Saturday, January 5, 2019

Anti-rights mythology of the "well regulated militia"

The first argument against a citation of the 2nd Amendment seems to always be a curt, cherry picked quotation: "well regulated militia". The implication is that if you aren't in a designated organization that trains and drills, then the 2nd Amendment does not apply to you.

Lets break this down in two parts - "well regulated" and "militia". The use of "well regulated" was used frequently during this time period, and is perfectly explained by Brian T. Halonen:


The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:
1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
1714: "The practice of all well-regulated courts of justice in the world."
1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.
The key point being, "well regulated" was directed at assuring functionality, and not instruction to enforce strict limitations.
As for "militia", at no point do these individuals question what a militia was to those living in the 1790's or early 1800's, but instead ignorantly cling to an assumption of it either being the National Guard or other government structured entity.

This is the historic context of militias in early America: A militia was not a well-trained, government controlled army. It’s a body, that if needed, can be called forth on the peoples terms – and not always of a specific list. In many cases, simply the assumption of being able-bodied met the obligation to answer the call. Only the strictest forms involved conscription, and even those cases involved bearing a personally owned firearm rather than something that was issued. Militias were also led by one of their own whom they personally selected rather than being anointed by officials. This is one of the purist forms of self-determination from government, and why the 2A was one of the most strongly phrased with “shall not be infringed”.

Interestingly, the Pennsylvania constitution from the same time period doesn't contain any militia phrasing. From Article IX Section 21:

That the general, great and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE,

(snip 20 sections)

Section 21. That the right of the citizens to bear arms in defence of themselves and the state shall not be questioned.


Those that still cling to the myth that the right to bear arms applies only to those serving in a militia often ignore the definition in the Militia Act of 1903. Given this definition, if I were to concede that the 2nd amendment refers to a collective right (I do not), men between the ages of 17 and 45 would still have a right to bear arms without infringement. See the relevant text in the US code here:

(a) 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.

I suspect collectivist clingers will make up reasons this doesn't matter. In any case, it's not relevant to understanding the intention of the amendment, since the founders established no such age limitation.

Richard Henry Lee refuted the notion that the militia referred to a select corp, now known as the National Guard:

But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expense, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenseless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all pro-miscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
                                   -R. Lee, Additional Letters from the Federal Farmer 53 (1788)

He reiterated this stance again:
No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defence of the state. . . . Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.        
                                     -State Gazette
(Charleston) (8 September 1788)

If you want further proof of intent behind the 2nd Amendment then refer to the Federalist Papers, which were written and distributed by the Founding Fathers in order to justify and convince the original member states to ratify the Constitution. In “Federalist No 46”, Monroe contrasts our newly formed nation to Europe, where the people are not trusted with arms and therefore would be unable to shake off the yokes of tyranny if imposed. He wrote this after having just risked everything in a war against an oppressive ruler. The first shots of this war, by the way, were fired when British troops marched towards Lexington and Concord to confiscate firearms.

Samuel Adams also clearly stated that the constitution is not intended to prevent citizens from keeping their own arms:

“And that the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms…”                                                   
“Debates and Proceedings in the Convention of the Commonwealth of Massachusetts,” pp. 86-87 (Peirce & Hale, eds., Boston, 1850)

I could go on like this for an entire book. It is trivial for anyone willing to spend a little time researching the topic to determine that the founders intended that every man be armed on their own volition.

The Supreme Court relied on these same primary sources and many more in the Heller (2008) opinion when it held that:
(starts on page 570)
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it con­notes an individual right to keep and bear arms. Pp. 576–595.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 595–600.

Note the page citations lead to the details within the linked document that support the court's conclusion.

At this point it should be clear that it is at best ignorant and at worst propaganda to peddle the idea that the constitution only protects a collective right to bear arms.

No comments:

Post a Comment