grounds (which is not
unreasonable since the laws in question were gun control laws disguised as
something else).[15] Moreover, a bill, House Bill 339, has been introduced
into the House of Representatives which, if passed, would require any state
that permits any of its citizens to carry a concealed handgun also to permit
the citizens of any other state who have concealed carry permits to carry in
that state. Even the old standby of Miller v. United States serves to do no
more than establish that the Federal government can limit weapons only so
long as those weapons have no relationship to a well regulated militia.[16]
Neither is it any longer true that the bulk of legal scholarship
stands firmly in favor of the constitutionality of Federal gun control. In
recent years extremely well respected law professors, themselves by no means
pro-gun fanatics, have published articles in the very highest echelons of
American law reviews which support the view of the Second Amendment as
establishing an individual right to keep and bear firearms or, at least, a
right which exists somewhere and which the Federal government lacks
authority to infringe.[17]
Therefore, despite unquestioned political and legal successes in
the past, the gun control movement can still lose in the courts and through
the political process. Given the depth of feeling this issue engenders on
both sides, feelings as profound as any that shook the country in the middle
of the last century, it is not so clear that it is ultimately possible for
the gun control movement to win, whatever may be decided politically or
through the courts. So long as the First Amendment remains strong, and gun
owners and advocates need not feel alone, resistance remains a possibility.
Beyond the lunatic fringe of the "militia" movement are the large mass of
citizens which it cannot be assumed will remain acquiescent in the face of
the what appears to be a movement to completely disarm them for no true and
valid reason and suspected, if inarticulable, bad reasons. For any issue
less sacred than ending human slavery or preserving the country as an
undivided whole we ought tread very lightly indeed before disturbing
emotions of this depth and intensity.
[1] As an aside, isn't it time and past time to number women among the
ranks of the militia?
[2] See Justice Hugo Black's dissent in Adamson v. California, 67 S.Ct.,
1672, 1685 (1947). Whatever the merits of the decision in the case, Justice
Black's observations on the adoption of the Bill of Rights seem
unassailable.
[3] The "embattled farmers" of Concord Green and the 15 to 20 thousand
Minutemen who rallied against the 600 odd British regulars and drove them
back to Boston in April, 1775 are an excellent illustration that, in war,
quantity has a quality all its own. It would seem, too, that the Viet Cong
had something to say about the utility of citizen soldier riflemen against
even the most modern jet fighters.
[4]Scott v. Sanford, 60 U.S. 393 (1857).
[5]Buck v. Bell, 274 U.S. 200 (1926).
[6] Korematsu v. United States, 323 U.S. 314 (1944).
[7] Of course, since the Revolution began not with the colonial governments
but in the hearts and minds - and eventually actions - of individuals, the
framers may have had this in mind.
[8] In 1944, the Nazi death machine finally turned its attention to the
extermination of the Jewish residents of the Warsaw Ghetto. Previously
cleared ghettos had gone down without a struggle. Warsaw proved a different
case. With illegally acquired weapons the Ghetto's defenders initially drove
out the Nazis who had come for them and their families. Today we regret that
their cause was lost. Still, we should be justly proud of the men and women
who caused the SS troopers to exclaim in their hasty retreat; "Liebe Gott,
die Juden haben waffen!" ("Dear God, the Jews have guns.")
[9] See, generally, Men Against Fire, S.L.A. Marshall for a discussion of
the relative courage of soldiers when alone and when in a group. There will,
or course, always be a few people, transcendentally motivated, who will
fight even if alone...as occurred at Ruby Ridge. Rambo is a myth.
[10]Private merchant ships, for example, were usually armed with cannon.
Moreover, cannon in private hands have appeared, and been photographed, at
least as recently as the troubles in Kansas just prior to the Civil War. The
small cannon targeted for seizure by the British troops at Lexington and
Concord were in private, not government, hands.
[11]Not so far fetched: world class tanks, rebuilt to be sure, have been
offered for sale by the Ukraine for as little as $60,000. A MiG-21 jet
fighter can be had for a bit over $2,000,000. Since the fall of Soviet
Communism even attack submarines can be had at a bargain price.
[12] Which may be unfair. A movement that under the rubric of crime control
can push through bans on small caliber, cheap and unreliable weapons
("Saturday Night Specials"), thereby driving criminals to adopt larger
caliber, more reliable and effective weapons, is unlikely to be a terribly
competent threat, establishment of tyranny-wise. Similarly, the ban of
rifles with bayonet lugs, no doubt in response to the incalculable (because
non-existent) number of drive-by bayonetings experienced in this country,
establishes some proof of the non-existence of any hidden rational purpose.
[13] Fortunately, since there is really only one issue around which the
modern "militiamen" can rally, and since that issue is completely within the
power of the Federal government to control, the "militias" pose little
problem of control and suppression. Their core value is the uninfringed
right to arms. The Federal government need merely cease that infringement
and the "militias" can be expected to wither and die. As suggested above, a
state could also undermine the "militias" by effectively incorporating and
controlling them.
[14] Planned Parenthood v. Casey, 112 S.Ct. 2792, 2804-5 (1992).
[15]United States v. Lopez, 115 S.Ct. 1624 (1995). Printz and Mack v.
United States, 117 S.Ct. 2365 (1997).
[16]Miller v. United States, 307 U.S. 174 (1939). Although in Miller the
Supreme Court had no notice of a such a relationship it is perhaps worth
noting that the type of weapon at issue, a sawed off shotgun, was in fact
used in both World Wars, Korea, and Vietnam. That they were not used in
Grenada, Panama, and the Persian Gulf has more to do with the short duration
of the fighting than with the utility of this type of weapon. What is more,
today between 20 and 30% of Army dismounted infantry and 12% of Marine
infantry carry weapons, grenade launchers, that become sawed off shotguns
with the simple insertion of a round of ammunition containing buckshot.
Perhaps when judges render military opinions those opinions ought be taken
with a grain of salt.
[17]William Van Alstyne, The Second Amendment and the Personal Right to
Arms, 43 Duke L.J. 1255 (1994); Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L.J. 637 (1989). In other words, I'll see your Drayton
Law Review with a Duke and raise you a Yale.