The Second Amendment and the meaning of Militia

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.

Never in history have 27 words sparked so much debate and controversy.  What is the true meaning of these words?  What did the framers have in mind when they made this the 2nd amendment of the constitution?  While all will agree that the basis of this amendment is to provide the right for American people to keep and bear arms, the phrase "well regulated militia" has put into play the question of exactly "which" Americans should have that right.

Personally, I am a strict Constitutionalist.  I believe that our Founding Fathers were men far beyond their time when it came to the establishment of history's most successful and free government, therefore, we should strictly adhere to their words with little to no interpretation.  However, I also realize that none of the Founding Fathers are alive today to tell of their intent, so some interpretation must be made.

Gun control advocates surmise that the words "well regulated militia" intends to limit gun rights to only those that are actively participate in state militia's, meaning military groups raised and controlled by the states.  Gun control opponents however, contend that the phrase is meant in a general sense, applying to all "able bodied people".

To fully understand, I think we have to look at the timing and purpose of two of this country's most important documents: The US Constitution and the Bill of Rights.  The US Constitution was adopted on September 17, 1787, and laid the foundation for the legal authority for the existence of the United States of America, as well as, establishing the framework defining the relationship between the federal government, the states, and it's citizens.  The Bill of Rights, or the first 10 amendments, was proposed by James Madison and went into effect four years later on December 15, 1791, as an answer to state concerns that threatened the ratification of the US Constitution due to a belief that the Constitution failed to safe guard the basic principals of human liberty.

That being said, the 2nd amendment was meant to amend the constitution so as to protect a liberty sought after by the states.  The exact provision(s) of the constitution that were to be amended were as follows:

The powers of Congress:

To provide for the calling forth the milita to execute the Laws of the Union, suppress Insurrection and repel Invasions

                                                                    Article 1, Section 8, Clause 15

To provide for the 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, according to the discipline prescribed by Congress;

                                                                       Article 1, Section 8, Clause 16

The powers of the President:

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

                                                                           Article 2, Section 2, Clause 1

So what about these provisions so offended the states that an amendment was needed to allow for ratification?  Well, we have to look at history to fully understand.  We, as a Country, were just coming out of the Revolutionary war.  The term "militia" during this time, meant the same as it did within the text of the constitution, which was a group of trained citizen soldiers under the control of the government (king), to be used in times when a standing army was not present.  If you read the words of the constitution, the founders had the same meaning here.  In addition, we must remember that Cornwallis used the meaning to disarm the citizens, by stating that a militia was not necessary as the British Army was present for the defense of the states.  Had American citizens relinquished their arms as mandated by Cornwallis and not fought, the Revolutionary war may have ended very differently.  The states were very aware of this fact and wished to prevent a second coming of this denial of liberty.  It was a belief that armed citizens WERE the method by which to regulate a specialized militia.

Take for example, our current National Guard.  Many gun control advocates point to this as the example of the "well regulated militia" that the founders had in mind when drafting the amendment.  However, we must remember that the National Guard is an arm of the Federal Government which may be utilized by states when needed.  The National Guard is under the control and influence of the Federal Government, as prescribed by the above listed articles of the Constitution.  How can a people be expected to use the militia as a method of defense against a tyrannical government if that militia is within the power of the Government?  It cannot, which was the purpose of the 2nd amendment to these provisions! 

You must also look at the wording of "the right of the people" shall not be infringed.  Through out the constitution, the usage of "The People" was meant to convey a general understanding of all citizens of the United States.  The preamble begins with "We the People", and surely no one believes that the founders were only speaking for a specific group of citizenship, but instead were referencing all.  In fact, most of all amendments of the bill of rights use this verbiage to make general reference to all citizens.  Why would anyone try to interpret this phrase differently in the 2nd amendment, than they would in the 1st, which guarantees freedom of speech as a "right of the people".  In the context of the 2nd amendment, the phrase was meant to convey a right to all citizens as a condition of "general militia" composed of all able bodied people to defend their liberty.

This idea of "general militia" was tried and proven in our courts of law under the 1990 Supreme court case of Perpich vs Department of Defense.  Within this case, Minnesota Governor Rudy Perpich sued the DOD claiming that it was unconstitutional for the DOD to order the Minnesota National Guard to perform duties outside the state without the Governor's consent.  The Supreme Court ruled against Gov. Perpich by defining a difference between "special militia" as in the case of the National Guard, and "general militia" which they defined as "private citizens with privately procured and owned arms".  So, if we have precedent defining a general militia, how could the 2nd amendment be considered meaning anything but?

Lastly, there is the argument that "well regulated militia" was meant to mean that the groups of citizens must be "well trained and willing" to perform the duties of the militia.  That without this, private citizens could not be considered within the scope of protection.  However, you could liken service in the militia to that of Jury duty.  Jury duty is considered a condition of citizenship.   No one could claim that most jurists are "well trained", nor that many are willing.  However, when called, it is a duty of being a citizen to perform.  Likewise, the duties of a general militia are the same.  While we have an army (like we have lawyers) to protect us, should a time come when we must be protected against the army, or outside enemies, that the call to militia would be made.  In addition, within jury duty, it is made up of common citizens with certain parties being exempt, such as Police Officers, Jailers, Lawyers, Judges, etc.  The reason for the exclusion is that they are too close to the process and likely to be swayed.  Again, a comparison could be made to the militia.  The militia must be composed of common citizens who are not under the influence of the government (Army, National Guard) that could be attempting to derive us of our liberties.  One cannot expect an arm of the government to be used to protect us from said government.  This would be within the calling and realm of a generalized militia made up of people of the community.

After all of this, we need only look at the quotes of the framers and influential individuals of the time to see their true intent:

What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

                       Rep Elbridge Gerry (Mass.), Annuals of Congress (1789)

"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights...

                       Alexander Hamilton, Federalist Paper 46

To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.

                       Richard Henry Lee, Initiator of the Dec. of Independence

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...

                       Samuel Adams, Debates in Convention of Commonwealth

The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

                       Thomas Jefferson

Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms

                        James Madison, Federalist Papers

The right to arms is absolute and guaranteed.  You need only look at the words of the founders of our country  to see their intent and purpose.  The last measure of protection against an overbearing government is born by the rights of the citizens to bear arms.  Should our armies fail, the armed citizenship is the only hope for self preservation.  We must value and protect these rights as there may come a day in which this basic right becomes the difference between existence and extinction.

Lastly, we as citizens, must stand to ensure that this right is left preserved wholly and completely.  Gun control in any form is an attack upon our freedom.  Many will say that gun rights are plausible, but that a limitation of type of arms should be enforced.   Make no mistake that this reasoning is also an attack and lessening of the power.  To allow a limitation of arms, is in essence, the disarming of the people.  Do I believe that common man should be allowed the use of "military" type weaponry?  Yes I do!  If we allowed the government to limit the type of arms available, then we are left defenseless against all attack.  Should congress state that the allowance of a sling shot constitutes a right to arms, but limits our ability to maintain auto/semi automatic rifles, then what chance do the citizens have against a standing army, either domestic or foreign?  We, as citizens, must take the stance to prevent this erosion of our liberty.  To stand by and not fight delivers us to the yoke of oppression of which we will have no recourse.  It is my opinion that the Framers made this amendment second only to the right to free speech for a specific reason.  They did so because of the sheer importance it has to perseverance of free men.


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