In the trainwreck thread started by haymarketmartyr about “Second Amendment Heroes” http://boards.straightdope.com/sdmb/showthread.php?t=539050 , the inevitable debate about the meaning of “militia” has arisen. In what is referred to by some as the “collectivist” interpretation of the Second Amendment, the argument goes that the Second Amendment is effectively a dead letter, that it refers to an institution no longer extant in American society. I believe that based on the text of the Constitution and its amendments, that this interpretation is flawed. That the Second is meant to protect a personal and individual right to “keep and bear” (own and carry) firearms. In this thread, I will explain my reasons for thinking so. Since I am hardly a legal expert or a student of constitutional law, I would welcome any honest criticism based either on facts or on established legal principles that I might be mistaken about. If you disagree, please try to post something that might be considered a logical argument beyond asserting that it is self-evident that I am wrong.
When the present Constitution was first adopted, replacing the older Articles of Confederation and enlarging the authority of the Federal government, several provisions of the new constitution established the broad principle that the Federal government was to have a monopoly on foreign relations; especially, that the Federal government alone would determine whether or not the States were conducting armed hostilities with a foreign power. To this end Article One of the Constitution lists the powers granted to the federal congress, and Section Ten of Article One details the sovereign powers that the state governments agreed to formally cede to the federal congress. The third clause of Section Ten reads:
So as hypothetical examples, it would be absolutely forbidden for the State of Texas to maintain an army with which it conducted drug or immigration raids across the Mexican border; or for the State of Florida to have its own naval policy with regards to Cuba; or for any of the northern states to invade or threaten Canada. The state governments agreed to cede not just the right, but the actual capacity, to independently prosecute a foreign war- there would be one national army and one national navy.
The first ten amendments to the Constitution, submitted and ratified as a body known as the “Bill of Rights”, came about because of fears that the new Constitution made the federal government too strong. Even though in principle the Federal government had no powers no explicity granted it, ratification of the Constitution became contingent on a statement of things that the federal government would be explicitly forbidden to do. Among these is the Second Amendment:
What seems signficant to me is this: if, under Article One Section Ten the states are forbidden from keeping troops in peacetime, then just what exactly is the Second Amendment promising, as either a check against federal power or as a guarantee of liberty? Specifically, if the Second Amendment talks about something called a “militia” in the context of keeping and bearing arms, then just what exactly is the difference between a “militia” and “troops”?
AFAIK, in every document contemporary with the Second Amendment that mentions the subject of the militia, such as the Federalist Papers #29, or the mention of the militia in the various state constitutions, the answer is clear and unambiguous: the militia is synonymous with the people, the mass of the populace, armed with their own privately-held weapons; the posse comitatus that in times of emergency can be called to the common defense. Many people are under the impression that the Second Amendment protects a state government’s authority to possess armed forces, while leaving open the possibility that private citizens can be completely disarmed. I submit that the original intent of the Second is exactly the opposite- that in the face of the fact that under Article One Section Ten the states could be forbidden from possessing any standing, professional armed force, that an armed citizenry was meant to be the guarantee of last resort.
“But that’s ridiculous!” someone shouts from the audience “you’re claiming that Congress could forbid cities and states from having police!” Actually, that speaks to my point. Civil police forces in fact are protected from Article One Section Ten by the Second Amendment, but only so long as they in fact are civil; that is, to the extent that modern state and municipal constabularies are simply a formalization of the older institution of the posse comitatus, where deputized citizens would aid in upholding the law. That even though modern police consist of persons who have elected to remain permanently sworn to public duty, that they are still not fundamentally distinct from any citizen in good standing who might hypothetically be charged with the duty of enforcing the law. But if laws are passed which ban the civil possession of firearms by the general public, but which carve out a special exception for police officers, the practical effect of that is to elevate the police to the status of an elite armed branch of the government, having a privilege not afforded the common citizen- troops in other words.
I also believe that there is further support for the interpretation of the militia that I have offered within the Constitution itself. If the word “militia” referred solely to a regimented body of militarily trained persons, organized and commanded by the state, then by what authority can the Federal government draft civilians into the army in time of war? That authority is universally held to derive from Article One Section Eight of the Constitution, which states that to execute the laws of the union, suppress insurrections and repel invasions, congress may call forth “the militia”. But if we were to adopt the collectivist interpretation of the Second Amendment and carry it to its ultimate logical conclusion, that conclusion would be that Article One Section Eight simply authorizes Congress to federalize such military units as the states happen to have on hand- NOT to conscript raw, untrained civilians into the Army. To maintain that the word “militia” means one thing in our Constitution when determining who may be in possession of a firearm, and means another thing when determining who may be summoned to federal military service, would reduce the Second Amendment to a travesty; the only meaning left to the Second would be “you have the right to be drafted, and have the Army issue you a service arm”.
Finally, the argument could be made that even if the militia is in fact synonymous with the people, that it would still be within a state’s authority to declare that it is only lawful to keep and bear arms while actively serving in either the militia or a posse comitatus- in modern parlance, while either serving in the military or as a sworn police officer. My response to that is that that raises the entire subject of incorporation- the application of the Bill of Rights to the states. As originally written, the Constitution simply presumes that democracy flows from the states, since that’s the level at which popular suffrage took place. Indeed, until the practice was banned by the Thirteenth Amendment, it was held to be within a state government’s purview to respect and uphold the institution of chattel slavery. But ever since the constitutional cataclysm of the Civil War, the courts have struggled to define the meaning and scope of the Fourteenth Amendment, offering a federal guarantee of liberty and equal rights to all US citizens. Whenever a constitutional question could be reduced in its essence to the question “can the states be tyrannies where the federal government cannot?”, the answer in modern times has increasingly been “no”. The Second Amendment says little but implies much. The naked letter of the Second is simply that the Federal government cannot disarm the citizenry. But if like the other provisions of the Bill of Rights, the Second is taken to be instructive as to the definition of liberty given in the Fourteenth Amendment, then the import of the Second is clear: that any government which would forbid its citizens from possessing weapons, which would mandate that the populace has to remain helpless against and dependent upon the arms of the state, is a tyranny.
Article One of the Constitution of the United States of America. See Section Eight, clauses fifteen and sixteen for congressional authority over the militia; see Section Ten, clause three for prohibition on state armies and navies.
The Federalist #29, subtitled “Concerning the Militia” by Alexander Hamilton.