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What Is This ‘Well Regulated Militia’ Business, Anyway?

April 29, 2013 | Filed Under 2nd Amendment, Alexander Hamilton, Ben Franklin, Congress, Conservatives, Constitution, Declaration of Independence, Founders, George Washington, Government, Gun Control, Guns, History, House of Representatives, John Adams, Military, Regulation, Revolutionary War, Senate, Thomas Jefferson, Warner Todd Huston | Comments Off on


What Is This ‘Well Regulated Militia’ Business, Anyway?

-By Warner Todd Huston

The Question:

The Second Amendment to the Constitution of the United States of America, 1789: “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.”

We talk about the “right of the people” to “bear arms” all the time. But we don’t often talk about the “well regulated militia” part that precedes it. So, what is it about? Is this militia still relevant to us today? Can we just ignore it? If unnecessary, does the lack of a need for the militia make the whole Second Amendment null and void?

Background:

Our founders had just fought a war with one of the greatest powers in the world. In the mid 1780s, British forces were considered the best of the best. But our founders hadn’t joined a war with a “foreign power.” They had fought a war with their own government in order to separate from it and start anew. This was because we Americans felt England had violated our very rights as Englishmen.

As our Declaration of Independence notes:

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

As far as we were concerned, our English governors had begun a systematic attempt to change our rules for “light and transient causes.” That same British government was also using the force of arms to compel us to observe her wicked rule.

The founders also were experts on history and in their deliberations let history be their guide. By their reading of history governments used the force of arms held by their standing armies to oppress the people far more often than they ever did for benevolent ends.

To prevent that penchant for tyranny the founders came up with a novel idea. Instead of having a large, standing army, they’d rely on an armed populace organized in para-military organizations generally under the auspices of the state governments and not the federal. That way, the federal government can’t usurp undue power as the states and the people themselves would be able to stop such a thing.

But, the Second Amendment was also written to prevent the states from turning tyrannical. After all, the amendment centers its attention on both “the militia” and “the people” not the state or government. The rights are conferred on the individual militia members (not the state) and the people (again, not the state).

So, who is the “militia”? None other than we, the people.

That was later codified under the Militia Act of 1792 which holds in part that the militia is made up of “each and every free able-bodied white male citizen of the respective States” who “shall severally and respectively be enrolled in the militia.” Naturally once the Thirteenth Amendment made African Americans free and equal citizens, the “white” part was made invalid.

What the Left Says:

When the left tries to address the clause at all–and they don’t often bother with it–they find the whole idea of a militia to be a useless artifact.

The left scoffs at the idea that our current standing army might be turned against us. The militia is now unnecessary and that, they say, makes the whole Second Amendment null and void. As a writer on Alternet says, “the entire legitimate rationale for the 2nd Amendment has been obliterated.”

So, the left claims that a well regulated militia is no longer necessary for “the security of a free state.”

Another argument the left pursues is that the founders just couldn’t understand that technology would advance until we’d have machine guns that can cut down dozens of men in seconds. The founders only had muskets that took “twenty minutes to load.” This technological blindness also makes the Second Amendment null and void.

There is also some focus on the “regulated” part. The left expects that “regulated” is a means to impose regulations (i.e. rules, laws) on the militia.

Some want to use the “well regulated” part of the Amendment to serve their gun-banning ways, as well. One argument goes that until there is a properly, “regulated” militia created, then guns can obviously be taken away from people until and if said militia is organized and put into operation. In fact, this argument goes that if there is a militia that isn’t “regulated,” then it is actually a threat to the nation. Once again, they say this is proof that guns must be taken away from Americans.

For decades, the left has argued that if guns are at all guaranteed for Americans it is a “collective right” not an individual right. They maintain that the “well regulated militia” clause pertains to a group of men, not the individuals. Without the “well regulated militia” the individual citizen has no use for the firearm under the Second Amendment. The first precedes the latter and without the first the latter is null.

Lastly, many on the left just dismiss the whole argument. The Constitution isn’t a fixed thing, after all. It is a “living document.” The Constitution is “a work in progress” and we can change it any time we want. So, why bother getting into the tall weeds on this? It’s outdated, we don’t have to be held to it, let’s just eliminate it. We should abandon that old White men’s document and make our own rules whenever we want to.

What the Right Says:

The right doesn’t often discuss the militia aspect of the Amendment, either, to be sure. But a proper refutation of the left’s points above is generally made when they do.

The right notes that the idea that we can just accept our military as forever harmless to we, the people, is absurd. Ben Shapiro made the argument perfectly on CNN saying, “They may not turn on me. They may not turn on my children. But the fact is this, history is replete with democracies going tyrannical. It has happened. It happened in France in the 19th century. It happened in Spain in the last century. It happened in Germany. It happened in Italy. It happened in Japan.”

The left says that the founders weren’t smart enough to understand technology would change and science would create better and more lethal ways to kill. This is, of course, nonsense. Our founders were men of science and even in their day scientific discoveries were mounting. This line of reasoning holding that the founders were not smart enough to know technology would advance is a red herring, not an argument.

But let’s think of this a second way. The Second Amendment affirms a right that exists for the people. If we are to say, however, that changing technology materially alters the meaning of the right, then we are necessarily saying that advances in technology supersedes our rights! This would be a dangerous contention.

The left says the “regulated” part pertains to laws and, therefore, we can nearly regulate guns out of existence using this power. This, of course, obviates usage of the English language of the period.

The Federalist Papers (Number 29, Alexander Hamilton) gives us our clue as to what “well regulated meant.”

“The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary 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.”

So, “well regulated” really meant “properly functioning.” It didn’t have anything to do with setting rules and laws for the militia. They also commonly imagine that doing the “regulation” should be done on a federal level where the founders expected the militias to be organized at the state level and not under federal control.

As to the individual vs collective right claim, libertarians and conservatives both say that the Constitution obviously confers the right to own a gun on the individual. Lately, the U.S. Supreme Court has agreed with this individual right.

Lastly, we all know that those of the right of center generally assume the Constitution to be the law of the land, a fixed document that only has to be read, not constantly “interpreted” in new and unusual ways.

The Future:

The recent decisions by the U.S. Supreme Court (Heller and McDonald) have thrown a bone in the left’s argument that the Second Amendment is only a “collective right.” From these two momentous decisions, courts are revisiting strict gun laws across the country. This will continue and many more cases will likely head toward the SCOTUS for debate. We will also see states and federal laws written to push the envelope.

Commentary:

Several things need to be pointed out. Firstly the founders did not want to exclude any standing, national army. After all, the army is taken care of elsewhere in the Constitution. The militia was supposed to exist concurrently with the standing army but operate separately.

Secondly, the founders expected that the right to self-protection was an inalienable right given to us by God. After all, without the power to protect ourselves and our property–and the sanctity of personal property is key, here–we were not free men. Those that must look to others for protection of life, liberty, and property are beholden to someone else and, therefore, not free men.

In this light, Thomas Jefferson was adamant in his drafts of the Virginia Constitution of 1776: “No freeman shall ever be debarred the use of arms.”

You see, the founders based a lot of their ideas of the law on the ideas of an English lawyer named William Blackstone whose works were widely reprinted in the colonies.

Here is what Blackstone said about being armed in his Commentaries on the Laws of England, Vol. 2, 1765: “…since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society…”

I mention this to explain why the founders did not include in the Constitution any language that specifically notes the individual’s rights. It was taken as granted and therefore unnecessary to reiterate in a document they were trying to make as concise as possible.

So, in modern terms, you cannot take away from a man the right to self-defense on either the micro or macro level. This hardbound natural right codified by Blackstone led Supreme Court Justice Joseph story to put it in clearer terms where it concerns the purpose of the militia: “The right of the citizens to keep and bear arms,” Story wrote, “has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Thirdly, the founders also located power over the military/militias in four places to further prevent its tyrannical use. Congress regulated all branches of the military, but the president was the ultimate commander of that military, yet the states were placed over the militias when not in federal service. Finally, the individual citizens were in control of their firearms never to be disarmed.

As founding father Samuel Adams said during Massachusetts’s convention to Ratify the Constitution: “That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

One last point needs clarification and that is the discussion of muskets vs today’s arsenal.

The word “bear” meant to be able to carry or hold. In some parlance of the time “bear” even meant to be able place in one’s coat. This necessarily restricts the sort of arms we are talking about as it means we are talking about an arm that is operated by one person, not a team of men.

Certainly the founders meant Americans to “bear” military grade arms. One cannot be a member of a para-military group using small caliber plinkers and varmint guns. In their day arms meant military weapons. Muskets, pistols, even swords were “arms.” Cannons, land mines, and ships of war, however, were the “weapons of mass destruction” of the founder’s era. They never expected that the people had any right to those weapons of war. Such weapons of mass destruction are more properly, then and now, called ordnance as opposed to arms. It is also why the Navy is dealt with elsewhere in the Constitution.

This means that when the left taunts you by saying, “what, did the founders think you should have a rocket launcher, a jet fighter plane or a nuclear weapon?,” they are revealing their ignorance, not making a valid argument. The founders meant for the people to have military grade rifles and pistols. They excluded ships of war and cannons so by logical extension modern ordnance would similarly fall outside the rights of the Second Amendment.

So, no, the founders would NOT have thought we had a right to a nuclear weapon.

In conclusion, the Second Amendment clearly gives an individual a right to firearms, those firearms can be military grade, they can and should be expected to be used for both personal protection and to prevent government from become tyrannical by arranging themselves into para-military groups, and the government has no right whatever to take your firearms away from you.
____________
“The only end of writing is to enable the reader better to enjoy life, or better to endure it.”
–Samuel Johnson

Warner Todd Huston is a Chicago based freelance writer. He has been writing opinion editorials and social criticism since early 2001 and before that he wrote articles on U.S. history for several small American magazines. His political columns are featured on many websites such as Andrew Breitbart’s BigGovernment.com, BigHollywood.com, and BigJournalism.com, as well as RightWingNews.com, RightPundits.com, CanadaFreePress.com, StoptheACLU.com, AmericanDaily.com, among many, many others. Mr. Huston is also endlessly amused that one of his articles formed the basis of an article in Germany’s Der Spiegel Magazine in 2008.

For a full bio, please CLICK HERE.

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