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Del. Ken Plum: The Right to Bear Arms

by Del. Ken Plum — July 1, 2016 at 1:15 pm 27 Comments

Del. Ken Plum/File photoThis is a commentary by Del. Ken Plum (D), who represents Reston in Virginia’s House of Delegates. It does not reflect the opinion of Reston Now.

The Second Amendment to the United States Constitution is one sentence long:

“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.”

Commonly referred to as the “right to bear arms” amendment, it could as easily be called “the state militia” amendment. Clearly the Founding Fathers had something in mind about the state militia, or the National Guard as we now call it, when the amendment was proposed and passed. Otherwise they could have simply provided that “the right of the people to bear arms shall not be infringed” as some argue today.

For most of our history, the connection between the right to bear arms and the militia was acknowledged and respected. In recent years there has been a rigorous and well-funded political campaign to put the emphasis on individual gun ownership.

For anyone interested in the transition in our history, I recommend that you read The Second Amendment: A Biography by Michael Waldman (New York: Simon & Shuster, 2014). Waldman traces the amendment from its inclusion in the Constitution where there is no evidence to support any conclusion but that it was intended to authorize state militia until 2008, when a single case before the Supreme Court turned that history upside down.

In an opinion written by Justice Antonin Scalia, the Supreme Court declared that the Constitution confers a right for an individual to own a gun irrespective of the reference to a militia. Ironically, it was Justice Scalia who was known for his “originalism” in interpreting the Constitution in the terms of what was meant when it was written who upset 218 years of history to create an interpretation that has led to the defeat of many gun safety measures. As recently as 1991, the then-Chief Justice of the Supreme Court Warren Burger had called the idea of individual gun rights in the Constitution a preposterous “fraud.”

Paralleling the change in judicial interpretation was the rise of the National Rifle Association (NRA) as a lobbying and advocacy organization representing gun and ammunition manufacturers well beyond recreational hunters.

The NRA fueled the judicial actions as well as the political actions to defeat anyone who sought to slow down the sale of arms and ammunition. Its political clout was evident in the refusal of the Congress to pass modest gun safety measures after the horrific shooting in Orlando of 100 persons with half of them dying. At the same time there has been a shocking trend of gun violence with mass shootings and shootings involving children happening with frightening regularity.

I continue to believe that government has a public safety responsibility to keep guns out of the hands of violent individuals. That’s why I have introduced bills to expand background checks for gun purchasers. I also support banning the sale of assault rifles to individuals. I participate actively in the Reston-Herndon Alliance to End Gun Violence (www.facebook.com/Alliance-to-End-Gun-Violence-Reston-Herndon) and the vigils at NRA headquarters on the 14th of every month. When the public insists that their elected officials support gun safety measures, we can return to the original intent of the Second Amendment.

  • Virginia Harlow

    “(a)

    The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32,
    under 45 years of age who are, or who have made a declaration of
    intention to become, citizens of the United States and of female
    citizens of the United States who are members of the National Guard.

    (b) The classes of the militia are—

    (1)

    the organized militia, which consists of the National Guard and the Naval Militia; and

    (2)

    the unorganized militia,
    which consists of the members of the militia who are not members of the
    National Guard or the Naval Militia.”

    This pretty much includes everyone. The unorganized militia is expected to rise up in times of great danger to protect the country.

    In order for that protection to be remotely effective, weaponry should be modern enough, and effective enough to repel an enemy. You cannot do that with old revolvers. There are already Supreme Court decisions that back the rights of individuals to bear arms. The NRA is not the enemy of the people. Gun violence in this country has gone down, not up. Nothing that you suggest would have saved those people in Orlando, or anywhere else.

    Gun free zones are preferred by mass shooters, because they know they can kill many more before someone interferes.

    Chicago is a great example of how well gun control measures work to keep people safe. It’s a disgraceful killing zone, and innocents are being slaughtered. It’s not mentally ill people doing all that shooting. It’s people who won’t obey any of your gun regulation anyway. The police chief in Detroit even recommended folks arm themselves, because there’s no way police can protect you. How long did it take for police to get to Pulse? Hours? Yet another club shooter was just recently taken out by a person with a concealed carry license, saving hundreds of lives.

    Recently, Dr. Carson wondered why when groups of people are being attacked, why don’t they do something to prevent the shooter from harming them? Why not attack in bunches! If you are likely to get shot anyway, what’s wrong with trying to defend yourself???? I applaud his thinking on this. Attacked from every side, what could a shooter do? Chairs, bottles, glasses, all are missiles that can be used. Have we become such cowards we no long defend ourselves? How could that guy have had a chance to call 911 and talk 3 times???

    Your good intentions ultimately can cause greater harm than you know. Leave the Second Amendment alone. It stands as one of the most important reasons the Japanese didn’t invade after Pearl Harbor, and all those guns in the hands of ordinary citizens is a clear danger to anyone wanting to harm us.

    • 30yearsinreston

      What a load of crap
      The japanese didn’t invade because they didn’t have the resources
      They couldn’t even invade Hawaii

      • Mike M

        So a nation armed to the teeth at the public and private level is not a deterrent? I think it is absolutely a deterrent.

        By the way, the Japanese invaded Wake. They were prepared to invade Midway. They invaded CHINA for crying out loud. Not the resources?

        • Chuck Morningwood

          I think that, by the time the Nips got around to Hawaii, they epwere stretched pretty thin in all of their areas of operation; had extremely long and unprotected lines of supply and communication; had not succeeded in sinking the main targets of their attain, the Pacific fleet aircraft carriers; and that their intent was to disable the Pacific fleet, not conquer/invade the US.

    • Chuck Morningwood

      It us indeed interesting that you cite from Federal law (USC). This implies that you accept that it is legal (Constitutional) for the legislature to pass gun legislation.

      If you read the full section, you might find that only “able-bodied” males between the ages of 17 and 45 inclusive are considered part of the milita. The implication being, of course, that if you’re female, well, you aren’t part of the militia; and also if you’re over the age of 45 also. Interestingly, you can be insane and part of the militia, as long as you’re able-bodied, and also a convicted criminal.

      So, Virginia, when are you turning in your weapons?

      • Virginia Harlow

        Well, Chuck, I’m glad you enjoyed your celebration of Independence Day yesterday and took a few sips. That usually helps when you are looking for “implications” in what others say, or the law says. Turning that around, are you implying that females have no God given right to self defense? Maybe you have merely forgotten that the Constitution, the foundation law of the land, was primarily written to restrain government. Nothing therein leaves females without God given rights to self defense. Also assuming I have weapons, which of my kitchen knives should be regulated ?? Only the serrated ones?

        Actually, for the best protection of all, criminals and/or tyrants should not know if their intended victims are going to shoot back. Nor should they know if their neighbors will arm themselves and rush to the defense if innocents.

        You may not have noticed that when the people of other countries in history were disarmed, only their governments had guns with which to slaughter them. Germany, Russia, China, even Cuba and Cambodia come quickly to mind. Because I defend an individual right understood to be just that, for most of our existence as a country, and even before that as colonies, try not to assume I’m hiding an arsenal. You will just have to wonder about that. I will admit to having lots of kitchen knives, and using them frequently to chop food. But, further, the even were there no civil law, I would have the individual right to protect myself and my family by any means necessary.

        As I said, good intentions will not keep our children and families safe. Witness gun free zones. They set up the vulnerable and encourage attacks by evil people. 9/11 convinced me that there never was and never will be a time when we are “safe.” We need to be strong. Not as separate groups, but as individuals.

        • Chuck Morningwood

          You’re the one who quoted a LAW — not the Constitution — which does not include you (I am assuming, of course, a female) as a part of “the militia”, which is referenced in the Constitution.

          Now, there might exist other laws that go on to further modify this, but you have not chosen to cite any of them. In fact, the sections you quote are disingenuous because you omitted other sections in the same law which significantly modify/clarify “militia”.

          As for your right to defend yourself, you absolutely can do that. Defense, however, doesn’t necessarily need to occur with a gun. There are lots of weapons available, which are not necessarily guns.

          As for governments slaughtering their unarmed populaces, (1) you provide no evidence that they are more or less armed than we are and (2) are you saying that the US government is going to slaughter us?

          • Mike M

            The government is less likely to abuse us in any way if we are armed, Chuck. Presuming the government will always have the best interest of the people in mind has already been proven to be false hope.

          • Virginia Harlow

            Since you are just looking for argument, complain of my failure to provide cites yet offer none yourself, to continue would be a waste of my time. You have brought nothing to the discussion that is worth considering. Del. Plum may at least have good intentions, although his arguments are full of democrat talking points, and feelings. You seem only to want to battle without a stake or cause at all. I’ll leave you to Mike, who must have engaged you often.

  • Paula

    Thank you, Delegate Plum, for a well reasoned statement to start a respectful dialog on this very important issue.

  • Mike M

    Let’s be big boys and girls and accept the uncomfortable reality of what the Second Amendment is really all about. It’s about the right of an individual to defend themselves from a government (that’s you, Ken) that overreaches. It’s like all the Amendments, about unalienable individual rights. The National Guard can be controlled by the government. It is NOT the militia as noted in the Constitution. See Virginia Harlow’s post below.

    Mass shootings are NOT epidemic. But shootings in places like South Chicago could be described that way. They just don’t get the press. Don’t be swayed by the exciting stories and sensationalism.

    When people like Ken exploit those events, and begin their “common sense” arguments which are really aimed at abolishing the Right, gun sales sky rocket. I do not yet own two AR-15s. But I am being nudged that way by the cowardly arguments in favor of cornering the people, so that the Government has a monopoly on force.

    • Guest

      Mass shootings may not be “epidemic” in the literal or broad sense of that word, but they do seem to occur with an unnerving frequency, don’t they? In the Heller case, the Supreme Court expanded 2nd amendment gun rights to include personal ownership of guns, not just the collective right contemplated by the militia clause. As a nation and as a society, we have advanced beyond the older, historical meaning of the militia clause as mentioned below in Harlow’s post, to include all functions of the military services and law enforcement generally. But nowhere in the Court’s opinion did it endorse the ownership of weapons as a defense against the government itself rather, it took another approach and declared that the reasonable regulation of firearms ownership is permissible by the local state or federal governments. As a recent example of this, just the other day a federal court ruled that the prohibition of full automatic weapons (machine guns) is a permissible exercise of government regulation under the 2nd amendment. It is likely that this decision will be upheld on appeal to the higher courts. As far as defending oneself against an intrusive government, such a position is largely a polemic and a talking point used by some (by no means all) gun afficianados who may have various (alledged) grievances that they wish to assert. Our society as a whole does not endorse an absolutist possession regarding 2nd amendment rights advocated by some activists and conservatives. that was explicitly rejected by the court, and in my view will remain a disfavored perspective.

      • Virginia Harlow

        Fully automatic weapons are already regulated. Why bother to bring that up as an argument for more fun control? You can clearly see how little effect that has on gun violence statistics. Please, when speaking for all as you state “our society” understand you are not really speaking for the millions if not more fun owners across the nation who have never hurt anyone with their weapons. I also suggest you take a better look at what the unorganized militia is. It is not a group. We’ve been cut up into so many special groups this past few decades and government has favored groups over individuals for so long, folks actually believe they must “belong.” That’s nonsense. To understand the reason for the Second Amendment, you might need to read some Federalist Papers and AntiFederalist but the founders did definitely mean for that amendment to protect against tyrannical government. a better reading the the Declaration of Independence is in order. Such as the couple sentences immediately following the most famous “life, liberty, and the pursuit of happiness” phrase….. I suggest you find that and understand the founders intended the individual to have unalienable rights to protect themselves from government.

        The reason mass shootings have proliferated can be found in “gun free zones” regulations. Where folks with no desire to protect themselves gather in great numbers wrapped in bubbles of imagined safety, evil people will find easy prey.

      • Mike M

        No, mass shootings unnerve you because you are impressionable and the mass media really gives them the treatment. They never even take an objective look at them. The latest one, like the one in San Bernadino, and the one at Fort Hood, and others elsewhere was done in the name of Allah by you-know-who. But that’s hardly been examined in the frenzy to turn it all into a gun control argument. Meanwhile you ignored my other points as well:
        1) You don’t hear about the real murder sprees occurring in places like South Chicago? Why is that? Does that not “unnerve” you? Why is that?
        2) You are FAR more likely to die in a car crash than in a mass shooting. You are more likely to win the lottery.
        3) In the building of the Constitution, the right to bear arms was associated with the right to stand up to the government forcefully. We have not outgrown that basic issue, except for in the minds of those who are afraid to go there, or in the minds of those who think the government is the solution to everything.
        4) The Bill of Rights is about INDIVIDUAL rights. The Second Amendment is not a wacky exception to that basic construct.

        • Another Guest

          One need not be “impressionable” to decry the violence in our society. And most of us are indeed aware of the murder spree that has occurred in the Chicago area, reminiscent of the “cocaine wars” and gang wars that struck many cities twenty years ago. I’ve seen it covered in the media. That info is just a google search away for anyone who cares to look it up. Car crashes and death by firearms are apples and oranges, makes for a weak debating point, and cannot support an absolutist 2nd amendment perspective. In fact, few “individual” rights are absolute, are they? That is because we are a nation of laws and not of men. And one need not be a student of colonial-era history to appreciate contemporary firearms regulation. All of our constitution was subject to intense debate by its Framers, and cherry-picking the federalist papers or other essays of that day is certainly not dispositive, I believe you know that. And no one is “afraid to go there” whatever you mean by that. You would do better than simply quoting talking points by the NRA or other radical pro-gun groups. Finally, all the recreational shooters and hunters, etc.,can all keep your “fun guns” as far as I am concerned but lets’s find an alternative to keeping the peace and avoiding needless deaths rather than having everyone strapped, okay? That is a dumb idea.

          • Mike M

            The Right to Bear Arms has not been treated as absolute, so I don’t get your point. We are nothing without a Constitution. We are a nation of laws, but not without that. The right to bear arms is a protection of the Constitution. It’s not at all about hunting. What I think you don’t get is that bad things happen and no laws will ever prevent people from doing bad things. The automobile crash analogy is quite valid.

          • Virginia Harlow

            We have indeed become a nation of so many laws each of us could be guilty of crime without even knowing it. Thus, people should recognize that we now have selective enforcement of laws, based on whatever view current leaders espouse. Legislatures, state and national, spend entirely too much time making yet more laws the populous can’t even know about. In history, when gun confiscation has occurred, governments themselves have killed millions of their own people. Russia, Germany, Cambodia, China and others have demonstrated this. For some reason, those in government who of course just want to keep their jobs, are all for gun control measures they feel will keep them safe. Good intentions will not protect us from the kinds of things history shows could happen. No,one wants to see their own government as frightening, but in my lifetime alone, it’s grown huge and intrusive like never before with tentacles into every part of our lives.

            I wish it were not so, but wishes, like good intentions, do a notoriously bad job of,protecting the innocent. Entirely too many of the reasonable measures suggested would make no difference whatsoever except to make us more vulnerable. Evil people won’t obey laws, so more law will achieve nothing.

          • Mike M

            Our maniacal tax code alone makes us all potential criminals.

      • John Higgins

        My guess is that everyone commenting here would agree that reasonable regulation of gun ownership is both constitutional and desirable. The problem, of course, is where to draw the line between reasonable and unreasonable. And that is made even more difficult by how one presents one’s case.

        It seems to me that the Supreme Court in Heller did not expand the 2nd Amendment. It concluded that the right to own weapons for personal protection is explicit in the Consititution, and the “regulation” put forth by DC was an unreasonable contraction of “the right of the people to keep and bear Arms.”

    • Aqa terror

      You sound like a hothead I wouldn’t trust you with a gun short of a water pistol

      • Mike M

        Yes, hotheads are concerned about the rule of law. Meanwhile all the cooler heads are so panicked by the news, they are ready to toss the Bill of Rights. Fortunately, Aqa, my rights are not your call.

  • Guns and roses

    90% of all gun shot wounds self inflicted.

    • Nyla J.

      75% of all stats are made up.

      • Just roses then

        A criminal has nothing to lose. Guess who kills first?

        I don’t know how many arguments are against the gun. But I know I cannot win against the “strong woman” who put all her eggs into a beretta.

  • nscw2014

    The cat is out of the bag. We will not submit.

  • Virginia Harlow

    Also, Del. Ken Plum, since there are over 270 million guns in America, in the hands of folks who obviously aren’t killing anyone, and it’s been that way for centuries, I think you need to question the notion that it was always thought to be a group right for a militia. Down through history, all,those people who owned guns didn’t get them, or keep as part of a militia. I perceive that that is a political,talking point thrown around to deceive and impress folks. Rhetoric that isn’t born out by history or facts.

  • Paul

    Del. Ken plum: “…we can return to the original intent of the Second Amendment.”

    Should the country return to the original intent of all the amendments, or just the ones Del. Plum wants to? My guess is that Del. Ken Plum would say no when looking at the intent of the 14th Amendment used to legalizing the act of terminating a pregnancy and having the Federal Government define marriage…a function of State Government.

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