The Militia Dilemma

A new Rassmussen poll shows that 65% of adult Americans “recognize their right to own a gun was intended to ensure their freedom,” 17% disagree and 18% haven’t a clue. While honest polling gives us a glimpse of where America stands, what a majority of Americans think about any provision in the U.S. Constitution can do nothing more than prompt Congress to try amend it through the two processes provided for doing so in the Constitution itself. The Constitution, under the Second Amendment, guarantees our right to protect our individual selves. Not so, you say? The word “militia” does not include my individual self? Perhaps you believe the ‘militia’ is the U.S. National Guard? Here’s my discussion. Feel free to leave yours in comments.

American Militias Sworn to Protect the U.S. Constitution

American Militias Sworn to Protect the U.S. Constitution


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.

Federalist Papers, No. 28, Alexander Hamilton, page 206 in my paperback edition published by Penguin:

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpation’s of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State…

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?…

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.

Reading Hamilton reminds us that it is our duty to arm ourselves and…get to the target range as often as possible.

Disarming the People, Judge Andrew Napolitano, Constitutional Chaos, page 501 in my hardback edition:

While a disarmed population doesn’t necessarily lead to a genocidal government, not a single incident of genocide in the twentieth century was inflicted on an armed population…a defenseless citizenry is easy to exterminate…

However improbable [genocide] these contingencies may seem today, ” Judge Kozinski wrote, “the Second Amendment is a doomsday provision.” Certainly nobody culd have predicted the slaughter of six million individuals during the Holocaust. Who knows what is next?

Federalist Papers, No. 46, James Madison, page 297 in my paperback edition published by Penguin:

The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purpose. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone…and that it will not depend merely on the comparative ambition or address of the different government whether either, or which of them will be able to enlarge its sphere of jurisdiction at the expense of the other…

Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

Individual Right (Original Intent and Purpose of the Second Amendment):

In his popular edition of Blackstone’s Commentaries on the Laws of England (1803)St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

“The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.”

In the appendix to the Commentaries, Tucker elaborates further:

“This may be considered as the true palladium of liberty… The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.”

Not only are Tucker’s remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense.

“Because ‘[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,’ the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era.” (Source: The Second Amendment in the Nineteenth Century)

Justice Story, appointed to the U.S. Supreme Court by James Madison:

“The next amendment is: “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.”

“The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.Source

● The National Guard was federalized and made a part of the U.S. Army according to the Militia Act of 1903. It is no longer a ‘militia of the people,’ and solely controlled by the various states.

● The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.– Report of the Subcommittee On The Constitution of the Committee On The Judiciary, United States Senate, 97th Congress, second session  (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5 – Source

● If you believe “the people” are the ‘collective,’ rather than the ‘individual,’ “the people” as individuals are mentioned in the Preamble to the Constitution, the First Amendment, the Fourth Amendment, and the Ninth Amendment. “The people” are also mentioned in Article I, Section 2 and the Seventeenth Amendment as the individual citizens of the states (voters), and the Tenth Amendment as the “states respectively, or to the people.”

● About the words “well regulated” and their meaning and intent in the time of the Founders:

…the term “well-regulated” meant something quite different two centuries ago. It is not today’s definition of “controlled,” “limited,” or “restricted” but was instead defined as “having proper kit and provisions” or in the case of objects or machinery, “properly maintained and kept in good repair.” Source: read the discussion at Lew Rockwell

● “The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so. Indeed I would go so far as to say that the underdog is a sine qua non for the overthrow of any sovereignty. So let’s not have any native militia or police. German troops alone will bear the sole responsibility for the maintenance of law and order.”
~ Adolf Hitler, April 11, 1942, in “Hitler’s Table-Talk at the Führer’s Headquarters 1941—1942,” Dr. Henry Picker, ed. (Athenaeum Verlag, Bonn, 1951)

The process to amend the U.S. Constitution:

ARTICLE 5 – AMENDMENT: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Source

To summarize the two methods:

1) two-thirds of the U.S. House and two-thirds of the U.S. Senate must agree that proposed legislation to change an Amendment should be considered, or…

2) two-thirds of all the State Houses and Senates must vote to call for a Constitutional Convention, where changes or new Amendments will be proposed. If that happens, three-fourths of all U.S. States must ratify the proposed changes or additions.

No. 2 above, the Constitutional Convention, has never been used.

More detail:

The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.

Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention.Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority. Source

Many states have militias written into their state laws, including my state of Oklahoma:

Oklahoma Code §4441.
Composition of Militia Classes.

The Militia of the State of Oklahoma shall consist of all ablebodied citizens of the United States and all other ablebodied persons who shall be or shall have declared their intentions to become citizens of the United States, who shall be more than seventeen (17) years of age and not more than seventy (70) years of age, and said militia shall be divided into three (3) classes: The National Guard, the Oklahoma State Guard, and the Unorganized Militia.

The Oklahoma Code is almost identical to the 10USCS (Armed Forces) Code (Chapters 13), and is subject to 10USC332, (Chapter 15)which states that the “Unorganized Militia,” mentioned above can be federalized to support Federal Law over State Law. Take a look at 10USC333 as well. Unorganized state militias can be federalized (and called up to action) if the President decides to do so. That’s an interesting thought, isn’t it? Perhaps you are a member of a milita and didn’t know it. I want private citizens like this one in my militia.

  • I am no grammarian, but my reading of the commas in the Second Amendment nean that this amendment id protecting two things from infringement by the federal government. In othere words, it could have been written as follows without chamging its meaning:

    The right of the states to a well regulated Militia, being necessary to the security of a free State, shall not be infringed; nor shall the right of the people to keep and bear Arms be infringed.

  • Arizona has the same militia statute as Oklahoma, it appears, and the same subjectivity to the President. I’ve wondered how such a group would become organized (other than the President and the occasional idiot). I guess the governor, Jan Brewer.

    • Velcro, I think if Brewer has any authority over the “unorganized militia,” that means it can be natioanlized. I don’t think there’s a way out. The hope would be that those who have been preparing for this can tend to business before the axe falls. I really don’t know. It was very confusing.