Constitutional Times: Senator Feinstein on the 2nd Amendment

Thank you for writing to me about the Second Amendment. I have spent a great deal of time working with this issue and would like to share my thoughts and analyses.

The National Rifle Association would like people to believe that the Second Amendment to the Constitution gives every individual the right to own any kind of weapon, no matter how powerful or deadly, and that the government has no right to regulate in this area. However, the record is clear: the Supreme Court has never struck down a single gun control law on Second Amendment grounds. I feel strongly about correcting what I call "the Second Amendment Myth," so let me go through some facts regarding this debate.

The Second Amendment says: 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.

The National Rifle Association (NRA) rarely mentions the words "well-regulated militia". In fact, most of their literature shortens the clause so that the amendment simply reads "... the right of the people to keep and bear arms shall not be infringed." Clearly, the NRA is leaving out half the story (the story of a time when our Founding Fathers wanted to ensure that individual States would be able to protect themselves from a tyrannical Federal government by arming well-regulated State militias) in other words, today's National Guards.

The meaning of the Second Amendment has been well-settled for more than 60 years ever since the 1939 U.S. Supreme Court ruling in United States v. Miller. In that case, the defendant was charged with transporting an unregistered sawed-off shotgun across state lines. The Court held that the "obvious purpose" of the Second Amendment was (to assure the continuation and render possible the effectiveness) of the state militia. Because a sawed-off shotgun was not a weapon that would be used by a state militia (like the National Guard), the Second Amendment was not applicable to that case, said the Court.

All told, the Supreme Court has only chosen to address this issue two more times after the Miller case. And each time, the verdict was clear (the Second Amendment is not a bar to gun control laws. In 1969, in Burton v. Sills, the Supreme Court dismissed a challenge to New Jersey's strict gun control law, "for want of a substantial federal question." Then, in the 1980 case of Lewis v. United States, the Supreme Court held that "These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." And the Court continued that "the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia.""

In the early 1980s, the Supreme Court had another opportunity to address this issue, but simply ruled to leave the established precedent in place, rather than take up the Second Amendment argument. Furthermore, at least twice -- in 1965 and 1990 -- the Supreme Court has held that the term "well-regulated militia" refers to the National Guard.

And the history is clear through countless cases in the lower federal District Courts and Courts of Appeal as well. Let me just cite a few recent examples. In 1999, in the case of Gillespie v. City of Indianapolis, the Seventh Circuit Court of Appeals held that there is no individual right to bear arms.

Also in 1999, the Ninth Circuit even more specifically addressed the "militia" question, clarifying that only a State militia, not a private militia, is covered by the Second Amendment.

In the 1998 case of Peoples Rights Organization v. Columbus, the Sixth Circuit refused to overturn an ordinance banning assault weapons on Second Amendment grounds.

In U.S. v. Scanio, also in 1998, the Second Circuit held that the Second Amendment provided only a collective right to bear arms for States in organizing militias, and not an individual right.

The Third Circuit held in the 1996 U.S. v. Rybar case that the defendant's possession of machine guns was not connected with militia-related activity and that the Second Amendment furnished no absolute right to firearms.

The list of cases goes on and on dozens of instances in Federal Courts of Appeal around the country, and countless others in the lower Federal District courts.

Perhaps this history is what led former Supreme Court Chief Justice Warren Burger in 1991 to refer to the Second Amendment as "the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime...[the NRA] has misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see -- and I am a gun man." This was Warren Burger (a Nixon appointee to the Court).

Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a "Saturday Night Special" or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."

And the NRA is clearly aware of this history. Despite all of the NRA's rhetoric and posturing on this issue, they know that the Second Amendment does nothing whatsoever to limit reasonable gun control measures. In fact, in its legal challenges to federal firearms laws like the Brady Law and my Assault Weapons Ban, the National Rifle Association has made no mention of the Second Amendment.

Nonetheless, many on the other side of this issue may point to the one, single, lone exception to the long history of Second Amendment jurisprudence. On March 30, 1999, a United States District Judge in Texas struck down a federal law making it a felony to possess a firearm while under a domestic restraining order. In the Texas case, a man in the midst of a divorce proceeding was accused of threatening to kill his wife's lover. Although put under a restraining order and therefore barred from possessing a firearm under federal law, the man was subsequently caught with a gun and indicted for violating the ban. U.S. District Court Judge Sam Cummings dismissed the indictment, in part because the federal law, he said, had the effect of "criminalizing" a "law-abiding citizen's Second Amendment rights."

This was the first time such a decision was made by a federal judge, but it is important to note that this decision has been appealed. There is absolutely no reason to believe that the Supreme Court, if the case reaches that level, would uphold this decision. Since that 1999 decision, two federal courts, including a higher Circuit court, have ruled that the Second Amendment does not guarantee an individual right to keep and bear arms.

Once again, thank you for writing me with your concerns. I have given a great deal of thought to this issue and so I hope this letter serves to clear up my position on this issue.

Sincerely yours,

Dianne Feinstein United States Senator
http://feinstein.senate.gov

Editor's Comment: Obviously the senator chooses the context that will fit with her beliefs even though far more knowledgeable experts disagree with her interpretations.