By Erick M.
The gun control lobby has hung hard onto the Militia provision of the Second Amendment, trying to justify the government regulating private arms practically out of existence. Without getting too legalistic, the Militia provisions in the Constitution actually serve to bolster the natural rights of defense and arms. This will help you clear the ignorant fog of “militia” and “well regulated” arguments in gun control discussions and actually turn that rhetorical weapon around to use against them . . .
What a “well-regulated Militia” really means
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 right of the people to arms is coupled with the militia provision of the Second Amendment in a direct parallel to the First Amendment’s protection of individual speech and the press coupled with peaceable assembly and petition for redress of grievances. The Second Amendment, observing the effect of the last comma, is properly read to refer to two things that “shall not be infringed.” The right of the people to keep and bear arms, individually, of course, is protected, but also the Second Amendment protects the primary power of a revolutionary People: to assemble — “un-peaceably,” (i.e. — bearing arms en masse) – in the form of the Militia.
George Mason referred to the Militia in the Virginia ratification debates: “I ask, sir, what is the militia? It is the whole people, except for a few public officials.” Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788. The Second Amendment similarly protects the individual right of people to be armed, coupled with the power of the people to participate in armed assemblies — though in an orderly and lawfully prescribed manner, as laid out in the other militia clauses.
The Militia is not a right, or not just a right – it is a power that arises naturally from a People who are individually armed. In our case, it is specifically an armed revolutionary People who were instituting the Constitution in question. In it, they reserved their natural power to participate together in the armed defense of themselves and the enforcement of their laws. They made their power subject only to being put in good order as a more effective and disciplined body – or in other words, being “well regulated” – which is to say improved and bettered by good order– but not “infringed.”
Hamilton in Federalist 29 during ratification goes over this sense of “well regulated,” referring not to provisions governing possession or use of individual arms, but of establishing regulation over the inherent powers of Militia — as a body of armed people– in their form, organization, arming and discipline:
“What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen… to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. … But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia.” In the Constitutional context, this power of armed assembly is to be “well regulated” by some scheme of organization and for defined purposes of public order and defense.
The OTHER Militia Clause
The other Militia clauses read as follows: Art. I, Section 8, Cl. 15: “[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” Art. I, Section 8, Cl. 16: “[The Congress shall have Power]… To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” And lastly, Art. II, Section 2, Cl.1: “The President shall be commander in chief … of the militia of the several states, when called into the actual service of the United States;”
Congress has a very limited – but exclusive – set of roles: to provide for “calling forth” the Militia and “ to provide for organizing arming, and disciplining” it, but “governing” it only when in actual federal service. Notably, Congress has no power to “disarm” the Militia, which is to say the People, “ except for a few public officials.” The States operate and staff the Militia ordinarily — but can’t make the organizational or logistical rules for them.
The Militia has not just a military role, but a civil one as well : “… to execute the laws of the Union.” The “calling forth” language is speaking of the posse comitatus. Hamilton in Federalist 29 directly discusses the role of the Militia in posse comitatus , the power to call forth men at arms to enforce the law and apprehend law-breakers for adjudication. It is from this power that our present professional police evolved in the 19th century. The “select corps” of militia, also discussed by Hamilton in Federalist 29 are none other than our various police and law enforcement agencies, as we refer to them today, and which Hamilton also sagely predicted:
“The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.”
This pragmatic approach came with a serious caveat however:
“. … but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
Putting it all together
Reading all of the Constitution’s Militia provisions together, we come to something like the following summary of what can and cannot be done in governing the keeping and carrying of arms, individually and collectively. Congress cannot debar any person the use of any arm properly capable of being kept OR carried by a person for defense of their person or home.
This practical line is fairly easy to observe. Tanks and bombs, by contrast, are solely military weapons designed and intended for use in or against en masse formations or fortifications, not in ordinary self-defense, either of the person or of a home or refuge. (Leave aside automatic weapons, which warrant an entire discussion of their own).
What Congress can do is to prescribe a certain regular order in forming and disciplining the body of the people as Militia. What it can do is govern the activities of such parts of the Militia as are “called forth” into direct federal service. What it cannot do is actively govern the Militia’s activities when not called forth in federal service (when they are being administered by the States). Congress has no power whatsoever to “disarm” the People, individually or collectively. The Militia considered as a power of the People presupposes individual people being armed — or there can be no Militia at all.
This kind of organizational regulation aids the People in their role as an armed assembly of Militia and does not infringe it. Undisciplined, unorganized armed nobs are ineffective in both military and law-enforcement terms. Indeed, they can become dangerous to the people themselves. This kind of regulation may include prescribing certain arms that must be kept or carried for militia service – the first and second Militia Acts show this plainly. Such prescribed arms also do not infringe but aid the power of the People to assemble in arms, making it more effective by assuring common supply, parts and ammunition, and operational training, for instance.
The power to prescribe is not the power to proscribe or prohibit. Banning personally selected arms would infringe the right of the people to have at hand a relatively more effective weapon, or perhaps a weapon of greater familiarity or convenience. It also infringes the power of the Militia, by discarding the benefit of perhaps superior training in a personally chosen weapon.
Congress also has no power to allow for arming any “select corps” of the Militia (law-enforcement or police) to a standard of arms while disabling the rest of the People from the same standard of arms. Though Hamilton suggests it may threaten to become one, “select corps” of Militia would be distinct from an “Army,” which is a creature of its own under the Constitution.
Unlike soldiers of an Army, who operate only in their hierarchical formations, the People are also individually subject to being “called forth” — being deputized on the spot under the militia clauses in aid of the “execution of the laws” at any time as posse comitatus. The distinction between active law enforcement personnel and any citizen is simply one of relative preparedness to perform that militia duty, but is not a distinction in their legal status. As Hamilton recognized, “select corps” are merely part of the Militia, which is to say – the People.
And as Hamilton said of the Militia provisions in relation to and anticipating our present “select corps” and their dangers – there should always remain “a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
You may note that presently federal law enforcement “select corps” do not really appear at first glance to operate in compliance with the structures noted. But that is a topic of another discussion.