09 February 2013

A well-regulated militia

In discussion of the meaning of the Second Amendment, much hinges on that first clause.

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.

So what does “a well regulated militia” mean? If only the Framers had explained.

Oh, wait!

I give you Article I, Section 8 of the United States Constitution:

The Congress shall have Power ....

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for 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, and the Authority of training the Militia according to the discipline prescribed by Congress;

I give you Article II, Section 2 of the United States Constitution:

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;

That settles things decisively, does it not? Contra many gun regulation opponents' fantasies, the armed militia described in the Second Amendment is not meant to protect private gun ownership or to equip the populace to overthrow a tyrannical government. Indeed, let's look again at a key bit of I:8 —

The Congress shall have Power .... to provide for calling forth the Militia to ... suppress Insurrections

The militia of the Second Amendment is not meant to engage in an insurrection against the government, it is meant to fight such insurrections: the militia is an instrument of the Federal government.


The canard that the Second Amendment enables the American people to defend themselves against government tyranny is instructively half true. You can see in the quotes from the Constitution above that the Second Amendment was part of a coherent plan by the Founders to keep the United States from having a standing army which threatens the populace.

Here's another clause from Article I Section 8 which is relevant which grants Congress the power:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Short pursestrings to keep the Army in check.

Reading the Federalist Papers, one sees that many commentators at the time regarded the Constitution as too weak a safeguard against the threat of standing armies; Alexander Hamilton is eloquent in his argument that this anxiety was understandable, given what people had seen with the monarchies of Europe, but that the awesome new principle of liberal democracy enshrined in the Federal government as described in the Constitution was going to keep the army from being a problem.

A nation without a standing army seemed sensible to many people in late 18th century circumstances, but it just didn't work out that way. It quickly became apparent that it would be difficult for the US to operate without a standing army at all. In keeping with the principle, though, between wars the army was drawn down to a small size ... until the Cold War era, which ballooned the “peacetime” military, largely out of the recognition that in the era of mechanized warfare a well-prepared nation had a major advantage. (Plus there was the drive for American global hegemony, y'know.)

Since the no-standing-army policy proved impractical, the US has developed a range of other practices meant to counter the familiar dangers. Civilian control of the military is maintained through our institutions and our military culture. We keep a sharp distinction between police and military jurisdictions. We use volunteer citizen-soldiers. And so on.

There are reasons to worry, as the anti-Federalists did over two centuries ago, that these aren't safeguards enough ... but we should be comforted somewhat by the degree to which our society keeps its attention on these questions. We should watch out for how our military has the potential to become a threat to popular sovereignty and we should scrutinize our institutions to ensure that they protect against that. But opposing gun control is not an effective tool in that project. Access to handguns and semiautomatic rifles isn't going to do us much good in the implausible event that the weight of the US military were to be turned against the American people; instead, we should be working to ensure that the military is not used as an instrument of tyranny in the first place.

There are arguments to be made for the value of protecting access to private gun ownership. But saying that the Second Amendment guarantees it as a way of ensuring that the People can revolt against the Government is not one of them.


Unknown said...

This is an interesting commentary, and not one that can really be argued with, but it does avoid the larger question of what this implies.

If we take at face value that the militia was intended for defense of the state, and to be run by the state, which, as you've shown, is clear...

And we take as a given that, at present, we do have, and will continue to have a standing military (although I am not as comfortable with you in our standing military)

Then we still have the question of whether or not the keeping and bearing of arms is indeed a Right, which is recognized, not granted by the government, and if so, to what end that right is essential.

As I understand it (please feel free to correct me) the Bill of Rights is a collection of rights which are guaranteed to the individual, which the state will not violate. It seems odd to me that the state would then guarantee itself a right within this section of the constitution.

I would be curious to hear your thoughts on whether this is an individual right, and it's placement within the Bill of Rights.

Thank you for your clear and concise points on the militia itself, and I look forward to reading your thoughts on the bearing of arms itself.

Thank you.

Doug Muder said...

I think there's a federal/state issue. If the federal government could disarm the militias, then the states would be forced to accept a federal army even in the absence of an insurrection or invasion.

As this TruthOut article shows, the slave states worried about needing to depend on the federal government to put down slave uprisings that Northerners might support.

Anonymous said...

I'm sorry, am i missing something? Is something remarkably unclear? His own quotes betray his thesis!

Looking into this area we find: (ref: http://www.usconstitution.net/xconst_A1Sec8.html)

U.S. Constitution
Article 1 - The Legislative Branch
Section 8 - Powers of Congress

"The Congress shall have Power...
"To lay and collect...
"To borrow...
"To regulate...
"To establish...
"To coin...
"To provide for...
"To establish Post Offices and Post Roads;"
"To promote...
"To constitute Tribunals inferior to the supreme Court;"
"To define and punish...
"To declare... grant... and make Rules concerning...
"To raise and support Armies...
"To provide and maintain a Navy;"
"To make Rules for the Government and Regulation of the land and naval Forces;"
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

How very curious; they can "establish" a Post Office, they can "constitute" Tribunals, they can "raise and support" Armies; but they are only granted the explicit power to "provide" for calling forth the Militia.

"Call forth"; curious don't you think? Unless we suppose that acts of theurgy were intended, I suspect that the Militia would already have to exist. Amazingly, I see nowhere where they "establish", "constitute", "raise", or even "provide" the Militia. It seems they can only "provide" to call it forth.

We've been here already folks.

As long a the Nation exists, the Militia exists, by virtue of it citizens. They are the Militia!

United States Code Title 10, Subtitle A, Part I, Chapter 13, Section 311 (ref: http://www.law.cornell.edu/uscode/text/10/311?quicktabs_8=1#quicktabs-8)

10 USC § 311 - Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Quite clearly, the imbecile needs to read and comprehend what he is quoting.

Anonymous said...

If I take it a step further; it does not even grant Congress the power to "Call Forth" the militia. Only to "provide for calling forth the Militia".

Therefore it could be deduced that their only power is to insure that a communication of need is, in fact, received by the Militia.

Jonathan Korman said...

Unknown, that's an interesting point that the inclusion of the Second Amendment in the Bill of Rights suggests that it should be regarded as an individual right, by association. But I don't find it persuasive.

The basic argument-by-association isn't very strong. More significantly, the association is broken by the Tenth Amendment, which addresses powers of governance rather than individual rights. And it's notable that the Second Amendment is exceptional among the Bill of Rights amendments in opening with an explanation of its purpose ... an explanation which links to the description of militias as an instrument of the Federal government in the body of the Constitution.

So I'm sorry it wasn't clear: My central thesis is that this demonstrates that the Second Amendment does not protect an individual right. Now in the spirit of More Liberty Is More Better, I respect a hesitance to regulate individual access to firearms. But I do not see that as Constitutionally protected.

(And FWIW, I'm not so comfortable with our standing military, either. But I think it's clear that it does not present the inherent threat of government tyranny which the anti-Federalists of the 18th century imagined.)

Jonathan Korman said...

Anonymous, I'm quite puzzled about what point you thought I was making which you believe your comments refute.

Split hairs all you will about what it means for the Congress to provide for the militia if you will. Reference post-Constitutional legislation describing Who The Militia Really Is if you will. It remains clear from the Constitution that the militia is subject to Congressional provisioning and Presidential command. Thus the Second Amendment is not a protection for an individual right. Nor is it a mechanism to support rebellion against Federal authority.

Unknown said...

Your proposal at opening:
"So what does “a well regulated militia” mean? If only the Framers had explained.

"Oh, wait!

"I give you Article I, Section 8 of the United States Constitution"

This directly proposes that your quotes following are to provide evidence as to what a "well regulated militia" means.

The information you then provide has no bearing on what a militia is, or even of whom it is composed.

Your facts only provide for what powers Congress may have in relation to the militia.

Basically your evidence provides that they may request the assistance of the militia in certain circumstances, and that should the militia respond to such assistance, that they will be governed by congress during the period of their employment to those ends.

It even goes so far as to say congress has the power to "provide for organizing, arming, and disciplining, the Militia", but this does not insinuate that congress is responsible for these issues, only that it may be a supporter by way of provision.

The constitution is an explicit contract. No inferences may be made as to intent.

Either power is explicitly granted, or it is not. In your examples there is nothing that explicitly supports your opening remarks.

Obfuscation and redirection are not acceptable methods of addressing the subject.

Although I appreciate and even like some of your commentary, your argument utterly fails your proposal.

Jonathan Korman said...

OK, Steven Jones, point taken. As you say, the Constitution does not define the militia.

But I don't see how this detracts from the main thrust of my post.

The Constitution does describe how the militia functions as an instrument of the Federal government. This clarifies what the first half of the Second Amendment means when it refers to “a well regulated militia being necessary to the security of a free state,” supporting my claim that many people have misunderstood it.

Unknown said...

I'm sorry, but I must still disagree. I will concede that it outlines how the militia may be employed and/or supported by the Federal government (after all if you wish a body to come to your assistance, it would only make sense that one would support it to maintain its strength and resilience, for when need should arise).

In both paragraphs of your quote from U.S. Constitution Article I §8 Explicitly grant Congress the power "To provide"...

The second paragraph of §8 goes on to grant power, "for governing such Part of them as may be employed in the Service of the United States".["such Part", not in toto] This explicitly gives them authority over that portion which is in their employ. This acknowledges that it is not a Federal organization.

Article II, §2 grants that, "The President shall be Commander in Chief of... the Militia of the several States, when called into the actual Service of the United States". Therefore the only time the President has any authority over the Militia is after Congress has made request by way of providing "for calling forth the Militia", and "such Part" as has responded to that call is now "employed in the Service of the United States", until such time as they have been released from such service to the Federal entity known as the United States.

Unknown said...

It must also be noted that Second Amendment speaks of "security of a free state; not a free republic, not a free nation, not even a free "State".

There is valid argument that the lacking capitalization suggests that this is not intended as an independent legal entity of the republic of the United States, but instead asserts the individual's personal state, or environment, of freedom.

Jonathan Korman said...

Steven, I truly cannot discern your point.

My reading of the Constitution has me conclude two things. And the militia serves not as a check on Federal power by enabling a popular movement to overthrow the government because the militia is an instrument of the Federal government (if not necessarily only that).

I don't see how your comments about What The Militia Really Is affect these points.

Unknown said...

I understand your position.

However, law (as science) has an explicit and strict language.

I’ll concede that there is nothing in any legal document (of which I am presently aware) that elucidates exactly what the duties of the Militia are, nor is it even blatant in any implication (either pro or con) that it is to serve “as a check on Federal power”. Those insights can only be gained by reading the documents and commentaries of the founding fathers (and they are quite clear!).

I’ll even go so far as to agree (and hope I don’t create further confusion) that “militia is an instrument” used by “the Federal government”; but not that the “militia is an instrument of the Federal government”.

Yes, you may think this trivial; but it is part of the explicit and strict language in use.

Perhaps this will help:
An employee of the Federal Government, is a citizen, under full protection of the U.S. Constitution, and may quit or otherwise terminate his employment with the United States at will. A member of the Armed Services is not an employee. He does not have the right to up and leave at his leisure. He is, for the term of his service, the property of the United States. He may be prosecuted, imprisoned and/or otherwise penalized for conduct that would, as an average citizen, be of little or no consequence.

In this example, an employee could be thought of as an instrument (although this word has its own explicit meaning) used by the Federal Government (i.e. the legal entity known as the United States). Similarly, a member of the Armed Services would be an instrument of (and therefore property of) the Federal Government.

There is nothing in our provided examples that requires the Militia to respond to the call of Congress any more than you are required to help a buddy move, when he gives you a call (though you may not want to ask him for any favors in the near future).

The Militia is composed of independent and free citizens of the individual States of the republic known as the United States.

Now the poor schmucks that live in Washington D.C., Puerto Rico and Guam may be in a slightly different boat, as they are residents of Federal territories of the United States, and are not in sovereign States. I’m not so sure of how that could be construed.

Jonathan Korman said...

Steven, I still cannot understand what you are driving at.

Perhaps you can convince yourself that the “free state” referenced in Second Amendment does not have the obvious meaning of a state in the sense of nation or of one of the United States, but rather the personal state of freedom, but this is such a departure from the obvious meaning of the text that I do not think that an ordinary, reasonable person would call that a “valid argument”.

Perhaps you can convince yourself that the duties of the militia are unclear, but any reasonable person reads Article II, Section 2 and sees that the militia serves under the command of the President when — as is described in Article I, Section 8 — it is called into service by the Congress.

And while I take your point about the distinction between the militia being an instrument used by the Federal government rather than an instrument of the Federal government, I am not remotely persuaded that being called into service by Congress and commanded by the President, the Constitution leaves it up to the militia members' judgment whether they want to obey. The President's command of the Militia, Army, and Navy are described in the same breath. The idea that the Constitution regards the Army and Navy as compelled to obey the President's command but not so for the Militia is your invention.

I'm guessing that you are a perhaps a Sovereign Citizen, convinced that you are possessed of a special knowledge about the True Meaning of American law; you demonstrate the characteristic baroque, strange, opaque, and long-winded legal theorizing. If so, I have encountered those arguments before and found them not merely unpersuasive, but absurd.

Unknown said...

I cautioned you early in our conversation that, "Obfuscation and redirection are not acceptable methods of addressing the subject."

From your own quote:
"To provide for 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, and the Authority of training the Militia according to the discipline prescribed by Congress"

Again: "governing such Part of them as may be employed"

How is it that you capitalized "Part" in your quote, yet you refuse to read All the words? Then you turn the discussion to one of "sour grapes" over your position.

I'm not so narrow as to have to agree or support an idea, to propose or present it. However, your vast knowledge and wisdom apparently allows you to Know my character and ideals. How truly disappointing. I momentarily believed I was in debate with someone who could reign in their prejudice and see past an agenda.

Perhaps it would just be best if I hop up on your soap-box, and suggest you go smoke some more dope, plant your backside in front of the idiot box, and pick up your game-controller pacifier.

Perhaps someone will listen to you when you're ready to read all the words in your quotes, and not just the ones that pander to your comfort zone.

Liberty, sir, is neither easy nor comfortable; and it is most certainly not a result of Safety.

A bid you and your vast superiority adieu.

Al said...

*golf clap*

Where do these idiots come from, Jonathan?

Never so much has hung on the capital letters in words!

Al said...

Of course, clicking on his name and going to his Google+ page gives more than enough context...

Jonathan Korman said...

Doesn't it just?