Newsgroups: talk.politics.guns From: "Paul Hager" <[h--ge--p] at [cs.indiana.edu]> Subject: ICLU 2nd Amendment debate heats up Date: Fri, 1 Jul 1994 10:19:43 -0500 ICLU 2nd Amendment Debate It has been some time since I've posted about what is happening with the Indiana Civil Liberties Union (ICLU) and the impending vote on a new policy that recognizes that the 2nd Amendment protects an individual right. Over the past month or so, there has been some slippage of support. One key supporter, Randy Paul, did a complete 180 after reading the memo which I have appended immediately below. He had been wavering, however, chiefly because a handful of members had expressed their opposition -- despite having read none of the Commission's material -- with one threatening to quit the Union if the new policy was adopted. It was at Randy's request that a statement of the "collective right" case be generated. His claim was that the Commission report was "tainted" because both sides were not presented. Alex Tanford, the person who wrote the memo, has also slipped some -- how much I'm not sure. He says that he still thinks there is "some degree" of individual right but would only favor a policy that allowed for liberal regulation "in the interest of public safety." Alex says that his position has shifted away from the individual right position after having read Joyce Malcolm's book. Though ostensibly a "devil's advocate" piece, I expect the "collective right" memo will be used as an intellectual fig leaf to provide a way out for people who don't want to face this issue. I have prepared a response to the "collective right" memo which is appended directly after it. I also contacted Prof. Robert Cottrol and Prof. William Van Alstyne requesting that they critique the legal reasoning in the memo. I sent a copy of the memo to Prof. Joyce Malcolm, who wrote _To Keep and Bear Arms_ and requested that she review its historical assertions. And, I set a copy to Prof. Don Kates whose response I have appended at the end. The material that follows it pretty much self-explanatory. It is my view that the collective or states' right case is a nullity. I'm hoping that the response will slam dunk this thing so thoroughly that no one will honestly be able to support it. There is a July ICLU Board meeting where the issue may be further discussed. The "collective right" memo and my response is being sent to Board members in advance of this meeting. I would, of course, be interested in any comments pro or con about the following material. --paul hager -------------------BEGIN TANFORD MEMO---------------------- The Other Side of the 2nd Amendment Debate Alex Tanford A. SUMMARY History reveals little support for an individual right to keep and bear arms. In 17th century England, all citizens had the duty to privately purchase and maintain the arms needed for war because the Crown couldn't afford it. It was not originally a "right," and the King routinely disarmed groups who opposed his policies. In 1688, a right of Protestants to have the arms necessary for common defence was created, but it had three limitations -- it never applied to concealable pistols and crossbows favored by highwaymen, it was explicitly made subject to regulation by Parliament, and it had nothing to do with individual rights. When the US Constitution was enacted, only one of the 13 states had a constitution that guaranteed an individual right to keep weapons. The others were either silent or provided only for collective defense of the village and state. The delegates to the Constitution Convention and early Congresses were concerned with the federalist/anti-federalist debate, not individual libertarianism. In the second amendment context, the issue was whether the states or the new federal government would control the militia. There is no record of anyone suggesting the power lay in individual citizens. The reason the militia was important in 1780 was that it served a unique social function. It was the vehicle through which all adult males in the community gathered to discuss issues of civic and political importance, and young men were initiated into adulthood. It enforced civic conformity and put down (by force if necessary) dissent. It presupposed universal gun ownership so that no small group could seize power, and presupposed universal social agreement that individual weaponry was a good idea. The right to bear arms was linked to this central idea of community, not individualism. Even if there were an individual or a community right to bear arms 200 years ago, that would not answer the question of what the second amendment means today. The constitution is always interpreted in light of contemporary socio-economic-political conditions. Just as we support a modern view of the rights of African Americans, women, and the gay community, we must support a modern view of the second amendment. Proper constitutional interpretation requires that we look not just at history and the intent of the framers, but also at logic, the social purpose of the original provision, the modern context, the recent history of violence among citizens, social necessity and our collective recent experiences with guns that can fire dozens of bullets in a few seconds. Modern social conditions suggest the need for a restrictive interpretation of the second amendment. Indeed, it may be that there is simply no meaning at all to the second amendment. The assumptions underlying it are no longer true. Militias no longer exist, and the second amendment (whether an individual right or a collective one) was inextricably tied to the existence of a militia. Shared community values no longer exist. A weak federal government that might easily be conquered by England no longer exists. Universal gun ownership does not exist, and could not exist because many people believe guns are too dangerous to have in the house. The best that can be said is that the second amendment recognizes a right of an individual to possess a single non-concealable gun and ammunition if that person is a member of a state militia and if that person has been properly trained in its use. The federal government may regulate but not ban such weapons, although it may ban handguns. The amendment imposes no limitations on the power of state government to regulate weapons, license people who own them, require training, and so forth. B. HISTORICAL ARGUMENT The most recent and most scholarly account of the history of the Second Amendment comes from Harvard historian Joyce Malcolm, in a 1994 book "To Keep and Bear Arms." 1. The disorder of the Middle Ages made popular participation in local peacekeeping a necessity to preserve order. Every (male) English citizen therefore had a duty to own a sword. 2. In the 16th century, England developed a true central government, but it lacked financial resources, so continued to depend on a citizen-army with a duty to bear arms but no right to do so. Any potentially dangerous segment of society (eg, Catholics) could be disarmed. 3. In the 17th century: a. As firearms replaced swords, the Crown maintained a monopoly on the production and distribution of gunpowder, in order to assure that private weapons were used only for proper purposes. b. There was still no police force in England. Each head of a household was responsible for protecting his own home, and (under the supervision of a constable) his village. However, the requirement that everyone help put down riots and insurrections as part of a posse comitatus was replaced by a trained militia -- a force that served both as police and army. The militia was under the orders of the King. c. From the invention of the handgun, its use was restricted because it was popular with criminals. It was never considered relevant to the right to bear arms. d. By the end of the 17th Century, the privilege of owning guns was limited to the upper classes, to protect their exclusive right to hunt. Killing of game by ordinary people was "poaching." e. Parliament wrestled control of arms and militia away from the King "in the name of the people," but they confiscated most private weapons and created central arsenals. 4. In the reign of William and Mary, Parliament passed the English Bill of Rights, which included a right to bear arms. It went through three drafts as follows: a. "It is necessary for the publick safety, that the subjects which are Protestant, should provide and keep arms for their common Defence." b. "That the subjects which are Protestants, may provide and keep Arms for their common Defence." c. "That the subjects which are Protestants may have arms for their Defence suitable to their Conditions and as allowed by Law." 5. In the early years of the American colonies, every colonist was required to own and carry weapons because of the dangers of living on the frontier. These laws had generally died out by the 1770's. 6. By the later 1700s, the colonies had become civilized, and weapons were generally stored in central armories. 7. The colonists objected to a standing (British) army, wanted it out of America, and wanted it replaced by a locally controlled civilian militia. This is the context in which there was any debate about the right-duty-privilege to keep and bear arms. For example, the Virginia Bill of Rights of 1776 said: "That a well regulated militia, composed of the body of people trained to arms, is the proper, natural and safe defense of a free state: that standing armies in time of peace should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. The Massachusetts constitution of 1780 recognized that "the people have a right to keep and bear arms for the common defence," and for no other reason. The North Carolina constitution was similar. New York went farther and commanded that "a magazine of warlike stores, proportionate to the number of inhabitants, be established [and] maintained ... in every county." Only Pennsylvania included a right to personal defense. 8. The supposed historical right to self-defense is found explicitly only in the Pennsylvania constitution among the original 13 states. Others contain no such reference, or only general preamble language that "all men are born free and equal and endowed with the natural rights to life, liberty, property, happiness and safety" which does not say whether it is the individual's or the state's obligation to provide for that liberty and safety. 9. The image of the typical 18th Century American as a Daniel Boone-type individualist frontiersman whose gun was always at his side is dubious. By the 1780's, most Americans lived in tightly knit authoritarian communities in which everyone conformed to a common set of social norms, similar to contemporary evangelical Christian communities. It is highly unlikely they had any clear notion of the individual apart from the community. They feared strong central federal government, not local government, and they drafted a constitution intended only to limit the power of that federal government. 10. The debate at the Continental Congress, and then before Congress when it considered the Bill of Rights, was whether the state or the new federal government would control the militia. There is no record of anyone suggesting the power lay in individual citizens. C. DOES HISTORY CONTROL MODERN CONSTITUTIONAL INTERPRETATION? The answer is so clearly "No," that little discussion is needed. In 1819, Chief Justice Marshall stated: This [is] a Constitution intended to endure for ages to come, and consequently, to be adapted to the various crises in human affairs. The constitution has always been interpreted in light of contemporary socio-economic-political conditions. One need only cite Roe v. Wade, Brown v. Board of Education, and Gideon v. Wainwright. Jethro Lieberman's book, The Evolving Constitution (1992) points out that Constitutional provisions have always been interpreted according to a blend of at least twelve principles: 1. Logic 2. Plain meaning 3. The social purpose of a provision 4. The constitution's structure 5. The intent of the framers 6. The context 7. All provisions must have been intended to mean something 8. History, especially English 9. Considerations of judicial economy 10. Considerations of social necessity 11. Growth of our collective experience 12. Precedent Thus, even if history and the intent of the framers support a broad individual right to bear arms, that in no way controls contemporary interpretation. Indeed, to ignore logic, social purpose, the modern context, the recent history of violence among citizens, social necessity and our collective recent experiences with guns that can fire dozens of bullets in a few seconds, is to do a bad job of interpreting the Constitution. D. PROF. DAVID WILLIAMS' ARGUMENT: 1. The militia was not a military unit; it was all adult male citizens, similar to the Hebrew temple or a Native American Indiana tribal council. It had several social functions: a) passing on of civic pride and tradition in a unified, non-diverse community; b) initiating young men into adulthood and teaching them their responsibilities to the community; c) serving as a forum for political debate; d) assuring a source of armed resistance against a tyrannical ruler; and e) protecting the community against dissident groups and troublemakers by force. 2. In the body of the US Constitution (Art. I, 8), Congress was given the power for "organizing, arming, and disciplining the Militia." When the politicians went home to try to sell the new constitution in their states, they discovered that many people viewed potential federal control of the Militia as a threat to their quasi-tribal way of life. It was as if the Constitution had given Congress the power to provide the vehicles for parades, and an outcry from Shriners followed that they might not be able to wear fezzes and ride miniature motorcycles. 3. The second amendment was adopted to assure people that they could continue to keep and bear arms, so that they could still gather together on weekends to train with their local militia and camp out. 4. Contemporary society is no longer defined by small, cohesive communities with shared values. The modern community is characterized by diversity, not conformity. 5. In the 19th century, militias degenerated into vigilante groups such as the Ku Klux Klan in the south, and the Posse Comitatus in the west. 6. The concept of a militia presupposed universal gun ownership so that no smaller group could seize power, and presupposed universal social agreement that individual weaponry was a good idea. 7. The assumptions underlying the second amendment are no longer true: a. Militias no longer exist, and the second amendment (whether an individual right or a collective one) was inextricably tied to the existence of a militia. b. Shared community values no longer exist c. A weak federal government that might easily be conquered by England no longer exists. d. Universal gun ownership does not exist (compare Switzerland). e. Universal agreement that having a gun in the house is a civil virtue no longer exists 8. Therefore, the second amendment has no real meaning in modern times. ------------------------END OF TANFORD MEMO---------------------- M E M O R A N D U M From: Paul Hager, Chair, ICLU Second Amendment Commission To: Board members and others Subject: Enclosed materials and response to "collective right" memo _________________________________________________________________ Because it was felt that more time was needed to discuss the recommendations of the Second Amendment Commission, the date for a final ICLU Board vote on the proposal is scheduled for September. It is expected that in the interval there will also be time for chapter input. During this period, it is my intention to make myself and other members of the Commission available to meet with chapters around the state and discuss our report and its recommendations. I am including with this memorandum, the published version of William Van Alstyne's analysis of the Second Amendment that appeared in the most recent issue of the Duke Law Journal. Prof. Van Alstyne is one of the country's foremost constitutional scholars, a long-time member of the ACLU, and a former member of the ACLU National Board. Board members will recall that his preliminary notes for this article were part of the report presented by the Second Amendment Commission. Incidentally, I should mention that the Commission generally favored scholars affiliated with the ACLU as sources. This was chiefly because we can reasonably expect that these scholars share our fundamental beliefs about civil liberties and it is less likely that their analysis reflects a hidden agenda or bias. I am also including two memos by Don Kates. The first of these is his analysis of the collective right memo. The second is an analysis of the implications for Federal gun control efforts if the Second Amendment is indeed a states' right, rather than an individual right. This second memo overlaps in part, but not entirely, an amicus brief filed by Kates and 20 other law professors in the U.S. Supreme Court case _United_States_v._ _Lopez_. I have included an excerpt from that brief as an Appendix herein. I have also contacted Professors Robert Cottrol (of Rutgers) and William Van Alstyne who have offered their assistance in analyzing the collective right memo. At the time I write this I have not yet received their responses but will make them available to the Board when I do. For those unfamiliar with Don Kates, I offer a short bio. Don Kates is a graduate of Yale Law School and a former law clerk for William Kunstler. He did civil rights work in the South and drafted civil rights legislation for the House Judiciary Committee. He has held administrative positions with California Rural Legal Assistance and was director of litigation for the San Mateo County Legal Aid Society. He specialized in major constitutional litigation and police misconduct litigation. In 1970 he was named the nation's outstanding legal services lawyer by the National Legal Aid and Defender Association. Kates has taught constitutional and criminal law at St. Louis University and as a criminologist is currently associated with the Pacific Research Institute. He is a long-time member of the Northern California ACLU. Finally, let me express my thanks to Alex Tanford for tackling the so-called "collective right" position. I think he has done a very good job of synthesizing the arguments that have been made in support of this position. In so doing, he permits us to respond to it directly and expose its fatal flaws in a straightforward manner. COLLECTIVE RIGHT: A BRIEF RESPONSE _Summary and abstract_ The "collective right" interpretation of the Second Amendment has three serious flaws. The first of these is the assertion, in effect, that the amendment has no meaning. This violates basic principles of constitutional analysis. The second is that in order to purge the amendment of meaning, it is necessary to embrace a mode of analysis that is anti-civil libertarian. Were this reductive approach adopted by the ACLU, it would undermine all of our other civil liberties efforts. The third flaw is the selective misreading or misrepresentation of history. The collective right interpretation ignores the history and purpose of the Fourteenth Amendment which was enacted, in part, to counter Southern efforts to disarm freed Blacks and their Unionist allies. For the ICLU/ACLU, a progressive reading of the Second Amendment would focus on the individual right of self- defense. _The matter of meaning_ The collective right memo was written after at least one board member complained that the Commission erred in not providing a statement laying out "the alternative" position. First, let me say that if the Commission erred in this regard, the fault is mine. However, had we presented an alternative, it would have been a states' rights analysis linking the Second Amendment with the 10th Amendment. The reason for this is very simple: the term "collective right" as it appears in ACLU policy #47 has no meaning unless it is interpreted as being a states' right. Certainly the policy seems to say as much when it describes the right "existing only in the collective population of each state for the purpose of maintaining an effective state militia." In reading the collective right memo, warning bells should go off immediately when we see it say that "it may be that there is simply no meaning at all to the second amendment." This avoids a states' rights analysis but, in so doing, violates a basic principle in constitutional exegesis that a provision must mean something. To say that the Second Amendment or, indeed, any part of the Constitution is devoid of meaning belongs in the Robert Bork "inkblot" school of analysis (Bork, it will be remembered, dismissed parts of the Bill of Rights with which he disagreed as "inkblots"). Initially, I was one of the strong proponents of a collective or states' right on the Second Amendment Commission. I quickly became frustrated and then increasingly suspicious when no explanation was ever offered as to what the Second might mean. In fact, with the possible exception of David Williams, none of those arguing for a collective right interpretation was willing to tackle this issue. Even Williams' analysis collapses because he, too, accepts the idea that constitutional provisions can have no meaning -- that they can be somehow vitiated through disuse. Thus, Alex is not to be faulted for failing to provide us the possible implications of the collective right position, for the simple reason that no one else has. Until now, that is. Don Kates and Prof. Glenn Reynolds (University of Tennessee Law School) are currently working on a paper in which they explore the ramifications of taking the collective right argument seriously. Though the paper is not ready yet, a memorandum which Don circulated in May that lays out some of the consequences of a collective rights interpretation is available. As noted above, I am including it for the Board to examine. In brief, Kates' memo and the _Lopez_ _amicus_ brief argue that the states' right view, by its logic and historical premises, allows the states to stockpile any and all tactical and strategic weapons, including nuclear weapons, for the use of state-organized military organizations, without authorization by or veto from the federal government. Similarly, the states could authorize their citizens to keep military weapons on hand in the event of a militia call-up. It can be seen from the Kates memo and the _amicus_ brief that a collective or states' right interpretation poses serious problems for gun prohibitionists. This could explain the total lack of scholarship in this area from collective right devotees, many of whom seem also to be gun prohibitionists. The Commission's efforts to develop a collective right analysis in the absence of thorough scholarship on its behalf were ultimately abandoned when the strength of the individual rights case became apparent. _Constricting constitutional rights is anti-civil libertarian_ For civil libertarians, more warning bells should go off when we see that the methodology of constitutional analysis being adduced amounts to the following: 1) Society was very different 200 years ago; 2) The complexity and risks inherent in modern society require that we interpret constitutional protections very narrowly in the interest of public safety. 3) Modern society is diverse and multi-ethnic and rights must therefore be curtailed in the interest of maintaining order. 4) Given that most people in the 18th Century lived with no real conception of individual rights, contemporary constitutional analysis should follow a more communitarian, less individualistic direction to flexibly address modern social problems. This kind of reasoning should be familiar to us. We've seen it used time and again by opponents of civil liberties to argue in favor of constricting constitutional protections. Most obviously, modes of mass communication from TV to digital networks are technologies that were unknown to and unanticipated by the founders and that have profound social consequences. The current drumbeat for government regulation of the content of TV programming is led by people who claim that government must be free to adopt a more communitarian, socially responsible approach. In practice, this amounts to pitching those parts of the 1st Amendment that are getting in the way of their program for a better, more "civilized" society. While the memorandum accurately reflects the kind of arguments advanced in support of the "collective right" view, it can be seen that they are poisonous for an organization putatively devoted to civil liberties. The Constitution and Bill of Rights is not a law of the universe -- it is a human-created set of rules for establishing the powers of government and for strictly limiting the exercise of government power against citizens. Through the courage, intelligence and hard work of our predecessors, we actually have such a set of rules that is at least nominally accepted by the citizens of a great nation. As civil libertarians, we protect the rights of citizens of the U.S. by forcing everyone, including ourselves, to play by the constitutional rules. If _we_ bend the rules for our ideological convenience or to serve our prejudices, who does that leave to preserve these rules for the future? _Misreading history_ Before proceeding, I would like to remind board members that the Second Amendment Commission report contains Prof. David Vandercoy's draft article on the history of the right to bear arms. Most of the historical objections raised by the collective rights memo are answered by it, so I will not attempt a point by point refutation in this response. Prof. Vandercoy's article has since been published and offprints are now available1. Don Kates' response to the collective right memo is also particularly informative on this subject. Like all collective right arguments, the memo misreads history. However, the memo chooses to depend primarily on a source that has concluded that there _is_ a strong historical argument for an individual right. The source is Joyce Lee Malcolm's 1994 book, _To Keep and Bear Arms: The Origins of an_ _Anglo-American Right_. Malcolm is a historian whose specialty is the turbulent 17th century period in England. In writing this book, Malcolm sought to pinpoint when the _obligation_ to keep and bear arms as a member of the militia became the individual _right_ to keep and bear arms for personal defense and defense of the state. _To Keep and Bear Arms_ microscopically examines the events of the 17th century. It was a time of wars and sectarian conflicts. Widespread civilian ownership of firearms was tied to the militia obligation. Various mechanisms were employed by various governments during the century to selectively disarm subjects who were deemed to be political enemies or otherwise considered to be a threat to the established order. Game acts, for example, though ostensibly intended to prevent excessive hunting and trapping, actually operated to allow the well-armed upper class to attempt to disarm the lower class. When Malcolm finally gets to the Glorious Revolution of 1688 and the English Bill of Rights of 1689, the reader has been treated to: o one monarch being deposed and executed; o a military dictatorship; o a restoration of the monarchy which greatly increased the power of the King; o the succession of a Catholic monarch whose actions so threatened the Protestant majority that he was deposed. The clear lesson to be learned from this period was the importance of who had arms and who controlled those who had the arms in the wielding of political power. This is the explanation for Parliament's recognizing an individual right for Protestants to have arms. As noted in the memorandum, the right to bear arms in the English Bill of Rights went through 3 drafts. Significantly, it was only the final draft (as noted by both Malcolm and Vandercoy) that omitted the "common defense" language. This proved to be crucial to subsequent judicial and legislative interpretation of the right. For example, game acts were no longer written or interpreted to deprive the lower classes of their private arms. In the period immediately following the passage of the English Bill of Rights, both the courts and Parliament (through legislation) took the right to bear arms seriously as an individual right not dependant upon the militia obligation. For example, Malcolm pointed out that even though the Bill of Rights' language reflected a concern about preventing a Catholic counterrevolution, Catholics could still retain arms for their personal defense. Shortly after the Bill of Rights was passed, "[a] bill was duly passed 'for the better securing the Government by disarming Papists and reputed Papists.' It decreed that no one of the Catholic faith 'shall or may have or keep in his House, or elsewhere, or in the Possession of any other Person to his Use, or at his Disposition, any arms, Weapons, Gunpowder, or Ammunition (other than such necessary Weapons as shall be allowed to him by Order of the Justices of the Peace, at their general Quarter sessions, for the Defense of his House or Person).' This measure is particularly interesting for the assumptions members made in the course of the debate. They assumed that everyone had a right to own firearms unless he could be conclusively convicted of Catholicism. Even in this time of danger, Catholics were considered to have a right to own arms for their personal defense and the defence of their households."2 The collective right memo also inadvertently highlights the fact that the English viewed keeping and bearing arms as an individual right because the militia obligation in England fell into disfavor in the 18th century thus removing it as a justification. Both Malcolm and Vandercoy point out that political theorists admired by the framers commented on the problems inherent in a Bill of Rights created by an act of Parliament which could just as easily be repealed by a subsequent act. Likewise, both Vandercoy and Malcolm note that when the United States protected the right to bear arms explicitly in the Second Amendment, it was much broader than its English counterpart. It would be a mistake to argue, as the collective right memo implicitly does, that a particular right does not exist because a historical epoch can be identified before said right was officially recognized. If this were to become the mode of historical analysis then all rights are in jeopardy. For example, Malcolm makes reference to 17th century laws prohibiting the free exercise of religion and punishing free speech. Given that the 1689 Bill of Rights still allowed for forms of religious discrimination, and the United States of 1791 was an essentially Christian nation, the Robertsons and Falwells of today could reasonably argue for a restrictive interpretation of the 1st Amendment that favored the Christian religion over all others. Malcolm devotes only one chapter to the American experience. She explains that, rather than attempting to retell American constitutional history which has been amply covered by others, her goal is to track how the English duty and right to bear arms was transmitted to colonial America and adapted to the American context. The collective right memo draws from this chapter Malcolm's discussion of the state bills of rights that were enacted during the revolutionary period. However, only a highly selective and acontextual reading of state constitutional language would yield the conclusions implied by the memo. Both Malcolm and Vandercoy discuss the philosophical and common law context in which the state constitutions were imbedded. I don't intend to repeat Malcolm's discussion -- those who are interested should read the book. I will, however, try to paraphrase the relevant section. The following paragraph is that paraphrase -- all points therein are Malcolm's. Malcolm touches on material that should already be familiar to the board from the Second Amendment Commission's report. She concludes that Blackstone's _Commentaries on the Laws of_ _England_, the encyclopedic treatment of the English common laws, had a profound impact on the thinking of Americans of the "founding era." Blackstone clearly articulated the principle that individuals had the "right of having and using arms for self-preservation and defense" and these sentiments are repeatedly expressed by commentators of the time. Looking at the state constitutions, Malcolm observed that New Jersey, New York, South Carolina, and Georgia had no bill of rights at all. Yet this didn't mean that citizens of these states had no individual rights. The absence of bills of rights merely reflected one political/philosophical view that enumerations of rights were both superfluous and dangerous (see, for example _Federalist_ #84 for this reasoning applied to the U. S. Constitution). Thus, as regards the right to keep and bear arms, this view held that citizens had a fundamental right to defend themselves and their property that government couldn't abridge. For those state constitutions which did not specifically list a right of citizens to bear arms for personal defense,3 other language was often present elsewhere which implied the right. Malcolm mentioned, for example, Delaware's constitution which stated among inalienable rights "defending life and liberty" and "protecting property." Massachusetts which spoke of keeping and bearing arms for "common defense" also spoke of the right of "enjoying and defending life and liberty." The acknowledgement of these rights clearly echoes Blackstone. _Whither self-defense_ Some discussion of the individual right of self-defense is unavoidable at this juncture in responding to the memo. Clearly, the ability of citizens to engage in collective action is dependent upon the exercise of a number of individual rights. For example, an individual's exercise of free speech is a prerequisite to mobilizing people for a political cause; an individual's free exercise of religion is a prerequisite for maintaining a viable community of believers. This also applies to the right to keep and bear arms as originally conceived, in which individuals, by possessing arms for their individual self- protection, also make possible collective defense. As noted in the Commission report and by Malcolm in her book, this was how the right to keep and bear arms was viewed in both England and America in the 18th century. For example, Malcolm notes that in 1769, the _Boston Evening Post_, a newspaper widely read throughout the colonies, defended the rights of citizens to arm themselves by citing the English Bill of Rights, natural law, and William Blackstone. "It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of society." The collective right memo also ignores the important history of the Fourteenth Amendment, which extends the protections of the Federal Bill of Rights to the states. As noted by the Commission Report and Van Alstyne, it was explicitly stated by the framers of the Fourteenth Amendment that the protections of the Second Amendment were to be extended to the citizens of the states. It would be completely irrational to assume that after a war of rebellion, the victorious Union intended to allow states to rearm in order to wage war again. Instead, the purpose of the Fourteenth was, in part, to prevent state governments and their political allies from selectively disarming freed Blacks and Union sympathizers thus rendering them helpless against state governmental and quasi-governmental intimidation4. As mentioned in the Commission Report, the subsequent legal history of the Fourteenth Amendment as regards the extension of the Second Amendment to the states was determined by the precedential case, _U.S. vs. Cruikshank_ (92 U.S. 542, 553 (1875)). In a remarkable piece of legal sophistry, the Court concluded that because the right to assemble and the right to keep and bear arms antedated the Constitution and Bill of Rights, they weren't rights that could be incorporated. In cases spearheaded by the ACLU in the 1920s, 1st Amendment rights came to be incorporated but, to date, no similar effort has been made on behalf of the Second Amendment. The _Cruikshank_ decision opened the door to state and local legislation that, though appearing to be racially neutral, was actually directed at systematically disarming African-Americans and other "undesirables." Some of this is documented in Cottrol and Diamond's excellent paper, "The Second Amendment: Toward an Afro-Americanist Reconsideration5." If we integrate the Anglo-American history of the 17th and 18th century with the 19th century of the U.S. Civil War and its aftermath, we see that the right to keep and bear arms followed a progression. First recognized with the English Bill of Rights, the right was viewed as the prerequisite for common defense. Over time, the importance of common defense through citizen militias became less and less important even as the individual right of self-defense became more so. However, the pernicious effect of racism operated to allow discriminatory legislation to be enacted which made it harder for Blacks to arm themselves for self-defense. The sorry spectacle of a government conducting illegal room-to-room searches for guns in Chicago housing projects is part of that progression. Van Alstyne and others have argued that protection of the right of self-defense is to be found in the Second Amendment (but recall the Nicholas Johnson article in the Commission Report that argued that if the Second Amendment didn't exist, the right would still be protected by the Ninth Amendment). I would argue that efforts at gun prohibition necessarily attack this basic right. The experience of the United Kingdom is illustrative. As the right to keep and bear arms was slowly eroded after the passage of the seemingly innocuous Pistol Act of 1920, so was the right of self-defense. Current law in the U.K. states that no person may use force in excess of that used in an attack. Although reasonable sounding, in practice it has resulted in a number of celebrated cases of elderly people being charged with assault when they have defended themselves with canes or handy blunt instruments though set upon by gangs of young toughs armed only with their fists6. This trend is in evidence in the United States, where many jurisdictions have determined that a number of non-lethal instruments of self-defense are illegal on the grounds that they can cause injuries to attackers7. Even passive modes of self-defense are proscribed. For example, kevlar body armor (i.e., bullet-proof vest) is reserved for law enforcement in a number of jurisdictions. The justification is that if the bad guys get body armor, it will make it harder for the police. This is a perfect specimen of the kind of statist reasoning that is always offered for restricting individual rights. It should be remembered that one definition of a police state is that state where laws are enacted for the convenience of the police. For civil libertarians, a "progressive" reading of the Second Amendment should focus on the right of self-defense. It would be truly bizarre for the ACLU to lobby legislatures and litigate cases to develop a "right to die" while at the same time denying that citizens have a fundamental right to defend themselves. _Conclusion_ The collective right memo accurately reflects the arguments offered by those who profess to believe that there is no individual right to keep and bear arms protected by the Second Amendment. None of the sources on which it relies, nor any other writings in support of the collective-right position, take their own position seriously enough to explore what the Second Amendment would actually mean under their formulation, nor how federal power would be limited and state power enhanced. This fuels suspicion that their analysis is result-oriented -- without even an objective view of the result. The Second Amendment Commission unanimously concluded that the Second Amendment protects an individual right for the reasons stated in the report. While it can be argued that tackling this issue poses dangers for the ACLU, refusal to address it or, worse, using anti-civil libertarian arguments to wish it away, is even more dangerous. FOOTNOTES 1. "The History of the Second Amendment," _Valparaiso_ _University Law Review_, Vol 28, Number 3, 1007, (Spring 1994). 2. _To Keep and Bear Arms_, p. 123. 3. The memo's reference to the constitutions of the original 13 states is unduly narrow in focus. The constitution of Vermont, the 14th state, adopted in 1786, stated "That the people have a right to bear arms for the defense of themselves and the state." Kentucky adopted similar language in its constitution in 1792. Connecticut, like the four states noted by Malcolm, had no state constitution at the time; its 1818 constitution similarly declared that "[e]very citizen has a right to bear arms in defense of himself and the State." 4. See Van Alstyne, p 1253 and accompanying footnote 55. 5. "The Second Amendment: Toward an Afro-Americanist Reconsideration", 80 Georgetown Law Journal 309 (1991). 6. For a full discussion, see "The Case Against Gun Control" by David Botsford, 1990 (ISBN 1 870614 747). Botsford is a member of the British Libertarian Alliance. 7. Technical note: many of the devices (e.g., pepper sprays, stun guns, tear gas) are in actuality not very effective against a real attacker and offer illusory protection. APPENDIX Excerpt from United States vs. Lopez Amicus Brief [NOTE: Footnotes have been renumbered.] D. The implications of the states' right-only view cannot withstand examination. Professor Van Alstyne actually understates the matter when he characterizes the individual rights vs. states' right-only debate as one between those who do take the Bill of Rights seriously and those who don't. In fact, advocates of the states' right-only view do not even take their own position seriously enough to explore its potential results -- which turn out to be at least as socially adverse as those often attributed to the individual right view. In that view the basis of the Second Amendment was the right to arms for personal defense, no distinction being made between apolitical and political crime.1 Accordingly, as discussed _supra_, both the Amendment's text and the logic of the individual rights view limit the kind of weaponry the Amendment guarantees individuals to small arms only. But the states' right-only view holds that the Amendment was intended to guarantee that states may equip their forces with arms sufficient to counterbalance the military force of the federal government. Thus any _honest_, conscientious treatment of the states' right-only view requires asking: Doesn't this position involve the conclusion that every state may, if it wishes, stockpile not just small arms but artillery, bombers, aircraft carriers, ICBMs and nuclear weapons for the use of its forces?2 If the proponents of the states' right-only view have some _honest_, _principled_ basis for a negative answer to the foregoing question, they have failed to offer it in their articles. Those articles "answer" such questions by ignoring them. States' right-only articles explore none of that view's implications beyond the naked claim that the Amendment does not preclude government from banning and confiscating all privately owned firearms. A related question arises from the crucial difference between the two views in defining what "militia" means as that term is used in the Amendment. The individual rights view rests on the preferred 18th Century meaning of "militia" -- not some formal military unit, but a _system_ under which each household was required to be armed and virtually every military-age male was required to own arms and appear for training and/or service when called to do so.3 But in the states' right-only view the word "militia" refers to a formal military unit, a body of troops serving the state. Indeed, it is regularly asserted by partisans of that view that the "militia" is the National Guard, notwithstanding this Court's holding in _Perpich v. Department of Defense_, 496 U.S. 334 (1990). But if these claims of the states' right-only analysts are correct, how can one escape the conclusions: a) that the Amendment repeals Art. I 10, cl. 3, of the original Constitution which forbids states to "keep troops" without the consent of Congress; and b) that _Perpich_ was wrongly decided, a cognate effect of the Amendment having been to modify Art. I, 8, cls. 15 and 16 by exalting state power over the militia vis-a-vis federal?4 To reiterate, partisans of the states' right-only view have not even attempted to grapple with these questions. Though their articles purport to champion a states' right view, in fact it is just a makeweight -- a disingenuous gibberish-concept which is presented without analysis of its content or implications solely to evade the inconvenient truth that the Amendment precludes the prohibition and confiscation of all firearms. FOOTNOTES 1. *9 CONSTITUTIONAL COMMENTARY _supra_ at 89-103 citing examples and quoting and analyzing Locke, Sidney, Montesquieu, Blackstone, Madison, Jefferson, Paine and numerous others. See discussion and quotations in footnote 20 _supra_. 2. Space permits mentioning just one of the textual and logical limitations implicit in the individual view which are inapplicable to the states' right-only view. The Amendment guarantees the right to "keep _and bear_ arms": Since an 18th Century man could not bear (i.e. pick up) cannon, the intent seems limited to small arms. . . . But that limitation does not apply if the Amendment be deemed to create a states' right to possess military forces against the United States. If one can stomach the incongruity of describing a state as "bearing" arms, that state is obviously no more incapable of "bearing" cannon than any other kind of arms. . . . 3. *"Original Meaning", 82 MICH. L. REV. _supra_ at 214-8 ("In short, one purpose of the Founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of the individuals who made up the militia." _Id_. at 215), Shalhope, 49 LAW & CONTEMP. PROB. _supra_ at 133 ("Individuals had the right to possess arms to defend themselves and their property; and states retained the right to maintain militias composed of these individually armed citizens."). [other citations omitted] 4. In fact, the concept of militia held by partisans of the states' right-only view is simply not the "militia" concept to which the Amendment refers: "Nowadays, it is quite common to speak loosely of the National Guard as 'the state militia,' but 200 years ago, any band of paid, semi- professional part-time volunteers, like today's Guard, would have been called 'a _select_ corps' or '_select_ militia' -- and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, 'the militia' referred to all Citizens capable of bearing arms... [So] 'the militia' is identical to 'the people'...." Amar, _supra_, 100 YALE L. J. at 1166, emphasis in original. _See also_: J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 162-3 (Harvard U. Press, 1994): "The argument that today's National Guardsmen, members of a select militia, would constitute the _only_ persons entitled to keep and bear arms has no historical foundation. [Emphasis in original.]" Kates' Memorandum on States' Rights May 18, 1994 TO: Akhil Amar, Randy Barnette, Bob Cottrol, Bob Dowlut, Sandy Froman, Dan Gifford, Alan Gottlieb, Paul Hager, David Hardy, Nick Johnson, Sandy Levinson, Joe Olson, Dan Polsby, Ed Suter, William Van Alstyne, Jim Warner RE: Taking the states' right theory of the Second Amendment seriously ------------------------------------------ Anti-gun advocates have understandably never explored the implications of their "theory." After all, for them it isn't a theory at all but rather a makeweight to justify anti-gun laws despite the individual right guaranteed by the Amendment. But _we_ are at fault for not taking that position seriously -- because its implications expose it to a parade of horrors argument far more powerful than any that can be made against the individual right view. . . . STATE POWER TO RAISE ARMIES One implication of the states' right view of the Amendment is that it constitutes a _pro tanto_ repeal of Art. I 10, cl. 3 of the original Constitution which forbids states to raise armies without the consent of Congress. Thus the _theoretical_ implication of the states' right view is that any state which wishes to is free to raise its own army and have that army equipped with whatever weaponry it wishes, up to and including nuclear weapons. In contrast, individual right analysts have taken pains to argue that there are severe restrictions on the kinds of arms which the Amendment guarantees individuals. But none of those arguments apply if the Amendment be deemed instead a guarantee of the states' right to arms.1 In fact, the "militia purpose" holding of _United States v. Miller_, which we have argued must be limited in light of the points set out in footnote 1 _supra_, would apply in its fullest import. Obviously, state military possession of machine-guns, tanks cannon, bazookas, and even nuclear weapons can reasonably be deemed to help preserve a militia if that is understood to be a state army rather than the colonial system under which every trustworthy man of military age was required to possess small arms with which to appear when called to drill or military service. ABROGATION OF CURRENT FEDERAL GUN LAWS I have stressed the purely theoretical nature of the foregoing argument because, of course, no state currently has in place even a legal structure allowing it to raise armies, much less an actual army pursuant thereto. More important for present purposes is that the legal structure many or most states do have in place regarding their organized and unorganized militias would seem to raise problems for many current federal gun laws. 1. Current State Militia Provisions-- Many states today have laws like Cal. Mil. & Vet. C. 121 by which the entire military-age male populace is classified as the state's "unorganized militia." In addition California law provides for and recognizes a National Guard, and creates the unpaid, all-volunteer State Military Reserve. The latter is a token force which is all that remains of the general organized militia of colonial days.2 For the sake of convenience I shall use the California term Military Reserve for such organized militia forces today though the actual name varies from state to state. Where necessary for any proper purpose (e.g. maintaining order after an earthquake or other natural disaster or defending the state from invasion), Mil. & Vet. C. 120-3 vest in the Governor the authority to call out the National Guard, the State Military Reserve and the "unorganized militia." Except during the two World Wars as hereinafter set out, conditions have not (to my knowledge) required mobilizing these forces on a statewide basis. But the large sheriffs' posses which exist in many rural areas may well be deemed on-going local manifestations of the militia concept. In any event, it is not at all fanciful to think that it might be necessary to call out either, or both, the (minuscule) State Military Reserve and the "unorganized militia" in some future disaster.3 In both World Wars and the Persian Gulf War all or most of the National Guard was mobilized and sent overseas with the Army. That is even more likely today when current military doctrine dictates the National Guard's growing involvement in the "Total Force" concept of national defense. This doctrine assigns many National Guard units to virtual front-line combat status in the opening stages of future wars.4 This leaves the police as not just the first but the only line of defense, with no formal force (except for the, by definition, unorganized militia) available to support and augment them. In both World Wars, this void was filled by raising volunteer militia units to guard strategic installations and to support the police in case of civil disorder.5 During World War II this function was performed in California by the State Military Reserve organized pursuant to 120 of the Mil. & Vet. C. and, at least in theory, that remains true today. It may be doubted, given current attitudes, that armed civilians would be organized for service in many states today even if both the Army and the federalized National Guard were to be called overseas for a prolonged period. But the police are simply not equipped to deal with a major natural disaster or riots, not to mention things like the 1910s Pancho Villa raids or a domestic insurrection. The police are organized to handle day-to-day problems with the understanding that extraordinary problems will be met with massive mobilization of back-up resources. In states which have made no provision for a Military Reserve the only available resource would be calling for armed civilian volunteers, or calling out the entire unorganized militia, to be placed under some kind of _ad hoc_ command structure. (See discussion in footnote 2 _supra_.) Moreover, even if the Army and National Guard are available in theory, the State Military Reserve-cum-unorganized militia might be needed to aid police after a major earthquake if transportation disruption precludes access to affected areas by the Army and/or the National Guard. Indeed, recent riot and hurricane situations in California, New York and Florida palpably demonstrated the need for civilians to be armed when the police are unable or unwilling to provide protection. It is also at least remotely possible that a military emergency may create a situation in which militia forces are needed to support the military in the U.S. Consider the example of Hawaii immediately after the Japanese attack. To meet the invasion that it was assumed would follow, the Army was unable even to thinly man all the beaches --much less to maintain the mobile reserve needed to reinforce the units assigned to the beaches if attacked. To fill the gap, the government called upon personally armed volunteers bearing their own arms (the unorganized militia). They were deployed to undefended or inadequately defended beaches as "expendables"; if attacked they were expected to hold regardless of losses until reinforced or relieved.6 2. Arms of the militia-- The National Guard is armed by the federal government. But the Military Reserve and unorganized militia are self-armed. Nor can the states look to the U.S. to arm even the State Military Reserve, much less the unorganized militia. Admittedly during World War I, and at times during the 19th Century, the U.S. did give state militias some weapons. But by World War II the federal government was so short of arms that it had to actually recall the outmoded arms it had earlier donated to state armories. The result was that service in the state militias was confined to those who could supply their own arms; some militia units enrolled gun clubs en masse.7 Likewise, California and most other states lack the funds to arm even the enrolled members of their active militias -- much less to stockpile enough up-to-date (or outmoded) arms to equip any significant portion of the unorganized militia. There is no question of a program of constantly updating arms in light of changes in technology and tactical concepts. From the nation's birth the expectation has generally been that when called for service these men will "appear bearing arms _supplied by_ _themselves_ and of the kind in common use at the time." _United_ _States v. Miller_ (1939) 307 U.S. 174, 179 (emphasis added). Even if state or federal stockpiles existed, the problems raised by trying to distribute those arms to an unarmed, untrained militia in the wake of earthquake, atomic attack or other highly disruptive catastrophe are obvious: Given that the very circumstances which require the calling up of militiamen today may also preclude their drawing arms from centralized armories, their home possession of arms facilitates militia service today no less than in the 18th Century. Moreover, the home possession of firearms by potential militia members would presumably facilitate familiarity with at least those weapons. To be able to call upon a cadre of people already familiar with weapons (particularly those weapons they would actually be using) would seem particularly important for the [unorganized] militia today, in the absence of a compulsory training requirement like those that existed in the 18th Century. Significantly, home and/or individual possession of firearms is the rule today in nations like Israel and Switzerland, which continue to rely substantially upon the militia concept. In Switzerland, every man of military age is required to keep a fully automatic assault rifle (or, if an officer, a pistol) in his home and the shooting sports are strongly encouraged for the entire population. In Israel, voluntary ownership of firearms is encouraged for the entire population, while the government has donated firearms to kibbutzim and other farming villages in areas likely to be subject to terrorist or military attack. Reservists are encouraged to carry their submachine guns or assault rifles with them at all times, particularly when traveling on the public streets.8 In sum, insofar as federal law precludes the members of the states' organized (or unorganized) militias from owning military- type arms, the federal law interferes with the State Military Reserve and the unorganized militia provided for by state law. Taking the states' right view seriously would seem to absolutely prohibit federal gun laws which involve such interference. So I now turn to discussion of the extent to which current and proposed federal gun laws could reasonably be deemed to preclude members of the states' organized (or unorganized) militias from owning military-type arms. 3. Attacking Feinstein?-- As I understand it, the proposed Feinstein "assault weapon" ban would ban future sales of: a) a long list of semi-automatic firearms having a close cosmetic resemblance to modern military firearms; b) any other having features which cosmetically resemble modern military firearms; c) any civilian (i.e. semi- automatic) version of a full auto modern military firearm, with certain named exceptions; d) magazines holding more than ten rounds. Portions of Feinstein seem equally vulnerable to attack under either an individual right or a states' right approach. But overall Feinstein is much more subject to attack under a states' right theory. If this difference has not been realized it is because gun owners have reflexively assumed that the individual right view of the Amendment implies a right of untrammelled freedom of choice. That is by no means clear, however. One could view the individual right in a restrictive manner, just as one could view freedom of the press. If, as seems arguable, Congress could ban importation of presses made in foreign nations, Congress might be able to ban importation of foreign-made firearms. Such bans might be deemed consistent with the First and Second Amendments, respectively, absent proof that the actual result was to seriously impede access to a product that was vital or important to exercise of the right and for which there was no comparable American-made substitute. As against the individual right view the same standard might be applied to uphold Feinstein's sweeping ban on named firearms and types of firearms. While I think the magazine ban very dubious if a court is going to take the right seriously, the overall gun ban is much more defensible against the individual right view. After all, the Ruger Mini-14/30, M-1 Carbine and M-1 Garand, which (as I understand it) are expressly exempted, are pretty much comparable to all the firearms which are banned. Such an argument is more difficult to make against a states' right view of the Amendment. The whole point of Feinstein is to preclude what the states' right involves, i.e., civilian possession of arms which were specifically designed for military use. The most likely line of defense for Feinstein against a states' right view attack would be by reference to the federal government's power to designate the arms of the militia under Art. I, 8, cl. 16. Such a defense is completely disingenuous, however, and would require a gargantuan "suspension of disbelief." If there is anything that is clear about Feinstein it is that it is the diametrical opposite of an attempt to designate which arms are best for military service and require civilians to have them. Moreover, to take the states' right argument seriously implies accepting that the Amendment at least limits the Congressional power to designate militia weapons to the extent that the states must have absolute power to decide what weaponry their own state militias will have. _Standing_. It is not at all clear that an ordinary person _qua_ ordinary person would have standing to bring an action based on the states' right theory. But that theory would support any of the following suits: a) By a governor, or even a sheriff, alleging that s/he wants to designate any, or several, of the Feinstein-banned arms as the official arms for members of the State Military Reserve, the unorganized militia or the Sheriff's Posse; b) By a citizen who alleges that s/he is a member of the State Military Reserve, the unorganized militia or the Sheriff's Posse for which those weapons have been designated and wishes to buy one, but cannot because of Feinstein9; c) By a state alleging that those arms would be appropriate for militia service and that the effect of banning them is to severely restrict the state's ability to raise an individually armed militia. 5. Preposterously Far-reaching Implications Vulnerable as Feinstein is to attack under the states' right view, it is still far less vulnerable than the federal prohibitions against fully automatic weapons and destructive devices. Though it is weaker against the states' right view, Feinstein can be defended with the argument I suggested _supra_ for defending it against the individual right view: that, while it bans many military arms for the very reason that they are military, still it allows some others which fulfill the same purposes. No such argument can be made to defend the federal prohibition of fully automatic weapons against challenge by a sheriff who wants his posse to equip themselves with MP-5s or Uzis or a governor who wants his State Military reservists -- or even the general populace who are members of the unorganized militia -- to buy M-16s, not to mention M-60s, grenades, grenade- launchers, etc. Clearly no mere semi-automatic weapon is an adequate substitute for such arms. To take the states' right view seriously requires accepting that the federal government can neither ban such weapons outright against the desire of state officials to so equip their formal or informal militias nor impose a special and onerous tax as the 1934 Act did. The only conceivable manner in which the federal laws could be upheld would be to imply a state-authorization exception into them; i.e., that fully automatic weapons, grenades, etc. are banned (or prohibitively taxed) only as to individuals who lack an affirmative authorization to possess them for state service. FOOTNOTES 1. One argument has proceeded by reference to the textual language "keep _and_ bear arms"; since an individual could not bear, i.e. pick up, a cannon, the intent would seem limited to small arms and, by parity of reasoning, would not include even now-portable arms, like modern bazookas, comparable in destructiveness to a cannon. Another, but complementary, argument has stressed the common law doctrine that one could not bear arms to the terror of the people: since the idea of someone keeping a bazooka to shoot burglars would reasonably terrify his neighbors ... Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment", 82 MICH. L. REV. 203, 259_ff_. (1983); Kates, "The Second Amendment: A Dialogue", 49 LAW & CONTEMP. PROBS. 143, 146-8 (1986); Halbrook, "What the Framers Intended: A Linguistic Interpretation of the Second Amendment", 49 LAW & CONTEMP. PROBS. 153,157-60 (1986). Neither of these arguments are applicable if the Amendment be deemed to create a states' right. The state is obviously not any more incapable of "bearing" cannon than any other kind of armament; and the common law doctrine expressly did not apply against agents of the state. (Note, incidentally that "bear" raises yet another textual problem for the states' right view. Only individuals "bear" arms. To see the Amendment as a mere states' right to _keep_ arms is to render "bear" superfluous.) 2. I say that it is a remnant because the legal structure of the State Military Reserve seems to indicate that it is intended to be the command structure under which the unorganized militia would be placed if the governor were to call it out. This is, however, somewhat theoretical since the occasion for calling out the _entire_ unorganized militia seems remote. The most likely occasion for that would be a scenario in which: a) civil war erupted in Mexico making it necessary to police the border against Pancho Villa-type raids and/or to police flight to the U.S. of large numbers of Mexican refugees, while b) the Army and National Guard were fully engaged in operations overseas _a_ _la_ the recent Persian Gulf crisis. A more likely scenario for calling out the unorganized militia would involve calling for armed citizen volunteers to aid police in providing emergency service in areas where police resources were overwhelmed by a natural disaster or riots. In such circumstances the armed volunteers might well be put under the command of the police rather than of State Military Reserve officials who might not even be able to reach the scene due to transportation disruption. 3. Note that even in states whose laws do not provide expressly for a Military Reserve, the common law may be deemed to continue at least the unorganized militia concept that every man is required to appear in arms upon call by the proper authorities. 4. Cole, "State Defense Force" (1987) 39 MIL. COLL. & HIS. 152, 154. 5. Cole, "State Defense Force" (1987) 39 MIL. COLL. & HIS. 152 (reviewing wartime experiences of Maryland militia in both disorder suppression and general guard duties), Treacy, "Maryland Minute Men" (1988) 6 THE GLADES STAR 214 (same); and Cole, "United States Guards" (1988) 40 MIL. COLL. & HIS. 2 (militia performing both disorder suppression and general guard duties nationally under joint-federal state control during World War I). 6. Kates, 82 MICH. L. REV. _supra_; Gottlieb, "Gun Ownership: A Constitutional Right" (1982) 10 N. KY. L. REV. 138. Ironically, many of these volunteers were Japanese-Americans whose colleagues in California were to be held in concentration camps without benefit of trial or habeas corpus until belatedly relieved by order of the U.S. Supreme Court. 7. Compare Cole, "United States Guards", supra (World War I) to M. Schlegel, VIRGINIA ON GUARD (1949) 131 and other sources cited supra. 8. 82 MICH. L. REV. supra at p. 249, n. 193 (emphasis added; citations deleted). See also the declaration of Major Drenkowski accompanying this brief[sic]. [Declaration not included here] 9. Another interesting possible plaintiff would be a SWAT team member from a department where the SWAT team buy their own arms. -- paul hager [h--ge--p] at [cs.indiana.edu] "I would give the Devil benefit of the law for my own safety's sake." --from _A_Man_for_All_Seasons_ by Robert Bolt