American Revolutionary War musket loading

Once again we find ourselves in the midst of a tragedy carried out by use of firearms. The true shame of this horror is that it surprised no one, except those in the crosshairs. For most Americans it now seems inevitable that there will be other such massacres. We as a nation have to reconsider the insanity that can be unleashed by one person or a small group, when armed with modern weaponry. That conversation must begin with a proper understanding of The Second Amendment: “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”

In order to understand what the intent of “A well regulated militia” is, let us look into other sections of the Constitution itself:

Article 1, Section 8: Clause 15: To provide for calling forth the Militia to execute the Laws of the Union,... suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part 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;

Article 2, Section 2, Clause 1: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the MILITIA of the several States, when called into the actual Service of the United States;"

Now read what the Founders thought:

"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."

Alexander Hamilton

"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."

James Madison

Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the militia. Those of every county are formed into companies, and these again into one or more battalions, according to the numbers in the county. They are commanded by colonels, and other subordinate officers, as in the regular service. In every county is a county-lieutenant, who commands the whole militia of his county, but ranks only as a colonel in the field. We have no general officers always existing. These are appointed occasionally, when an invasion or insurrection happens, and their commission determines with the occasion. The governor is head of the military, as well as civil power. The law requires every militia-man to provide himself with the arms usual in the regular service.

Thomas Jefferson

The Articles of Confederation were the precursor to the U.S. Constitution and the meaning of “militia” was just as clear:

VI. No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

It is true that quotes can be found to support both sides. This is due to the fact that it was a contentious argument, not only during the First Constitutional Convention, but long before, starting in England hundreds of years prior. The struggle between the Federalists and Antifederalists required all sorts of compromises and each side was eloquent in their arguments. To add to the confusion, many of the individuals changed their opinions, some more than once, so contradictory statements can be found from the same source, albeit at different times.

Once the dust settled we were left with a document that stands as THE contract between the American people and their government. In most standard legal contracts there is a clause that usually goes something like this: “This agreement constitutes the entire agreement and supersedes any written or oral representations, statements, understandings or agreements.”

Therefore, what was argued prior to the signing of a contract is declared null and void and all that matters is what is actually in the contract. Based on that logic, the only mentions of a “right to bear arms” actually in the Constitution are always referenced in conjunction with “a well regulated militia”.

The federal Militia Act of 1792 defined who could enroll in the militia, supply demands, organization, officer quotas, who was exempt from militia service and the powers the president had over the militia as commander-in-chief.

The National Guard itself sure as hell understands what “militia” means:

The first militia was in Massachusetts Bay Colony in 1630, the date the National Guard considers their origin. The primary reason was defense from “Indian” attack. This continued to be a primary reason for hundreds of years and explains why there was such a well-developed infrastructure when the “French and Indian war” broke out. That in turn was a dress rehearsal for the Revolution. In the South many of the militias were known as “slave patrols” whose purpose was to capture runaways and defend against uprisings.

I don’t think The Second Amendment needs to repealed, just accuratley understood. The problem is that those tasked with “understanding” are the Supreme Court and their recent interpretations have only worked to further the NRA agenda.

But there have been saner heads on the Supreme Court;

"A fraud on the American public." That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.”

Justice Ruth Ginsburg on the Second Amendment:

"The Second Amendment has a preamble about the need for a militia...Historically, the new government had no money to pay for an army, so they relied on the state militias. And the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."

But, Justice Ginsburg explains, "When we no longer need people to keep muskets in their home, then the Second Amendment has no function, its function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own. So I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So...the Second Amendment is outdated in the sense that its function has become obsolete."

As for the Heller case, decided by the Court in 2008, Justice Ginsburg says, "If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation."

All arguments that involve hunting, target shooting, comparison to automobiles or anything else are specious. There is no doubt what the 2nd Amendment is about and that is militias. The problem arises from the way it was seen back then as being made of every able bodied man.

So if there is to be a legitimate debate about guns, there are really ONLY two legitimate sides:

  1. The position that because it was intended to ensure a continuing militia (A well regulated militia being necessary to the security of a free state...) the modern equivalent (National Guard) is sufficient to be in compliance
  2. The literal (albeit ignoring both sentence structure and the first part of the sentence) take, that puts the emphasis on the second part of the sentence (the right of the people to keep and bear arms, shall not be infringed)

It seems obvious that “the people” is a plural and means ALL of us and includes things done in concert, so the National Guard works just fine. I understand the other interpretation too and can see the point. But we should definitely focus on the REAL argument and stop all the baloney as it just obfuscates things.

militia

This is not, nor should we allow it to be framed as “either we abolish all gun ownership OR we have absolutely no regulations, restrictions or laws regarding guns”. Both of those positions are unrealistic, unenforceable and unnecessary.

What the conversation should be about is what steps can we take to make guns themselves safer (yes it can be done, just ask anyone who owns an old piece manufactured before the “safety” was invented), steps that can keep guns out of the hands of the criminal and mentally unstable, and steps to ensure that only ‘reasonable’ (I realize that word will require definition) arms, ammunition and accessories are allowed in the populace.

I own a gun and there is nothing in the Constitution that says I can NOT own one, therefore, I can. That also leaves open the government’s ability to regulate and limit them to what “the people” consider reasonable.

But that has nothing to do with what the 2nd Amendment is about, which is strictly and solely confined to militias as made obvious by all the other references to militias.

Originally published as a Note in 2012 (edited to include comments in the original string)

Jose Rosa

Jose Rosa

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