By Johannes P.
University of Tennessee College of Law Professor Glenn Reynolds argues in a column in USA Today that militias, as such, no longer exist in the United States, and that the country is worse off for it. Reynolds notes that the Second Amendment’s introductory phrase states that its objective is a “well-regulated militia” which is “necessary to the security a free state”. So, the Professor from the Volunteer State asks: where are the militias nowadays? . . .
“The Militia” definitely isn’t the National Guard. The real militias were quashed by Congress and the Wilson Administration after the latter tried (and failed) to order them to invade Mexico:
In 1912, when the federal government tried to send militia units into Mexico, the militias balked, noting that the Constitution allowed them to be called out only to repel invasion, suppress insurrection, or enforce the law — not to invade other countries. Surprisingly, perhaps, Attorney General George Wickersham agreed, leading to a change in the law that produced the modern-day National Guard, a force that is not so limited. Since then, America has been far more active abroad.
To bolster his case, Professor Reynolds cites Yale Law Professor Akhil Reed Amar, who wrote about the militia in The New Republic (fifteen years ago, that is, when TNR actually was interested in arguing about ideas, before it started doing public relations full-time for the Obama Administration). Amar argued that the Second Amendment does have a collective application – but perhaps not in the way gun-grabbers think:
Like the militia, the jury was a local body countering imperial power — summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits.
Professor Reynolds notes:
But although the militia survives in vestigial form in the statute books, as a functional institution, it no longer exists. For law enforcement, the militia has been replaced by professional police, with SWAT teams, armored vehicles and Nomex coveralls; for military purposes, the militia has been replaced by the National Guard, which despite a thin patina of state control is fundamentally a federal military force.
This makes life easier for the federal government.
Our Founding Fathers apparently thought the militias were a valuable check on government power, and something that should be maintained by the citizens of a healthy Republic. Committing to return to a militia system, however, would be a serious inconvenience for those of us who have chosen to keep and bear arms. It would require us to commit to train regularly and be subject to call-up at critical moments, taking people away from families and well-paying jobs. It’s much easier to hire professionals to do the work for us. Certainly, it’s more convenient for governments, who want military and police to obey lawful orders without question. Perhaps that’s why the pendulum swung away from citizen militias 100 years ago.
Your scribe highly respects what the Founding Fathers did, but the fact that they had an idea does not always make it the correct one today. I like the idea. I’d probably volunteer myself. But I have no illusions that there’d be considerable resistance to the idea — both from the people who oppose the right to keep and bear arms, but also from sheer inertia on the part of the many law-abiding gun owners who simply don’t want to be bothered with giving up their free time.
Would you be willing to give up your time and money to train – and be subject to call-up by municipal or state governments when needed, possibly without pay – to participate in a citizen militia, as discussed by Professors Amar and Reynolds? Or is the militia ideal truly dead in America?