“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.” – Second Amendment to the U.S. Constitution
Over the last 100 years, many debates have raged over the true meaning of the Second Amendment. While nearly impossible to address each one – at least without losing all five readers this page has – I hope to address one or two that I have heard frequently. One argument uses two words, “well regulated,” to imply that all gun laws are Constitutional. The other uses imagination to pre-suppose that the Founders never envisioned today’s weapons, or that they never intended civilians to own “weapons of war.”
Obviously, if the Founders intended to regulate the militia, there should be no argument as to whether or not we can regulate the arms the militia (and the people) can bear, right? I think this argument is flawed, for one fundamental reason: it ignores the frame of reference of the Founders. Instead, it substitutes the frame of reference of a civilian accustomed to a large standing military that is theoretically prepared to take on all comers.
Of course, before we can truly dive deep, we must visit some important definitions. I’ll be drawing definitions from both federal and state documents. For state documents, I will focus on my current state of residence, Virginia. Because most second amendment arguments center around the word “militia,” let us start there. By definition,
“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.” (10 U.S. Code 246)
Now, while I feel this needs a bit of revising with regards to age and gender, we can safely say that every able-bodied male citizen between 17 and 45, is, at the very least, a member of the militia. Now for Virginia. Virginia has its own version of the second amendment, which they call Article I, Section 13. It states,
“That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; 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.”
Here we see a much broader view of the militia, and a much broader view of the idea of regulation. So, let’s look at two more definitions, found in the Code of Virginia, Title 44, Chapter 1, Article 1:
“The militia of the Commonwealth of Virginia shall consist of all able-bodied residents of the Commonwealth who are citizens of the United States and all other able-bodied persons resident in the Commonwealth who have declared their intention to become citizens of the United States, who are at least 16 years of age and, except as hereinafter provided, not more than 55 years of age. The militia shall be divided into three classes: the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia Defense Force; and the unorganized militia.” (44-1)
“The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2 and 44-54.6 and except such as may be exempted as hereinafter provided.” (44-4)
Lastly, we turn to Merriam Webster for the definition of “regulate.” There are three definitions provided, but the first two are most applicable to our discussion:
“1a : to govern or direct according to rule
1b (1) : to bring under the control of law or constituted authority
1b (2) : to make regulations for or concerning
2 : to bring order, method, or uniformity to”
So, even if we look at the dictionary definition alone, we see that “regulating” a militia does not imply simply prohibiting actions or ownership of a firearm. It merely means that the militia, both organized and unorganized, exists according to a set of rules.
Back during the debates over the new Constitution, there was a significant disagreement on what form of military force the new government would possess. As evidenced by the Virginia Constitution above, many of the Founders were extremely wary of standing armies, having seen their frequent misuse by the powers of Europe.
Another example of this wariness comes from the Pennsylvania Constitutional ratification convention, where the dissenters issued a “Reasons of Dissent” stating “[t]hat the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game, and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.”
The Pennsylvania Convention also strongly disagreed with the amount of control that Congress exercised over the militia, saying, “the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny.” The Pennsylvania Convention didn’t even want Congress having control over the militia, much less have a standing army. If the proposed control by Congress was deemed to be too dangerous, who then should control the militia but the individual states themselves? Once again, the Pennsylvanians made this clear: “That the power of organizing, arming and disciplining the militia…remain with the individual states….”
At the same time, many recognized that the logistics of keeping the entire male population ready for professional military service was simply not feasible. Alexander Hamilton summarized his argument for a selected corps of militia to be maintained in a ready state in Federalist No. 29:
“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, or even a week, 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.
Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
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. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.” [Emphasis mine]
Note here that he says “the people at large…properly armed and equipped.” I really don’t know how he could have made it any clearer that he intended every male (and now female, I believe) to have weapons capable of military service.
While many have argued that the existence of the National Guard makes the idea of the militia (and the Second Amendment) obsolete, it is very clear that the Founders intended an armed citizenry with a selected, well-trained corps available for immediate use. Hence, we find ourselves with the modern definition of the militia divided between the organized militia of the National Guard – the “select corps” if you will – and the unorganized militia composed of the “body of the people, trained to arms.” Essentially, it is a layered defense. The select corps forms the immediate reaction to a threat until the larger body of citizenry can be brought up to a level of proficiency necessary to meet the threat.
James Madison makes this even clearer (Federalist No. 46) when he discusses the role of the militia in preventing the federal government from using a standing army to repress the states:
“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.” [Emphasis mine]
Note that he specifically uses the phrase “a militia…of citizens with arms in their hands.” This clearly indicates that the militia is composed of more than just the select corps (today’s National Guard). Both Madison and Hamilton refer to “the people” and “the militia” in a manner that portrays a common armed citizen (the unorganized militia), not necessarily a trained soldier, as the “select corps”/National Guard would be.
So, back to the subject of regulation. If, indeed, only those defined in 10 USC 246 or 44-1 are allowed to have firearms (and I don’t believe that to be true, but let’s go with it), what sort of regulations would we expect to see? Realistically, we would probably see requirements to own specific types of firearms, as well as training requirements for those arms, not regulations banning those firearms. For example, the standard rifle of the U.S. military is the M16/M4 series. So, if we truly regulated the militia – to include the unorganized militia – we should be requiring all members of the unorganized militia to own and practice with an AR-15. There should also be physical fitness requirements (which might help the Army’s issues with fat recruits), but I digress. Essentially, we would be following the Swiss model, requiring members of the militia to own and maintain both weapons and equipment in their homes. Why their homes and not armories? Because in the case of immediate need, mustering at an armory for gear issue will be significantly slower than members grabbing their home gear and moving out. There would be exemptions, of course, as even the Founders recognized, but the “citizens with arms” would be a key feature of our defense.
It is also worth noting that some of the Founders were opposed to even the idea of a Bill of Rights, believing that the rights mentioned therein were God-given, and could not be taken away. By way of example, Alexander Hamilton (in Federalist 84, and referring to the now First Amendment) stated:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”
Yes, you read that right. Alexander Hamilton was fearful of enumerating God-given rights in a man-made document because he was afraid that doing so would imply that the government somehow had the ability to regulate those rights…
Similarly, James Wilson made a speech on October 6, 1787 in which he described why a Bill of Rights was not needed:
“[I]n delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident that…everything which is not given is reserved.
This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.”
In other words, because the Constitution did not specifically give Congress permission to regulate the right to bear arms, that right was completely reserved to the people. Obviously, the Bill of Rights was later added over both Hamilton’s and Wilson’s objections, but that does not change the Founders’ clear state of mind when it was drafted.
In the wake of current events, as more and more people call for regulations and twist the words of the Founders, let’s not forget what they really meant, and why they were so adamant about what they meant. It is readily apparent that it was meant to provide ordinary citizens with the ability to possess weapons for military use. It wasn’t about hunting, and it wasn’t even about self-defense, as noble a right as that is. It was to allow ordinary citizens to protect their country and Constitution from enemies both without and within. It is the ultimate check on tyranny.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 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.” – Declaration of Independence
The Dangerous Liberty Project 