From a fellow Texan, many thanks for this article. It is well-written and most helpful.
The thing many don’t understand about the Second Amendment is that it is about a right that exists independently of the Constitution.
The Second Amendment was at least inspired by by a similar right in the British Bill of Rights of 1688. Unlike the British right, however, the American vision of the right was that it was a human or civil right that applied to all citizens, regardless of social class or religious affiliation. This is one of the primary reasons for many of the Jim Crow laws that were enacted during the Reconstruction as former Confederate states sought to keep weapons out of the hands of former slaves. Even in Texas, the Act of April 12, 1871 was written to prevent blacks, Native Americans and certain political opponents of the sitting legislators from carrying handguns or a laundry list of other weapons. The law applied to everyone and was the strongest prohibition on carrying handguns in the U.S. for more than a century, but enforcement was decidedly selective.
David Grace, in his May 2 rebuttal, cited James Madison but is incorrect in both his assumptions and conclusion. The militia clause is, as the late Supreme Court Justice Antonin Scalia noted in his majority opinion in District of Columbia v. Heller (2008), a prefatory clause the introduces, but does not limit, the operative clause. Madison was a brilliant man, highly literate and well-versed in writing legislation so one is forced to assume he understood the meaning of the words he wrote.
While the Bill of Rights was being debated, numerous members of the Founding Fathers, including Thomas Jefferson, Samuel Adams and Patrick Henry spoke or wrote of the necessity of an armed populace to resist tyranny. While Madison did write of the importance of a militia, he believed that it still had to be composed of citizens with their own weapons. Madison himself wrote “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” (Federalist 46, January 29, 1788)
The federal government itself defined the militia in the Militia Act of 1903 which recognized two separate militias: the organized militia (the National Guard) and the unorganized militia composed of all able-bodied men between the ages of 17 and 44. There was never anything said about whether the weapons were to be stored in a certain location or whether potential militiamen was expected to keep them in their homes or places of business but the members of the unorganized militia were clearly expected to furnish their own.
In the Supreme Court decision in United States v. Miller (1939), Associate Justice James McReynolds wrote: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
The decision is sometimes cited as proof that the Second Amendment applies only to a collective right or only in relationship to service in a militia, but that isn’t what McReynolds wrote. The narrow ruling applied only to the constitutionality of the National Firearms Act of 1934, which had been challenged on the grounds that it usurped states’ rights. In other words, the court decided that the Second Amendment protected only the citizens’ right to keep and bear arms suitable for militia use. McReynolds correctly noted that sawed-off shotguns were not in common usage in the National Guard. Had the case been regarding a machine gun, the decision might have been different as the National Guard at that time did use both the Thompson submachine gun and the Browning Automatic Rifle.
It’s also worth noting that the National Firearms Act did not prevent a citizen from owning a machine gun, a saw-off shotgun or a short-barreled rifle. It only required that they be registered and that transfers be approved. The Hughes Amendment to the Firearm Owners Protection Act of 1986 forbade the sale of new fully automatic weapons manufactured after the effective date (May 19, 1986) but did not affect those already registered.
Given that the current standard-issue weapons of the National Guard are assault rifles and pistols with high-capacity magazines, it would be interesting to see a challenge to the current restrictions based on McReynolds opinion.
Too many modern interpretations of the Second Amendment show that proponents of additional restrictions either do not understand the history and context of it or willfully ignore them. It is important for all of us to resist both ignorance and duplicity and to push back.