The Right to Keep and Bear Arms?





Mr. Uviller and Mr. Merkel are co-authors of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Duke University Press).

There is, perhaps, a certain dullness in taking things at face value, in reading text as though the words meant what they said. We are, we suppose, conservative in our effort to understand the words of the Second Amendment according to their plain and literal meaning. We indulge in no flights of imagination.

We do not, for example, argue that, since the militia of the 18th Century were composed of the people, the two words are synonymous and interchangeable so that the Second Amendment can be read as though it said that the Militia being important to a free state, the right of the militia to keep and bear arms shall not be infringed. Nor do we imagine that, although the founding generation thought the two clauses of the Second Amendment to be closely linked - indeed mutually interdependent, the Fourteenth Amendment implicitly severed the link, awarding the right to bear arms as a privilege and immunity to the newly liberated black people, while leaving the obsolete militia clause to wither. And it goes without saying that, in our pedestrian respect for the written Constitution, we can not simply ignore half the Amendment, and argue that the right to arms was a constitutional recognition of the sporting pleasures of hunting and the manly virtue of self-defense.

Rather, we take the position that the Second Amendment was to the founders a vitally important provision, expressing distrust of the professional standing army (which was the handmaiden of the European tyrants), and providing that, whatever was said in the body of the Constitution about the military arm of the new government, the people still relied on local units, comprising all eligible citizens, trained and regulated, armed with their own weapons. And further, the Amendment served notice that no jealous organ of the central government should ever try to weaken the people's army by making laws depriving the eligible citizenry of their weapons. The implicit republican virtue of service, celebrated in this Amendment, was a precious remnant of a social ethic being fast supplanted by the elements of a liberal democracy. But the provision of the Second Amendment was not a post-enlightenment credo in disguise. It did not glorify personal access to arms, nor the right of the people to keep arms to protect themselves against the government.

Perhaps our central theme is the evolution of the military institution known to the founders as the "militia." Stressing as we do the right to arms as an enabling feature of the militia, we could not avoid the question: where is the militia on today's landscape? If there is any life to the militia in modern times, perhaps the scope of the right to keep and bear arms in service thereof bears some close examination, and generous interpretation. We give little serious attention to the claims of various small, dispersed groups of self-styled militiamen, taking target practice in the woods while sporting battle fatigues, and spouting their own brand of libertarian patriotism. But we must take more seriously the status of the National Guard who, to many, are the rightful heirs and descendants of the militia of old. So a substantial portion of the book is taken up with a genealogy of the citizen's army. We conclude that our armed state/federal troops of the 21st century no longer bear any genetic markers of the militia envisioned by the founding generation. The defining characteristics of the militia as originally understood were compulsory service by all eligible men, training and organization, occasional service as required, and strong responsibility to local command. And, of course, the Second Amendment assumes that members of the militia would be self-armed. While we hesitate to say that the constitutional militia is obsolete, we do conclude that it is dormant.

It is conceivable that circumstances might arise in the future where a militia meeting the 18th century description might arise, and the Second Amendment would once again forbid any effort by the federal government to disarm them. But, as things stand, there is no such military force and, accordingly, the Second Amendment sleeps. We are aware that there are people who do not like to think that any of the sacred provisions of our constitutional decalogue are silent, inapposite in today's world. Most - maybe eight out of ten (a surprisingly large number) - of these wise and well written provisions are fully applicable and important in the American society of today. But not all. Think, of the Third Amendment forbidding the quartering of troops in private residences in peacetime. And there may be one that - by its terms, at least - should probably be allowed to retire (it is one of the scant few that are not binding on the states), and that is the Seventh that guarantees a trial by jury for all civil cases where the amount in controversy exceeds twenty dollars.

Where this leaves us in the current controversy regarding gun control is simply stated. We do not think that the Second Amendment has any bearing on the question of whether guns should be freely available or sharply controlled. The Amendment is simply irrelevant to the issue, as important as that issue might be. And that leaves the matter completely in the hands of the political branch. And we think this is not an uncomfortable position. The people must decide .by legislative choice many important aspects of their lives together in civil society. The wisdom, effectiveness, configuration, and moral virtue of gun control is not an inappropriate matter for the expression of popular sovereignty rather than constitutional control. Moreover, diverse resolutions of the enigma are not antithetical to a federal society such as ours.

Thus, to paraphrase the Second Amendment without altering its meaning, we understand it thus: "So long as [or inasmuch as] a well-regulated militia of the whole people stands as our preferred military protection in a free society, the Congress shall make no law disarming those citizens of the weapons necessary for their military duties. While the cases before the Supreme Court on this Amendment have been few and old, no case had ever resolved the issue contrary to this reading until the year 2001. In that case, Dr Timothy Joe Emerson was convicted of possessing (and threatening to use) a Baretta following a pro forma court order of protection in a domestic dispute. The United States District Court agreed with his argument that the Second Amendment guarantees Emerson's right to keep a gun. While not entirely coherent, the Court of Appeals for the Fifth Circuit endorsed this view of the constitutional provision in 2001. The Supreme Court declined to review the case. So we are all waiting for another court to present an opportunity for the High Court to declare the modern meaning of the Second Amendment. When that occasion arises, we hope the Court will heed our argument.


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Cristal Shanda Lear - 12/19/2003

I'm not a scholar. I'm not even a college graduate. But I can read. I ran across this discussion while doing some research on the Patriot Act and thought maybe I'd do some comparison research as to it's effect on the Second Amendment, if any.

This is what 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."

Anyone can put their convoluted connotations to it, but to the average citizen it means I have the right to carry a gun if I want to. For personal defense, including my person or home; and that in the absence of my government, I am allowed to defend myself with my "arms" if necessary. Why have it if you can't use it?

That if our government abuses it's power and becomes the "oppressor" that the people can do to the established government exactly what we did to the Brits: establish militia's and run them out. If I'm not mistaken, didn't this country get started by an armed citizenry who overthrew the people in charge?

Lastly, that if my government needs help with a fight, they just might need an armed populace to help out. We may have to protect ourselves from ourselves, but we also may need to protect ourselves from others. Can you say September 11? What if that was the day war was declared on our country and we were invaded? Wouldn't you have wanted to be armed?

My arguments may be simplistic and may even underdeveloped. But the idea of the Constitution was to make things plain for everyone. Not just a few, and especially not just for those who choose to abuse what we've elected or selected them for in the first place.

Quit whining about it and simply stand up for what you know to be right. The constitution is not a guideline. It is and always should be "the law of the land". The Bill of Rights should never be circumvented or "modernized". It means what it says and those who try to get around it, should NEVER have been put in public office and should be elected out or impeached as quickly as humanly possible.


stephen james gilkey - 12/17/2003

i think that the admendment is very good to have in the constition and all so that concludes this instring history of the right to bear arms.



thank you for your information on the admendnt right to bear arms
8th grader


stephen james gilkey - 12/17/2003

i think that the admendment is very good to have in the constition and all so that concludes this instring history of the right to bear arms.


stephen james gilkey - 12/17/2003

i think that the admendment is very good to have in the constition and all so that concludes this instring history of the right to bear arms


John Whitley - 7/20/2003

To really understand what's going on in the United States, Britain, Canada, and Australia today with regard to civilian weapons ownership and self defence, we need to see it from the globalist perspective.

Under the fast-approaching, liberty-shattering 'New World Order' so beloved by Tony Blair, both of the Bushes, and the US and UK political elite, there will be NO personal weapons of any kind permitted, nor any 'culture of violence' [i.e. no potential future resistance].

For a good introduction to the elite's ultimate goals in this, from a U.S. perspective, see "GUN CONTROL AND THE NEW WORLD ORDER' at http://www.survivalistskills.com/nwa.htm">http://www.survivalistskills.com/nwa.htm as well as 'OPERATION GARDEN PLOT' at http://www.survivalistskills.com/GDNPLOT.HTM">http://www.survivalistskills.com/GDNPLOT.HTM and 'THE PLANNED US AND CANADIAN CONCENTRATION CAMP AND DETENTION CENTRE PROGRAM' at http://www.survivalistskills.com/camps.htm">http://www.survivalistskills.com/camps.htm.

The rational and normal mind recoils from the idea that a nation's leaders might be at perpetual war with their own people in pursuit of some higher, global goal. But read "The U.S. Public Warms To The Idea Of Civilian Concentration Camps" at http://www.survivalistskills.com/CONCAMP.HTM">http://www.survivalistskills.com/CONCAMP.HTM [This is a long page, slow to load, but well worth it. Be sure to see the quotes and astonishing photographs at the end of the article!], and reflect on how consistently this occurs, and how easily the general public are pursuaded to applaud and agree with their own loss of rights.

[for a similar perspective on the same process at work in Canada and the UK, see "How Canada Lost Its Liberties And Freedoms - And Few Cared!" at http://www.survivalistskills.com/CANLIB.HTM">http://www.survivalistskills.com/CANLIB.HTM and "How Britain Legislated Away 2,000 Years Of Rights And Freedoms" at http://www.survivalistskills.com/UKLIB.HTM">http://www.survivalistskills.com/UKLIB.HTM]

Still unpersuaded? http://www.survivalistskills.com/TRAGEDY.HTM">"TRAGEDY AND HOPE", by Professor Carroll Quigley, is a virtual 'blueprint' of the political elite's game-plan for accomplishing their 'New World Order' by guile - and by force, where need be. Read the huge array of quotations from political and other leaders on that page, and ask yourself whether they have not already accomplished much of what they need to achieve in order to turn the world into a giant 'global plantation', where they are the unresisted masters.

There's a substantial archive of other fascinating and invaluable http://www.nwointelligence.com">'New World Order Intelligence Update' articles on the New World Order at http://www.survivalistskills.com/sect22.htm">http://www.survivalistskills.com/sect22.htm and archived also at http://www.rarehistorybooks.com/NWOLINKS.HTM">http://www.rarehistorybooks.com/NWOLINKS.HTM. The 'NWOIU' site itself is currently down for substantial re-construction, but these archived articles are well worth reading.

All of us will ultimately be the victims of this global drive to eliminate the means - and even the very thought - of self defence.



Clayton E. Cramer - 6/16/2003

"It did not glorify personal access to arms, nor the right of the people to keep arms to protect themselves against the government."

Why, then, did Federalist 46 say, with respect to the danger of federal government tyranny:

"Extravagant as the supposition is, let it however be made. 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." This certainly sounds like "the right of the people to keep arms to protect themselves against the government."

Perhaps the authors will explain why it is that Cockrum v. State (Texas 1859) explained the purpose of the Second Amendment like this: "The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed."

Perhaps the authors can explain why EVERY 19th century decision or constitutional commentary on the subject except for one, disagrees with them. Perhaps they can explain what Joseph Story was talking about in _Commentaries on the Constitution of the United States_ (1833):

"§1889. The next amendment is: '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.'

"§1890. the importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the 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."

Is that clear enough for you? Not that I expect either Uviller or Merkel to respond to me pointing out that they don't know enough about the subject to write about it.


Clayton E. Cramer - 6/16/2003

"In the first paragraph they say that the militia and the people are not the same thing, and that the amendment intentionally provides the right to bear arms to militias."

Two problems with this:

1. Repeatedly, those debating the Constitution's ratification emphasized that "the militia" were "the people."

2. The Second Amendment doesn't grant the right of bear arms to militias, but to "the people." Just about every 19th century court decision that addresses the question of what the Second Amendment means is in agreement: it's a right of individuals, not a collective right of a militia. See http://www.claytoncramer.com/primary.html#RKBADecisions for images of many decisions of the courts. In particular, read Nunn v. State (Ga. 1846) in that list.


Bill Stepp, Libertarian at large - 5/26/2003

The real problem with the Second Amendment as a defense of the right to own guns is that it overlooks the fact that rights exist independently of constitutions and are not created or even defended by them. Indeed, Article 1, section 8 is a laundry list of crimes (powers) for the American State to commit, which it has done with a vengeance. For a libertarian defense of natural rights, see Murray N. Rothbard, _The Ethics of Liberty_.

The 55/39 usurpers (so-called framers) had no one's power of attorney to foist a government over anyone, and as the great libertarian writer Lysander Spooner pointed out in _No Treason_, they had no right to bind future generations.

No government has a right to confiscate, tax, license, regulate, or otherwise control anyone's gun.


Dave Thomas - 5/25/2003

The right to bear arms recognized that any adult male, everyone one of them belonged to the militia in colonial times, had the right to protect himself when the proper authorities refused to do so. The right to bear arms kept African Americans in the South from being lynched in even greater numbers from 1877-1965. The right to bear arms allowed AIM to make statements against injustice they never could have accomplished without guns. The authors sound more like King George III wishing the average colonist had not means of resisting tyranny than what the founders intended. The average American had a right and duty to violently overthrow corrupt authority, and that right was useless without a gun in the hand.


Edward Furey - 5/22/2003

The assumption seems to be that the term "militia" appears only in the Second Amendment. In fact, Article I, Section 8 defines it, essentially, as whatever the Congress wants it to be and reauires that that states follow its mandate. Among the powers enumberated for the Congress is:

"To provide for the organizing, arming, and disciplining of the militia, and for governing such 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."

This is separate from the power to raise armies and navies.


Thomas Gunn - 5/16/2003


05-16-2003 ~1310

"We do not think that the Second Amendment has any bearing on the question of whether guns should be freely available or sharply controlled. The Amendment is simply irrelevant to the issue, as important as that issue might be."

I don't think the Second Amendment is irrelevant to the issue or question of whether guns should be available to the people. The right of the people to keep and bear arms, shall not be infringed. You see boys, that is from whence the armed militia will spring, when needed!

It looks to me like it's you boys who are irrelevant. The Second has never been asleep. Neither has its supporters. You boys realize you can not overturn the Second so you are reduced to attempting to convince that it is irrelevant, and strive for a political solution. Aint gonna work, least not in my lifetime.

Have you boys noticed the AW ban is about to sunset? It's history! And for good reason, it accomplished nothing except hardship on those who would not have misused the banned AW's anyway.

What I don't understand, for the life of me, is how you history boys can believe that more of the same failed legislation is going to have a different outcome. It's sad . . . really!




thomas


mark safranski - 5/15/2003

Assuming everything the authors believe to be correct is - and I think they're stretching things to find a constitutional way to lock up guns in an armory - but let's grant that.

How does the National Guard's complete organizational, command and procurement integration with the standing army and federal control affect it's status as a " militia " ? Hamilton would be jumping for joy but I reckon Tom Paine and George Mason might be a little perturbed.

What about states, like Illinois, that have constitutions that define all able bodied adults as members of the " unorganized militia " ?

If the authors would care to comment I'd be appreciative.

http://www.zenpundit.blogspot.com


Richard Henry Morgan - 5/14/2003

J, I know from your other posts that you know the difference -- it's just that some others don't seem to understand the difference. I have other quibbles with the two professors. They state:

"It [the Second Amendment] did not glorify personal access to arms, nor the right of the people to keep arms to protect themselves against the government."

The first part is true, the second problematic. The only exegesis of the what was to become the Second Amendment (at the time it was Madison's proposal, and it still had the CO provision attached), was Gerry's comment in Congressional debate that the purpose of the proposed amendment was to allow the people to resist maladministration by the federal government. This went unopposed -- though silence hardly implies assent. When you combine it with Madison's Federalist 46 though (and other comments), a case can be made that this was viewed as AMONG the purposes to be achieved by the Second in the view of at least some (it says the people, not the states). I think we have to be careful in avoiding the trap that there was a single purpose to be achieved by it.

They also state:

"Stressing as we do the right to arms as an enabling feature of the militia ... "

It is precisely an enabling feature, not the enabling feature. During the War of 1812, Congress and Madison granted the states (in fact mandated) the power to arm their militias. The question then becomes, is the militia as defined by the professors a condition on the right -- does their concept of a militia restrict the scope of the right?

Here they go further:

"We conclude that our armed state/federal troops of the 21st century no longer bear any genetic markers of the militia envisioned by the founding generation."

They are quite right. The armed state/federal troops no longer bear ANY genetic markers of the militia as envisioned by the founders. They are a standing army and a volunteer militia -- they are not the militia of common law nor the federal codes. For the professors, the "defining characteristics of the militia as originally understood were compulsory service by all eligible men, training and organization, occasional service as required, and strong responsibility to local command." But I could quote any number of sources to the effect that the sole defining characteristic was compulsory enrollment by military age citizens capable of bearing arms. Debate turns on whether the other characteristics they push into their definition are indeed defining, or just common.

Here is the over-reaching:

"And, of course, the Second Amendment assumes that members of the militia would be self-armed."

The Constitutional debates make clear (in the comments of Rufus King) that the federal government will have the power to mandate the manner of arming -- whether it be by the federal government, the states (as in the War of 1812), or by individuals (as mandated in the Militia Act of 1792). The Second Amendment does not address the arming of the militia as a mandate directed by the federal government -- it gives the people the right to arm themselves, so that they may have an armed militia should the federal government not exercise its power. Indeed, the federal government has not mandated the manner of arming today -- they neither arm the militia (that body of citizens capable of bearing arms) themselves, nor direct the states nor the people to do so. Question: does the federal government not exercisizing its power remove the right that arguably was adopted precisely to make provision for where the federal government did not exercise that power? It all comes down to a definition of the militia, and whether the Second Amendment puts that definition in service of a condition on the right. I doubt it, given the widespread belief that the militia indeed (if Gerry, Madison's Federalist 46, and other comentators are to be believed) was designed, in part, as a check on the federal government. Moreover, the current federal codes maintain the existence of a militia that meets a core (and perhaps the core) definition of the militia. Their argument is ingenious, but it refuses to engage the idea that the militia has a purpose as a check against federal tyranny, or that it has a definition that remains in legal effect to this day. Just where they get the militia having to meet the condition of "our preferred military protection" is just beyond me (particularly since it is related, in the Amendment, to the freedom of the STATES).


J. Merrett - 5/14/2003

Honest, I do know the difference between a power and a duty. I just didn't look.

The most interesting thing to me is (if I follow their logic) the professors seem to claim that the practical existence of any provision of the Constitution depends on its use. If only 1 in a million criminal defendants wanted a lawyer or a jury trial, they seem to say, the Sixth Amendment wouldn't guarantee him either, because people just don't use that right anymore. Hell, most people don't bother to vote. Do we still have a right to vote?

That leaves aside the fact that, no less than our great-great grandparents, we are subject under state & federal militia laws to be ordered by the President or Governor to show up at the park next Sunday for drill. The militia has always been "just folks" minding their own business, except when called into service. The professors' observation that the institution is idle is pretty much a tautology.


Richard Henry Morgan - 5/14/2003

"its own constitutionally mandated obligation to provide for organizing, arming, and disciplining the militia."

There is no obligation on the part of the federal government, if one just considers the Article I, Section 8 militia clause. It is, rather, a power. If there is a mandate, it is in the Second Amendment, where others have somehow discovered it -- I don't happen to see it there. Arguably, the Second Amendment is a gift to individual liberty, through which the militia can be armed in the absence of federal action. This would comport with the language, and the context -- the Federalists wanted to strip the states of sovereignty, and the Senate wanted to deny all arms to the states. Madison was appealing, as he explicitly put it, to the concern for individual liberties on the part of some anti-federalists, rather than the concern for state power on the part of the arch anti-federalists.

The professors interpretation is ingenious. It makes of the "well-regulated militia" a condition on the right to keep and bear arms. But preambles state the purpose the parties hope to achieve -- the goal, or end of the provision. Normally, this is not justiciable, as it serves only to remind the parties of their own chosen purposes. While it is not unknown that such preambles are used to interpret scope, that is not the general rule -- nor is it convincingly argued in this case. Again, an ingenious if ultimately unconvincing interpretation. One might ask, where is it written that the defining characteristics of a militia are those chosen by the professors? Certainly not in Miller, the only case on point. Their definition of a militia, combined with their unorthodox view of the preamble as a condition on the right, does the work in their piece. They are certainly entitled to urge it upon the world, and upon the Supreme Court. But it finds no precedent in Miller, nor in other Supreme Court jurisprudence.


J. Merrett - 5/14/2003

The writers suggest that, while the federal government would be constitutionally powerless to disband or disarm the militia if it were "active", it can nonetheless extinguish the militia, and the right to bear arms as well, by the cost-effective expedient of neglecting its own constitutionally mandated obligation to provide for organizing, arming, and disciplining the militia.

While enjoying a chuckle at the Third Amendment, they somehow neglect to apply to it the same reasoning they apply to the Second: since quartering troops in private homes is not a common concern at the moment, the amendment has gone dormant; therefore, it is for the political branches of government to decide whether you have to surrender your guest room to a platoon of Marines.

It really is remarkable where a priori reasoning can lead.


Richard Henry Morgan - 5/14/2003

My point was that the contributors to the Chicago-Kent symposium were not chosen for their expertise, as demonstrated by prior publications in the field, but for their anti-gun position. The Chicago-Kent symposium was, au fond, a fraud, as it advertized itself as an examination of the history and law of the Second Amendment, when it actually was devoted entirely to promoting the anti-gun stance favored by its sponsor, the Joyce Foundation, and its organizer, Carl T. Bogus, former counsel to an anti-gun group. In fact, some of the symposium members had been recruited from a list of signatories to the Yassky brief in the Emerson case -- signatories though they had no substantial record in the field. If there were a requirement for truth in advertizing in intellectual product, as there is in say, produce, then the symposium would be answering to legal authorities.


Chris O'Brien - 5/14/2003


I'm curious about how one might become a recognized as an expert without putting their ideas into the marketplace.

That said, I find this debate has become so firmly entrenched that the sides should just develop some sort of shorthand. It would save the rest of us the trouble or rereading the same arguments ad infinitum.


Richard Henry Morgan - 5/13/2003

The Constitution gives the US government the power to provide for arming, organizing, etc, the militia. The state guards may be, in a sense, the descendants of the old militia, but their organization and arming is not provided for by the US government, and therefore, arguably, they fall outside the title of militia as contemplated in the Constitution. That is, at least one possible answer to your question, though obviously not the only one.

There is, indeed, a history behind that question. Madison, visibly faltering, said in response at the Virginia ratifying convention, that arming, etc. of the militia was a concurrent power (responding to the fear it was an exclusive power, and that the power might go unexercised, and the militia therefore go unarmed). Henry responded, quite logically, that the other powers associated with the militia must also be concurrent, including the ability to appoint officers -- an instance of the reductio ad absurdum technique. The Second Amendment was offered in response. The militia could be armed by itself, without interference from the US government, even if the US government failed to exercise its power to arm. The Senate, according to Randolph, was for denying weapons to the states, so it hardly makes sense that the Second enabled the states. It enabled the militia -- the people, as it were, those citizens capable of bearing arms (citizens being white, male landholders of majority age and above).

The construction "provide for" is often misintepreted as "provide". It actually means "to make legal provision for". The Militia Act of 1792 made legal provision for each mitia member (all males, of service age, etc) to arm himself -- it became mandatory. The government did not arm them. When the War of 1812 broke out, the US Congress and Madison made legal provision for the states to arm the militia -- something they had made sure the states held temporarily as a contingent legal power, not as a power delegated from the Constitution.


Herodotus - 5/13/2003

which succeeded the old militias during World War I and remain active organizations throughout dozens of states? Since 9/11 they have been activated and deployed to guard key state locations. Since they cannot be called up to federal service like the National Guard, they are the true successors to the militia.

But maybe these guys don't know about such things.


Alec Lloyd - 5/12/2003

That still doesn’t make sense.

Their first proposition is that the use of the world “people” should not be construed to mean “militia.” According to the authors, when the Second Amendment says “people” it means the same population protected by the rest of the Constitution, i.e. First, Fourth, Fifth, Tenth, Fourteenth Amendments. This is at the first example. Thus “people” is separate from “militia.”

At least I assume that is what they mean. Otherwise, the authors would be stating that the “people” in the Second Amendment are a wholly new class of citizens, neither protected by the other Amendments, nor members of the militia. They would clearly be “a people” apart.

No, one must assume these Second Amendment “people” are the same people as in the other amendments.

Yet by the end, they assert that “the people” really DOES mean “the militia,” which clearly contradicts their initial statement. And not only does it mean a militia, but it means an organized and standing one.

This passage is key to making the transition:

“Rather, we take the position that the Second Amendment was to the founders a vitally important provision, expressing distrust of the professional standing army (which was the handmaiden of the European tyrants), and providing that, whatever was said in the body of the Constitution about the military arm of the new government, the people still relied on local units, comprising all eligible citizens, trained and regulated, armed with their own weapons. And further, the Amendment served notice that no jealous organ of the central government should ever try to weaken the people's army by making laws depriving the eligible citizenry of their weapons.”

So far so good. So the Second Amendment is clearly about limiting central authority. Only local citizens could be trusted and they were to be armed with their own weapons.

“The implicit republican virtue of service, celebrated in this Amendment, was a precious remnant of a social ethic being fast supplanted by the elements of a liberal democracy. But the provision of the Second Amendment was not a post-enlightenment credo in disguise. It did not glorify personal access to arms, nor the right of the people to keep arms to protect themselves against the government.”

Wait a minute. We have a huge contradiction here.

If the amendment’s purpose was to ward off the central government from ever trying to take away private weapons, how can the authors then blithely assert—in the same paragraph, no less—that the right wasn’t to protect the people against the central government?

If standing armies were so bad that local militias were needed in preference (and to check them), what possible use could they have but to lead a revolt against an oppressive and overbearing central authority?

What was the point of this militia? If it can’t defend itself, what is it defending against? And, given the ability of Congress to regulate it freely, why did it need a guarantee of access to _private_ armaments?

Can someone square this circle for me?

But there’s another problem.

After pointing out that the traditional militia framework no longer exists (something I dispute, but will not argue here), the authors go on to state that they do not wholly oppose the amendment’s outright repeal:

“It is conceivable that circumstances might arise in the future where a militia meeting the 18th century description might arise, and the Second Amendment would once again forbid any effort by the federal government to disarm them. But, as things stand, there is no such military force and, accordingly, the Second Amendment sleeps.”

This then begs the question: how does one “awaken” a right that has already been stripped away? If the central government disarms the potential militia, so that they may not have their own weapons, how are they to act if needed to check that authority should it exceed the bounds of its authority?

Surrendering the right in the present much logically result in it also being gone in the future. One cannot “retroactively” rearm the “people’s army” once it has been disarmed.

There are obviously other points to I could in contention of this interpretation, but I am still struggling to follow the authors’ logic.


Richard Henry Morgan - 5/12/2003

I find it interesting, but hardly surprising, that there is no mention of the Miller decision and the current federal codes. The Miller decision (from 1939) said:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

A the current federal codes (Title X, Chapter 13, Section 311) say:

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.

Where is the militia? Right under your noses, in the federal codes.

The two professors have managed to gin up their contribution to the now infamous Chicago-Kent collectivist jamboree of scholars (scholars with no recognized background in Second Amendment competence), into a book published by Duke University Press -- the press that gave the world Social Text, brilliantly sent-up by Alan Sokal. Thanks for the chuckles.




Derek Catsam - 5/12/2003

Doesn't seem at all opaque to me. The two paragraphs Mr. Lloyd cites are not mutually exclusive; they re-enforce one another. In the first paragraph they say that the militia and the people are not the same thing, and that the amendment intentionally provides the right to bear arms to militias. In the second they say that were there a need for a standing militia, the second amendment would still be germane, since there is not, and since the terms "militia" and "people" are not the same thing, "the second amendment sleeps." One can argue with what they say, but a careful reader should have no difficulty discerning what they say.


Alec Lloyd - 5/12/2003

What a wonderful article about nothing. It uses big words, but goes nowhere. How is one to square this statement at the beginning:

“We do not, for example, argue that, since the militia of the 18th Century were composed of the people, the two words are synonymous and interchangeable so that the Second Amendment can be read as though it said that the Militia being important to a free state, the right of the militia to keep and bear arms shall not be infringed.”

With this statement at the end:

“It is conceivable that circumstances might arise in the future where a militia meeting the 18th century description might arise, and the Second Amendment would once again forbid any effort by the federal government to disarm them. But, as things stand, there is no such military force and, accordingly, the Second Amendment sleeps.”

Color me confused. The authors say the Second Amendment doesn’t apply to militia, and then pronounce that it does.

I must be missing something, but I will defer to the local experts for a more thorough examination of the issue (and this truly opaque piece).

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