Gun Rights Lesson #404 – The Militia

EDITOR’S NOTE: This is one of a series of articles on gun rights. Each addresses a common anti-gun trope.

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“The Second Amendment only protects militias! Today we have the National Guard – only they should have guns!”

This argument is an example of filtering what another wrote through one’s own definitions and biases. It’s cheap “gotcha” arguing, because it deliberately ignores the writer’s intent, the meaning of words at the time they were written, and all the surrounding history of the statement. It’s not even a good example, because it ignores plain language and basic grammar.

Before I dive into the history of militias and the context of their being mentioned in the Second Amendment, I’ll first point out the obvious grammatical flaws with the argument. The Second Amendment reads:

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.

What we have here is a sentence that declares a protection of a “right of the People” with an explanation for such a declaration. We do not have a declaration of a “right of the Militia,” as would be the necessary foundation for an assertion that 2A only protects militias. In fact, the entirety of the Bill of Rights refers to and protects “the People,” not to any subset or special group, and to presume that 2A is somehow different is nothing more than trying to fit a square peg into a round hole. The militia argument is an attempt to shoehorn a desired conclusion – that citizens should not be allowed to own guns – into a framework that plainly protects their right to do so.

As for the militia itself, and the explanatory statement at the front end of 2A, consider the history and context:

The Founding Fathers were deeply skeptical of standing armies. They considered them tools of oppression. The “militia,” on the other hand, was by both law and colloquial understanding the entirety of the able-bodied male population, ages 18-50 or so. The men of the nation were expected to stand in her defense, and as importantly, to be ready to stand in her defense. This is where the “well regulated” bit comes into play: it refers to the proficiency of the militiamen. A person who possesses guns will have knowledge of their use. In other words, well regulated meant that the militiamen could shoot straight. The defense of the nation, by the way, was not only envisioned as against foreign invaders. The nation had just fought a war of independence. It had rebelled against its government, i.e. the British Empire, in a war whose first shots were fired over an attempted gun confiscation by the government. It defies all logic and goes against history to imagine that the drafters of the Constitution would suddenly decide that only the government’s own army should be permitted to possess guns.

What of today, however? We do have a National Guard, that might be deemed the modern equivalent of a Militia. We also do have standing armies, obviating the need to “call up the militia” should the nation require defense.

This line of reasoning ignores or dismisses the core of the Second Amendment’s purpose: as a bulwark against Americans’ own government turning tyrannical. Because, at its core, defense of liberty against tyranny is indeed the purpose of the Second Amendment.

Not convinced? Consider an opposite interpretation. Consider that the Founding Fathers, who as I already mentioned just a few years back won a war for independence against what they considered a tyrannical government. To think that they would restrict the ownership of firearms to the government and only the government ignores history and defies logic. Why would they write up a Bill of Rights with 9 amendments that restrict the power of the government and one amendment that concentrates the power of government? Why would the Constitution, which is from front to back a document that limits what government is allowed to do, deny the citizens of the nation the means with which they could resist the government should it turn against them?

Now, if you think that the idea that the American people could actually stand up to their government in the present day is ridiculous, I offer you Gun Rights Lesson #633.

This reading of the Second Amendment falls under what is typically called originalism i.e. the premise that we must seek to understand and interpret the Constitution’s language as its authors intended us to and/or by adhering to the language of the time it was written. Some people, most typically of the Left, reject originalism, for various reasons. I won’t go into a deep discussion of originalism’s pros and cons here. Rather, I’ll posit the question – how else BUT via originalism can we try to figure out what 2A is about? Any other approach is nothing more than saying “I don’t like 2A, therefore I don’t think the government should be restricted by 2A. That’s simply throwing that part of the Constitution out the window.

While some might wish to treat the Constitution as a menu from which to pick and choose what to apply at any given point or to any given issue, theirs is the path that would destroy the Constitution’s very purpose i.e. to limit and restrict what government can do. Theirs is the path to a government of unlimited power, and ultimately a government that will turn tyrannical. History makes that amply clear.

Finally, lest some take this point about the militia as an excuse to restrict non-militia use of firearms, lets remember two things. First, and I cannot overstate this, the main clause of 2A is “the right of the People to keep and bear Arms, shall not be infringed.” Not the militia, the People. Not “reserved for militia purposes,” but categorically “shall not be infringed.” Period. As if that’s not enough, we have the oft-forgotten Ninth Amendment, which reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Lets roll back to the Declaration of Independence. From the second paragraph:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men…”

Life and liberty. I have an unalienable right to both i.e. those rights can neither be taken from me nor can I give them away. In having these rights, it follows irrefutably that I have the right to resist those who would deny me them. Thus, I have the right to defend myself against an attacker. And, just as my right to free speech includes my right to use tools (such as a printing press, a word processor, etc) in its exercise, my right to life and liberty and to defend both includes my right to use tools to do so. The Declaration of Independence affirms this. The Ninth Amendment reminds us (and our Government) that the rights derived from the DofI’s affirmation of principles remain ours. The right to bear arms in support of the principles of a militia does not obviate the right to bear arms in defense of our lives and liberties.

The Militia argument is, as I mentioned at the outset, born out of a pre-decided conclusion that citizens should not have guns, and is a tendentious straw-grasping at something that might be twisted to advance that conclusion. It doesn’t hold up, historically, grammatically, or under any precept of a free society and a limited government.

So,

Gun rights lesson #404: No, the Militia clause does not restrict ownership of firearms to the National Guard, the Army, or any other government group. The Second Amendment, just as every other amendment does, protects the rights of the People. All of them.