“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.”
A key claim of the collective-right and quasi-collective-right schools with regard to the Second Amendment’s preface is that a “well regulated Militia” is a standing military organization or body of troops, of limited size, organized and governed by state governments, albeit concurrently with the federal Government (akin to voluntary select forces such as the National Guard that were established over a hundred years after the Amendment was adopted). As a result, the argument goes, the Amendment merely protects the States against federal efforts to undermine such forces, either by protecting the States directly or by protecting only persons serving in those forces.
This argument disregards the understanding of the “Militia” at the time of the Founding. As used in the Second Amendment, and elsewhere in the Constitution, “Militia” referred to a body consisting of all adult male citizens up to a certain age (anywhere from forty-five to sixty), the goal being to include all who were physically capable of service. It was not limited to a select force of persons in active military duty. This entire population of able-bodied male citizens was involuntarily “enrolled” by local militia officials, somewhat as men now register for the selective service (except that enrollment required no action by the citizen), and all enrolled citizens were required by law to join occasional “exercise” – to which they were expected to bring their own, private arms – but they otherwise remained in civilian life. The militia “rest[ed] upon the shoulders of the people,” because, as then understood, it consisted of a large number of the “people” at any one time and of all of the able-bodied white men for a substantial portion of their lives. It was the people embodied as an armed force. Thus, a key aspect of the term “Militia” was the composition of the force to which it referred. As a result, the reference to the “Militia” in the Second Amendment’s preface “agrees with” the individual right that the Amendment’s operative text sets out, because securing to “the people” a right to keep and to bear their own arms made such a broad-based, privately armed force more likely to exist and to be effective.
The Second Amendment protects the individual citizens from having the federal government confiscate them. Period. There really is no debate that the Founder’s phrase “militia” referred to the individual citizens and not to a federally-organized military force. The mere fact that a person is a law-abiding citizen of the US guarantees their God-given right to keep and bear arms.
Second Amendment, keep and bear arms
2 responses so far ↓
1 Flick // Dec 28, 2007 at 4:43 pm
With rights come responsibilities. For anyone interested in exploring the possibility of taking the responsibility that comes with the right to keep and bear arms, you might consider finding a militia unit near you, asking them a bunch of questions, and even joining up. You can do this by visiting http://www.awrm.org.
2 Leif Rakur // Dec 28, 2007 at 5:58 pm
A discussion of the history of the Second Amendment needs to include the fact that in 1789 the individual states had laws that REQUIRED nonexempt male citizens be enrolled in a militia company, to periodically muster for training, and to furnish their own arms.
In 1789 America, a well regulated militia was one that was regulated in accordance with such a law – that is, in accordance with a “well regulated Militia Law,” as Washington put it.
The fact that many potential militiamen took advantage of lax law-enforcement and loopholes to avoid militia service is pretty strong evidence that militia service was often regarded a burden rather than a “right.”
And yet the “individual right” interpretation of the Second Amendment would mean that the Framers were focused on keeping the federal government from infringing the “right” of individual militiamen to obey their own state militia laws.
Your statement is no doubt correct that the militia was “the people embodied as an armed force.” This is analogous to Article 1, Section 2 of the Constitution, in which “the people” are “the people as an electorate,” not the people as a general public.
It was the perpetuation of the militia (“the people embodied as an armed force,” as you said) that anti-federalists such as Patrick Henry and George Mason wanted to protect through Constitutional amendment. They feared that the federal government would abolish the militia system and set up an abusive standing army.
Mason specifically pointed out a way by which the federal government might impose a standing army – not by openly disarming the people as individuals, but by “disusing” and ignoring the militia:
“What havoc, desolation, and destruction, have been perpetrated by standing armies! An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.” (George Mason, Virginia ratification convention, June 14, 1788)
It was this fear that the militia system would be abolished in favor of a standing army that led to the Second Amendment. The Framers wanted to assure the people that the federal government could not constitutionally abolish their right to keep and bear arms as a well regulated militia.