Two weeks ago, we looked at the Second Amendment and determined that it prohibited any federal infringement on the right to keep and bear arms, and that the prohibition even includes restrictions imposed while exercising legitimate federal power.
This week we will look at the connection between the militia and the Second Amendment.
“A well regulated Militia, being necessary to the security of a free State…”
Many modern legal scholars and political pundits claim that the opening clause of the Second Amendment limits the right to keep and bear arms to those serving in the militia – or the National Guard as we call it today. But rules of construction don’t support this reading. The opening clause serves as a sort of introduction, telling us the “why” behind the “what.” It provides context for the amendment, but it does not define its scope. The second clause of the amendment defines whom the protection from infringement applies to – “the right of the people…”
All of them, not just a select few.
The right to keep and bear arms flows from an even deeper philosophical spring – the natural right of self-defense. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right back to Blackstone and English common law.
Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation. Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.
That said, the existence, preservation, and autonomy of the militia was intimately tied to the Second Amendment, and was the driving force behind its inclusion in the Bill of Rights. It was not only intended to preserve an individual right to keep and bear arms, but also to limit government power. It was understood that an armed populace would serve as a check against government encroachments on liberty.
A typical progressive argument to justify federal bans on certain types of weapons despite the Second Amendment goes something like this.
“Does anyone think the founders of our nation foresaw weapons like we have today? I think they’d expect us to make common-sense reforms.”
Actually, the founders weren’t dumb.
I’m pretty sure they realized more powerful weapons would come along. I have no doubt humans will develop even more effective ways of killing each other in the future. It seems likely people as smart as Thomas Jefferson, James Madison and George Washington at least imagined the possibility that more effective and deadly firearms would evolve with time.
But whether they did or didn’t forsee advanced weaponry misses the crucial point. The purpose of the Second Amendment wasn’t to ensure people could go hunting. It wasn’t even primarily meant to ensure people maintained the ability to defend their homes and families, although that was important. Fundamentally, the Second Amendment was included in the Bill of Rights to ensure the people would always have the means to match the firepower of a federal army. It was intended to ensure the people could resist tyrannical government with force in the last resort. The founding generation understood that an unarmed populace would open the door for the government to trample its liberties.
In simplest terms, the Second Amendment was meant to ensure the people could take on the government if necessary.
Consider the words of Noah Webster in An Examination into the Leading Principles of the Federal Constitution.
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.
During the ratification era, many feared the provision in Article 1 Sec. 8 delegating to the general government the power to “provide for organizing, arming, and disciplining, the Militia,” would allow it to disarm the militia, leaving the people of the states at the mercy of a national standing army. They viewed this as a direct threat to liberty itself.
The American colonists had firsthand experience with government attempts to strip away their means of self-defense. In fact, British efforts to disarm the American colonists led to the first shots of the American Revolution. The Red Coats marched on Concord with the explicit purpose of capturing or destroying guns and powder belonging to the colonial militias. During the Virginia ratifying convention, George Mason referred to British efforts to disarm the colonists as he argued for the need to protect the right to keep and bear arms.
Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.
The local militia was the check against government power.
Some will concede this point, but argue this only proves a select group of people – the militia (the National Guard) – gets to have access to weapons. They say this does not extend the right to keep and bear arms to individuals. This reveals a fundamental misunderstanding of the makeup of the militia. It wasn’t an exclusive body of military men. The militia was made up, as Mason said, of “the whole people.” The militia existed as a body distinct from the government. It could be called up by the government, but it maintained some level of independence. In fact, Mason expressed fear that without an explicit amendment protecting the right to keep and bear arms, the militia would be reduced to an extension of the federal government itself – not a body of people equipped to resist government tyranny.
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…
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.”
The discussions surrounding the right to keep and bear arms during the ratification debates make it clear the primary reason for an amendment specifically prohibiting the federal government from infringing on the right to keep and bear arms was to keep it from being able to control the state militias and effectively disarm the people. With this in mind, it logically follows that the founding generation intended for the people to have access to weapons capable of matching military firepower, and they would in no way be shocked at the idea of the general population owning so-called “assault weapons.”
In fact, that was the point. They wanted the populace to both to possess military equipment and to have the ability to use it. They wanted to ensure the people could resist the government – by force if necessary.
When you bring up this idea up today, a lot of people laugh it off, claiming a bunch of rednecks with AR-15s could never face down the U.S. military. Well, tell that to Afghani nomads and Vietnamese peasants.
Rob Natelson sums up the scope of the Second Amendment in The Original Constitution: What it Actually Said and Meant.
The Second Amendment served purposes besides buttressing the natural right of self-defense and the reserved power of armed resistance. By guaranteeing continuation of the state militias, it strengthened state power in the state-federal balance – even though state militias could be called into federal service. By protecting the militia, the amendment promoted citizen involvement in government military affairs, just as the jury system promoted citizen involvement in judicial affairs. Likewise, by protecting the militia, the Second Amendment reduced the need for federal standing armies.
One does not have to be an advocate of violent revolution to recognize the danger of allowing the government to have a monopoly on guns. It’s a matter of balancing power with power. The government will be far less likely to become tyrannical or oppressive when the people maintain the ability to resist. When you remove the option of self-defense, it tips the scales of power toward the government. That opens the door to tyranny.
Technology has certainly changed over the last 250 years. Human nature hasn’t. Government is still prone to abuse the people when it can get away with it. Power still corrupts. Absolute power still corrupts absolutely.