Tuesday, December 18, 2012

On a Well-Regulated Militia

In the District of Columbia v. Heller Supreme Court decision, Justice Scalia engaged in some rather elaborate contortions to make the case that the phrase “well-regulated militia” can be completely ignored when interpreting the 2nd Amendment. This was a remarkable moment in the career of a self-professed "originalist." Rather than attend closely to the words of the Founders on the subject of militias, Justice Scalia was persuaded by a linguistic analysis contained in a “friend of the court” brief. If you want to see how the sophists managed to make the words “well-regulated militia” disappear you may go here (source). This analysis was provided by Frederick L. Whitmer and associates. Whitmer and his colleagues manage a political PAC which disburses money to other PACs, such as the Defend America PAC, which defends the interests of the National Rifle Association (source).

Justice Scalia is a gun enthusiast. We know this because of his publicized hunting trip with Dick Cheney, when he spent his leisure time passing sentence on ducks (source). At the time, he scoffed at the notion that chumming around with the then-Vice President could possibly be construed as affecting his impartiality. I digress. The point is that, by removing the mention of a militia from his reading of the 2nd Amendment, Scalia was able to concoct constitutional support for gun ownership as an individual right.

An Angry White Man

If we were to consult the Founders on the subject of militias, they were actually very clear in terms of their intentions. John Adams, Patrick Henry and others pointed specifically to the government of Switzerland, a confederation of 13 cantons or districts which had (and have to this day) some degree of autonomy in decision-making. Both of these Founders were impressed by the armed citizens of Switzerland, but they were also cognizant of the fact that the Swiss did not allow citizens to own guns unless they belonged to a cantonal militia. The Swiss model provided an empirical foundation for deploying states’ rights as a counterweight to federal power.

James Madison also spoke of militias. Like Thomas Jefferson, he believed that the federal government was capable of overstepping its bounds and becoming a threat to the liberty of the American people. Still, he thought it highly unlikely that “the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads.” However, if the public were to be so inattentive and complacent to ignore the increasing militarism of their country – what we might call today the “military-industrial complex” -- the state militias would provide a last line of defense against tyranny.

John Adams specifically ruled out the idea of an individual right of gun ownership. He wrote:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, counties or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. A Defence of the Constitutions of Government of the United States of America, 1788
Please read that section again. Adams is stating that there is no individual right of gun ownership and, moreover, if such a right were to exist, it would spell the end of republican government. Adams is echoing Blackstone, who advocated that citizens “be restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.”

Again, in the time of the Founders and continuing to this day, the Swiss have coupled the right of gun ownership with the obligation to serve in the military. As it happens, the rate of gun ownership in Switzerland is nearly as high as it is in the U.S. However, the number of gun deaths in Switzerland is .77 per 100,000 people, whereas in the U.S. it is 2.97 per 100,000. Or, in other words, the U.S. has nearly 4 times the number of gun deaths (source).

The National Guard has the makings of a well-regulated militia. If anything, governors and legislatures are entitled to greater latitude in choosing whether to deploy the National Guard when the federal government decides that it is time for another military adventure abroad. Once upon a time, the National Guard functioned primarily to attend to national disasters and protect the homeland. But between 9/11 and the two Iraq Wars, the federal government has been calling upon the Guard with increasing regularity. It’s precisely the sort of gradual usurpation of power that the Founders feared, and precisely the sort of usurpation that James Madison believed patriotic Americans would never allow.

In fact, there is a historical precedent for this. During the War of 1812, the president sought to draft state militias to fight in the war. However, the great Whig Congressman Daniel Webster successfully argued that the federal government had no such authority, and many states declined to send their militias.

"Where is it written in the Constitution, in what article or section is it contained that you may take children from their parents and parents from their children and compel them to fight the battles of any war which the folly or the wickedness of government may engage in?" Webster asked. "An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from the substance of a free government (source)."

For this reason, the 2nd Amendment (properly understood), with its implications about the role and the leadership of state militias, has risen in my estimation. 


  1. Very well thought out, but a bit myopic...The "well regulated militia" is referring to the people, not an organized group per se. So, the right of the people shall not be infringed.

    Source: http://constitution.org/cons/wellregu.htm

    1. Hello!
      "Myopic" seems a bit harsh, don't you think? But I welcome your comment. When the Founders used the phrase "the people," they did not mean it in the modern, individualistic sense of the term. The term was often used interchangeably with "the public interest." If you consult The Federalist, James Madison's use of the term "the people" clearly refers to a collective body of voters whose interests are represented by their respective state governments. And the quote in the post by John Adams places "the people" within a framework of law. Anything else is anarchy.

    2. I do not see anarchy running rampant, but I do see plenty of law abiding citizens who own a firearm. He also made mention of Private citizens owning firearms for self defense. The only argument I could see being made is that private citizens are not meant to fight in wars with firearms owned for self defense. But it dose not ban them at all in any way,and actually ownership is approved by John Adams. It also makes the argument that the federal government has violated Constitutional law by sending the national guard to fight in foreign wars.

  2. Interesting read the only thing that can be drawn from this is private gun ownership is still allowed, but for private self defense. in other words we are not suppose to take our firearms meant for self defense to war. The federal government violated Constitutional law By sending the National Guard, as the author claims that the National Guard is the militia. to fight in a war over seas. That is the opinion of this writer of this article.
    I see no anarchy on our society except in areas with strict gun bans. The places in the US with the highest crime rate and the highest gun violence are the places with the strictest gun laws in place. Your argument would still imply that "the people" would still apply to me as an individual as I am also part of the whole. In other words my right as part of "the people" shall not be infringed. BY the meaning you refer to above that means anyone who dose not vote is not part of "the people" So those who do not vote dose not have a second amendment right.

    1. Thanks!
      I'd respectfully suggest that the Founders' notion of "the people" was based on the understanding that Americans were civic minded and concerned about the public good. This ties in with the idea of a "Social Contract," in which a people agree to give up a portion of their freedom for the blessings of society. Thus, the right to own guns must be balanced against the right of Americans to feel safe from the horrors of wanton murder and theft.

      The state-level correlation between strict gun control laws and violence is easily attributable to state differences in population density. I will say, though, that urban states and rural states have very different values. In rural states, gun ownership means self-sufficiency: the ability to protect oneself, hunt for game, and kill coyotes that are devouring one's herd. In urban states, gun ownership means something else, I think.

    2. by that logic, it makes more sense that those of us who are not simply horrified by isolated, rare acts of insane people like at Newton, but go the next step and are irrationally frightened of it happening again, have little right to cause others to live in more immediate fear by interfering with their right to defend themselves against robberies, rapes, break ins, etc. via oppressive laws.
      Spree murders are a stastical drop in the bucket compared to all other criminal acts.

      Additionally, i think you've misread Adams. He is clearly supporting civilian ownership of arms for self defense (as it exists today), as well as for organized responses to emergencies (something that is much rarer today, i.e. deputizing civilians).
      What he is opposing is people with arms becoming laws unto themselves, i.e. self directed vigilante action and mob rule. He's saying that arms and the potential for lethal force without a system of laws governing when it's okay to wield them is anarchic, not that gun ownership itself needs to be legislated in any way.

    3. You make legitimate points. I've been studying the history of gun rights and think there's more to say on the subject, so look for it in a future post.