The People, the Militia and the Second Amendment

With the gun control debate back on the front-burner, a 2016 MarketWatch article asserting that. “The Second Amendment doesn’t give you the right to own a gun” is making the rounds across social media. The article perpetuates a fundamental misunderstanding of the Bill of Rights and demonstrates the danger of basing your constitutional expertise on one Federalist Paper.

Columnist Brett Arends wrote the article. His bio describes him as “an award-winning financial columnist with many years experience writing about markets, economics and personal finance.”

He should have stuck to markets, economics and finance. His attempt to play constitutional expert gets an F.

Arends actually gets one thing right. He correctly asserts that the Second Amendment doesn’t give anybody the right to own a gun. Absolutely true, but not for the reason he imagines.

In fact, the Bill of Rights doesn’t give anybody any rights at all. It prohibits the federal government from interfering with rights each individual already has. They should have called the first 10 amendments the “Bill of Restrictions.” It would have eliminated a lot of confusion.

In the case of the Second Amendment, it prohibits the federal government from infringing on the right to keep and bear arms. The language of the amendment assumes “the people” – all of them – already have the right possess firearms. The amendment simply prohibits the federal government from interfering with it.

No exceptions. No excuses.

But Arends asserts the Second Amendment doesn’t “give you” the right to keep and bear arms unless you serve in the militia – or the National Guard.

“It specifically says that right exists in order to maintain ‘a well-regulated militia.’ Even the late conservative Supreme Court Associate Justice Antonin Scalia admitted those words weren’t in there by accident. Oh, and the Constitution doesn’t just say a ‘militia.’ It says a ‘well-regulated’ militia.”

Arends builds his argument on Federalist #29, penned by Alexander Hamilton. This strikes me as an odd basis for an argument about the Second Amendment given it was written 17 months before the Second Amendment was even proposed.

Arends asserts that Hamilton’s musings in Federalist #29 tell us exactly what the founding generation meant by a “well-regulated militia” and “why the Founding Fathers thought we needed one, and why they wanted to protect it from being disarmed by the federal government.” This, he claims, reveals the true meaning of the Second Amendment. It was intended to protect the National Guard.

In fact, the essay doesn’t tell us anything about what the “founding fathers” thought about the militia. It tells us what Alexander Hamilton thought about it. And although he was an influential figure in the founding generation, his views hardly represented any kind of consensus.

Arends cobbles together phrases cherrypicked from various sections of the essay to paint a picture of the militia.

A “well-regulated militia” didn’t mean guys who read Soldier of Fortune magazine running around in the woods with AK-47s and warpaint on their faces. It basically meant what today we call the National Guard. It should be a properly constituted, ordered and drilled (“well-regulated”) military force, organized state by state, explained Hamilton. Each state militia should be a “select corps,” “well-trained” and able to perform all the “operations of an army.” The militia needed “uniformity in … organization and discipline,” wrote Hamilton, so that it could operate like a proper army “in camp and field,” and so that it could gain the “essential … degree of proficiency in military functions.” And although it was organized state by state, it needed to be under the explicit control of the national government. The “well-regulated militia” was under the command of the president. It was “the military arm” of the government.

But Arends strips Hamilton’s words from their context to build his argument. Hamilton wasn’t describing the militia as it was but as he would like it to be. In practice, the militia was not a “select corps” nor a specialized military force. It was made up of every able-bodied man, as George Mason explained during the Virginia ratifying convention.

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation?  I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor… [Emphasis added]

The author of Letters from a Federal Farmer echoed Mason’s argument.

“[W]hereas, 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 promiscuously 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.”

In Federalist #29, Hamilton was addressing the arguments of people like Mason and A Federal Farmer who believed the Constitution would allow the general government to turn the militia into the “select corps” Ardens describes. Hamilton did not find this problematic. In fact, he thought it would be ideal, and he was trying to sell this idea to the public. Hamilton made this clear in the body of the essay.

“But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse.”

Hamiton then goes on to argue for his vision of a select militia that Ardens parrots. But this was far from a majority view, even among supporters of ratification.

In An Examination into the Leading Principles of the Federal Constitution, Noah Webster took a completely different tack in defending the Constitution than Hamilton. He insisted that the fact the whole body of people was armed created a bulwark against tyranny the proposed general government may

The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. [Emphasis added]

The fear was that the militia clause in the Constitution would give the general government the power to fundamentally change the nature of the militia and even disarm the people. This is exactly why the Second Amendment was proposed. It wasn’t to ensure Hamilton’s vision would come to pass. It was to prevent it. It was to preserve the existing militia system, which depended on “the whole people” maintaining the ability to arm themselves.

Many of the state ratifying conventions insisted on amendments, including a provision to protect the right to keep and bear arms, as a condition of ratification. This was precisely because they did not embrace Hamilton’s vision for the militia and rejected his assurances that it was the best path forward. They wanted to ensure the militia would remain the “whole body of people.” This is why the Second Amendment declares “the right of the people to keep and bear Arms, shall not be infringed.”

Not some people. Not select people who join the “National Guard.” All of the people. Because essentially all of the people were understood to make up the militia.

So Arends is right that maintaining the integrity of the militia was a key reason for the Second Amendment. But he goes off the rails because he doesn’t understand the true nature of the militia. He misses the direct connection between the militia and “the people.”

 

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