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 2^nd 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.