Militia (n.): a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
People debating gun rights like to cite the Second Amendment as though it were the most clear-cut statement of principle ever composed. I just shake my head.
When it comes to structure, composition and wording, it’s anything but clear.
Don’t believe me? Just ask the Supreme Courts. Yes, courts. Plural.
In the United States v. Miller, the 1939 version of the high court ruled that the amendment protects arms that had a “reasonable relationship to the preservation of a well regulated militia.”
But the 2008 version of the court thought differently, ruling in District of Columbia v. Heller that the amendment “protects an individual right to possess a firearm unconnected with service in a militia.”
So who’s right?
It might be a good idea to start by looking at the amendment, which isn’t lengthy. It reads: “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.”
The founders could have made everything a whole lot easier had they omitted the introductory clause and just said, point-blank (pun intended), “the right of the people to keep and bear arms shall not be infringed.”
The problem with this approach, however, is that the founders put a great deal of thought into drafting the amendment. In fact, they went through several versions of it, one of which included an exemption that “no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”
The framers went through several drafts before reaching the final version, so one has to believe they had a pretty good reason for including the reference to a militia.
There’s another reason to pay close attention to this language: The introductory clause offers a rare glimpse into why a particular amendment was included. No other amendment in the Bill of Rights provides this kind of insight. So why not take advantage of the opportunity and try to sort out what’s commonly referred to as “the intent of the framers”?
The first word of the clause, “a,” provides the first clue concerning this intent. It’s clear the framers were referring to a single militia, not a number of different state or independently operated armed groups. The next two words are equally informative: This wasn’t to be some rag-tag group of vigilantes, but a “well regulated” militia — which raises the question of who would do the regulating.
We can safely eliminate vigilante mobs as being, by their very nature, not well regulated. And we can eliminate the states acting independently, because the document doesn’t deal with militias (plural), but with “a” militia.
It’s clear from this language that the body envisioned was to be singular, representing the entire nation. If there was any doubt, the framers’ intention was confirmed by something that happened less than five months after the Bill of Rights was ratified: On May 8, 1792, Congress passed an act “to provide for the National Defence, by establishing an Uniform Militia throughout the United States.”
There’s your well-regulated militia. Please note the words “national” and “uniform.”
Many of the founders were wary of establishing a standing army, for fear that it would be subject to abuse by the executive branch. In the words of James Madison, “A standing military force, with an overgrown Executive, will not long be safe companions of liberty.” So they opted for a militia instead — a group of citizens who could be called upon to fight at a moment’s notice because they already had their own weapons.
Despite these misgivings, however, the militia system of national defense was eventually replaced by just the sort of standing army the framers had warned against.
If we’re talking about “intent of the framers,” this should never have occurred. But few people go around calling the U.S. armed forces unconstitutional. They’re a reality. And because of this reality, a well-regulated militia is, in fact, no longer necessary to the security of a free state.
Nowadays, the armed forces do that job.
The simple fact is that the explicit constitutional reason behind the Second Amendment no longer applies, and it hasn’t for three-quarters of a century.
As a result, we’re left with a couple of choices: 1) invalidate the entire Second Amendment as an anachronism, or 2) come up with a different reason to preserve “the right of the people to keep and bear arms.”
The Supreme Court, in its 2008 ruling, put forth one possible rationale: the right to “self-defense within the home.”
There are two problems with this. First, the right to self-defense does not necessarily suggest a right to bear arms. Second, this right, while deeply rooted in common law, is mentioned nowhere in the text of the Second Amendment.
Others react to the reality of a standing army differently. They argue that the very existence of such an army is, in fact, the best reason to bear arms: as a safeguard against militarybacked government tyranny.
It’s clear that Madison and others among the founders were, indeed, wary of concentrating power in the hands of an elite. That’s the whole reason they adopted a constitutional system that separated powers among three branches of government and further dispersed them to the federal, state and local levels. But it’s equally clear that they expected this separation of powers — not some rogue militiamen armed with rifles and bayonets — to keep the country from devolving into tyranny.
In fact, it’s hard to imagine that the founders, whatever their reservations, wanted to encourage armed insurrection against the fledgling federal government by one or more freelance militias. In fact, there’s hard evidence that the opposite is true. The very first use of the national militia system that grew out of the Second Amendment involved putting down an insurrection by just such a group of rebellious farmers who were refusing to pay their taxes.
Yes, this occurred when George Washington was president and a lot of the people who fought a revolution over (in part) taxation were still alive.
If interpreting the Second Amendment seems messy, it is. The Constitution is a human document produced in the context of human events, but that’s precisely what makes it relevant. Sometimes, communication isn’t as simple as we’d like them to be — even when it comes to our founding principles.
But you don’t have to take my word for it. Just ask the Supreme Courts.
Steve Provost is a Tribune copy editor.