Why “Militia” in the 2nd Amendment means all of us

“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.”

It is tempting at times to think it was a mistake that the drafters included the first portion (the “preamble” or “prefatory clause”) rather than simply leaving the last (the “guarantee” or “operative clause”) as the entire amendment, as the prefatory clause has created considerable confusion and dissention as to the meaning of the Second Amendment and how to ensure that it is properly being followed.  There has been a procession of ‘scholars’ and public figures in the latter 20th century and early 21st who maintain that the second amendment does not protect the rights of individuals to keep and bear arms but rather protects the right of states to maintain an armed militia. Further, they regard the ‘militia’ to be what is now the National Guard, and therefore that people are only guaranteed the right to bear arms when they are acting as part of the National Guard, and that they would only be authorized to keep arms if the militia failed to supply them with suitable arms, which of course the National Guard does.  So under this theory the disarmament of citizens is justified.  This is a real stretch to try to justify though, as it would put the preamble in direct opposition to the guarantee as I will lay out below.  It is more likely that the framers intended the preamble and the guarantee to support each other, than to be in opposition.

The U.S. Supreme Court resolved this question legally with the 2008 Heller decision, finding that the second amendment guarantees the right of individuals to keep and bear arms unconnected to any military service, and that the prefatory clause announces a purpose but does not limit or expand the scope of the operative clause.  Anyone weighing in on a conversation or argument on this subject should have read that 64-page decision, but for those short on time I have condensed it into about eight pages here using many of the same definitions and sources used by the Supreme Court.
A careful study of the issue requires a look at the definitions of the words used.

  1. “Right”

The Bill of Rights spells out rights guaranteed to individualsAll of the amendments use the word “right” to guarantee rights to individuals, not to governments.  If the Second Amendment were to be intended to guarantee rights to a government entity, such as a state, it would be the only amendment which did so.  In fact, nowhere else in the entire constitution is the word “right” used when talking about government.  Government has no rights as spelled out in the constitution; government has powers or authority.  Individuals have rights and powers.

  1. “The People”

The Second Amendment does not state that the right of the militia or “the right of the states to keep and bear arms shall not be infringed, it states that the right of the people to keep and bear arms shall not be infringed.  As with “Right,” “The people” has the same meaning in the Second Amendment as it does in every other amendment and the rest of the constitution:  individual citizens. There are no exceptions to the term “the people” meaning anything other than all individuals, anywhere in the Constitution.

  1. “Militia”

What is a militia?  This is the sticking point.  It is the term the individual rights opponents target.  They claim that the preamble only recognizes a right to bear arms if the person is a member of the militia, and that militia is today’s National Guard.  But the militia which existed in the 1770’s and 80’s, and therefore what the drafters referred to, was not an army of the government as the National Guard of today is.  The National Guard of today was created by the Militia or “Dick” Act of 1903, as a response to the trouble the Federal Government had in acquiring troops to prosecute the Spanish-American war. The Militia Act of 1903 guaranteed the Federal Government access to trained troops when needed for national security, without having to maintain a ‘standing army.’ The troops are based in the several states but are at the ready should the federal government call them up. The National Guard is therefore not an army of the people, but an army of the government.

But the founders deeply distrusted large centralized government with access to troops, and sought to provide the people a way to protect themselves from such troops: an army of the people. An army that is the people.

Article I, Section 8 of the Constitution (1789) references “the Militia” but does not define it.  But the Militia Act of 1792 did, and defined it thus:

“. . . that each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside,” “That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock,”

So not only was the militia of the constitution every male citizen of fighting age (not just those who volunteered for military service), but it was effectively a requirement of citizenship that men own guns!  This point was referred to by Judge Cooley, a 19th-century law professor:

                    “The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms.” – Judge and Professor Thomas Cooley, Treatise on Constitutional Limitations, 1868

. . . and in the following two cases:

United States v. Miller, U.S. Supreme Court 1939:

 “The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.  These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”(emphasis mine)

United States v. Emerson, U.S. Fifth Circuit Court of Appeals, 2001:

” The militia consisted of the people bearing their own arms when called to active service, arms which they kept and hence knew how to use (emphasis mine).  If the people were disarmed there could be no militia (well-regulated or otherwise) as it was then understood.  That expresses the proper understanding of the relationship between the Second Amendment’s preamble and its substantive guarantee.”

Today’s 10 U.S. Code § 311 spells out what the militia is even more clearly. It states that the militia now includes the National Guard, but is not limited to it:

 (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.

. . . it therefore expressly states that there are militia members who are not members of the National Guard. That is pretty clear, black-and-white.

Further, this prescription exactly mirrors what Hamilton laid out in Federalist 29 in January 1788:

“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. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

It is clear enough from the first and last sentences, that Hamilton considered “all the militia of the United States” to be “the people at large,” but that it was not realistic that they all be trained to the degree professional soldiers are as the time required would too adversely impact their productivity. So he goes on:

“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

Here he lays out the concept of today’s National Guard: a select group of the citizens of each state who practice regularly and can be called up by the federal government should a threat arise from without. However, since many were against the idea of the federal government being able to effectively establish a standing army and again oppress the people, he refers back to the last sentence of the first paragraph above where he suggests that the people at large be “properly armed and equipped,” and here describes their function as “to defend their own rights and those of their fellow-citizens” – against what? An army of their own government.

In 1982 the Senate Judiciary Committee Sub-committee on the Constitution reiterated this concept in Senate Document 2807:

“That the National Guard is not the ‘Militia’ referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to ‘raise and support armies’ and not its power to ‘Provide for organizing, arming and disciplining the militia.’ The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).

The National Guard of today, although being based in each state, is fully available to the Congress and the President of the U.S. Therefore while the Guard serves the State in times of natural disaster, when it comes to military use it is effectively no more than decentralized units of the federal army, and therefore cannot be the militia of which the framers wrote in the Federalist Papers and the Militia Act of 1792.  This becomes clearer when we look into the founding era citizens’ fears of a standing army:

What is the purpose of the militia?

In the 1770s, to be sure, one of the purposes of the militia could be to fight alongside the national army if the threat was invasion from a foreign power – if a national army existed; there was considerable distrust at the time of the constitution’s drafting of any government that felt the need to maintain a ‘standing army’ in time of peace. So many believed that the militia might well be the force called on to repel a foreign invasion.

But in addition to fighting alongside the army, there is ample material available in the way of quotes and papers written by the founding fathers to indicate that they intended also that the militia could rise up against the national army if the national army became the tool of a corrupt or tyrannical government. The founders were aware of many examples of governments turned tyrannical from their study of history and in fact, rising up against the army of a government turned oppressive is exactly what they had just done: do not forget that the British army was not a foreign invading power at the time of the American Revolution. It was officially the army of the colonists’ own government. The American colonial army did not yet exist. When the fighting broke out, there wasn’t even a recognized colonial federal government, only a “continental congress” which had met once in 1774, and its authority was questionable. The colonies were still officially British colonies, although by 1774 it was clear that a split, and war, was imminent.

The official national army of the colonies (the British army) represented a government which showed contempt for and distrust of its citizens.  The British army marched out to Lexington and Concord in April 1775 for the purpose of disarming the locals, who were practicing military drill and showing ‘signs of disobedience.’  They found the Lexington minutemen armed and facing them defiantly on the village green.  When British Major John Pitcairn yelled “Damn you, throw down your arms and disperse!” at them, was he really addressing a military unit under the command and control of his own government, as the National Guard of today would be?  Of course not.  The first shots of the American Revolution were then fired, by the national army against a local militia, and by the militia against the national army.

Two months later on June 17, this conflict escalated into the Battle of Bunker Hill – fought entirely by local militias against the British army. The American continental army was not involved – the second continental congress of 1775 had only created it three days earlier and its first battle was still a year away.

How large is the militia?

The British ‘regulars’ outnumbered the Lexington minutemen by a factor of 10 – some 700 to 70, and of course very quickly overpowered them.  But as the British troops moved on to Concord, the call went out and militia from neighboring villages came to aid, and by the end of the day the British found themselves badly outnumbered by some 4,000 militiamen. None of the British regulars would have made it back to Boston alive had they not been rescued by reinforcements from Boston who brought cannon.

This is a testament to the reason all citizens should be armed: they do, and should, outnumber the army. In fact, in Federalist 46, James Madison expressly figured that any standing army could never be more than 1/25th the size of the citizenry of fighting age:

“The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.”

Again, a framer expressly refers to ‘a militia’ as citizens, as opposed to army, in exactly so many words.

It is difficult to comprehend how after reading the above there could be an assertion that the militia referred to in the constitution was anything other than all adult male citizens and that should circumstances require it, they would be prepared to oppose the army of their own government.  Madison made very clear this was the intent.

What type of arms are citizens guaranteed the right to keep and bear?

This question comes up often, particularly regarding the very popular AR-pattern rifle developed in the 1960s and which an estimated 15 million Americans now own.

The anti-rights folks seize on one sentence only in the Heller decision, as if there were no other text there, when Scalia states that the decision is not a guarantee to carry any type of weapon whatsoever.  This, to the anti-rights people is a license for them to regulate away any and all weapons other than rubber band guns. They are going to lose, when the Supreme court finally rules on this question, based on many of its writings to date.

Multiple legal scholars have written about this point, and a few were referenced in the Heller decision:

“. . . a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons.” – J. Pomeroy, An Introduction to the Constitutional Law of the United States, 1868

“Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war.” – B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land, 1880

More recently, the question in United States v. Miller, U.S. Supreme Court 1939, was whether the defendant’s possession of a “short-barreled shotgun” was protected by the Second Amendment. The decision was that it was not, because “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

So while the decision recognized that the militia meant all males, it also found that the arms in question should be “. . . of the kind in common use at the time” and “. . . part of the ordinary military equipment (emphasis mine) or that its use could contribute to the common defense.”

Justice Thomas wrote a dissenting opinion when the court refused to review a 7th circuit case on an Illinois ban on ‘Assault weapons.’  “Heller,” Thomas wrote, “asks whether the law bans types of firearms commonly used for a lawful purpose, regardless of whether alternatives exist.  Roughly 5 million Americans own AR-style semi-automatic rifles, and the overwhelming majority of citizens who own and use such rifles do so for lawful purposes.  Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

The general consensus of the preponderance of legal scholars is, as the Heller decision noted, that not just any arms, but those which would be effective when going up against a military force must be guaranteed, as again the purpose of the militia is to repel a military force either foreign or, in the extreme, the army of their own government.  Therefore military-style rifles, if in common use and familiar to the bearer such that they can be used effectively, are and must be included.

Individual rights opponents sometimes sneer “does it guarantee rocket launchers and tanks?” No, it does not, because these cannot be regarded as anything the common citizen would be able to maintain, train with and be proficient with.  Further, these sorts of items are not necessary: when the militia outnumbers the army to the degree Madison figured, small arms are all that is necessary.

Does it still really apply?

Many individual rights opponents have now turned to “well, it may have meant all able bodied adults then, but that is no longer necessary.”  Modern America has become relatively safe when compared with many other countries, both from criminal elements and from government.  When one suggests nowadays that the purpose of the second amendment is not hunting and is not even mainly personal self-defense, but defense against an out of control federal government and its army, they are often met with derisive accusations of paranoia.

It is indeed very unlikely that the United States Government will come to attack its own citizens militarily any time in the near future.  But that does not negate that this is indeed the purpose of the Second Amendment. Examples are heard almost daily of governments all around the globe killing their own citizens to maintain power. In addition to Nazi Germany, Stalin’s USSR and Mao’s China which collectively killed 100 million of their own citizens during the 20th Century, more recent examples of citizens being killed by forces of their own government are:

  1. Cambodia, 1975-79; the government of leader Pol Pot, in order to institute communism by force, killed 1.5 to 2 million of their own citizens by starvation, execution, disease and overwork in the “killing fields”
  2. Halabja, Iraq,1988; 10-15,000 killed or maimed, mostly civilians, in a single chemical attack delivered by the Iraqi military. “Security” forces of Iraq President Saddam Hussein would eventually kill 250,000 Iraqis in his bid to remain in and expand his power.
  3. Rwanda, 1994; genocidal mass slaughter of an estimated 500,000–1,000,000 Tutsi – men, women and children – by members of the Hutu majority government.
  4. South Sudan, early 21st century; during a civil war, the government of President Lt. Gen Omar al-Bashir targets and kills an estimated 200,000 to 400,000 civilians, to drive them out of oil-producing regions in order to take the oil proceeds to fund continued fighting of rebels. Bashir became the first sitting president to be indicted by the International Criminal Court for directing a campaign of mass killing, rape, and pillage against civilians.
  5. The Iranian uprising of 2009; Iranian government forces kill citizens for peacefully protesting the government publicly.
  6. The Ukrainian uprising of 2013; Russian-backed Ukrainian forces kill citizens for peacefully protesting the government publicly.
  7. The Syrian conflict of 2012 to present; during a civil war, forces of president Bashar Al-Assad target civilians with chemical weapons and barbaric “barrel bombs” dropped from military helicopters. As this war is ongoing, we do not yet have any more than very rough estimates of casualties.  But just like his father, Assad will kill anyone he has to, in order to remain in power.

By making sure that this right is not infringed, and the people never rendered powerless to oppose the national army, we ensure that day never draws near and the proper relationship of the government to those who created and consent to its power is maintained.  If, God forbid, the day ever does draw near in America, those who threw accusations of paranoia will look to those who fought to keep the right to bear arms from being infringed, to now fight for their right – to survive.

The History of the text

A look at the history of the second amendment, from what was originally suggested by the state ratification conventions, to what was proposed by Madison, to its final form, is helpful.

Madison originally suggested this:

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

This went into a house committee of eleven members, including Madison. It came out of committee on July 28, 1789 looking like this:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.”

After some House debate, it looked like this on August 24, 1789:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

It then went to the Senate which edited it into its current form, including striking “composed of the body of the people”.  The Senate conducted its deliberations in secret, so there is no record of why this was done. However, we know that an amendment to it was defeated which would have made it say “bear arms for the common defence,” which would have removed the supposition of an individual right.  So “body of the people” was removed, but “common defence” was not added either. What was constant throughout was “the right of the people” which again, means all of the people everywhere it appears in the constitution, and nothing was added which limited ‘the people’ to any subset for any reason.

Self-defense

Another reason to believe that the framers wished to protect the right of all citizens be armed is that they believed in the right to defend oneself and one’s family and property against criminals. This purpose was referred to in letters between the founders, and while not mentioned in the Second Amendment and not the central purpose by any means, it is expressly stated in many state constitutions.  Thomas Jefferson noted this: “The constitutions of most of our states assert that all power is inherent in the people; that . . . it is their right and duty to be at all times armed.”

If one’s gun is locked up down the street at the National Guard armory, it would be useless for the purpose of self-defense. A full listing of protections of rights to bear arms in state constitutions can be found here. Following are portions of the first three states’ alphabetically:

“. . . we declare…. That every citizen has a right to bear arms in defense of himself and the state.” – Alabama

“The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State” – Alaska

“The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, . . .” – Arizona

Conclusion

Hamilton and Madison, writing in Federalist Papers 29 and 46 in 1787-8, wrote the terms militia, citizens, and ‘the people’ interchangeably, and both described well-armed citizens acting in opposition to the army of their own government if necessary, indicating their approval of an armed citizenry unconnected to the military.

The terms ‘rights’ and ‘the people’ used in the Amendment itself (1791) lead to no other conclusion than that ‘militia’ meant all individual citizens.

The Militia Act of 1792 defined that this was so, in black and white.

Most state constitutions use the term ‘individual,’ ‘the people,’ ‘any person’ or ‘every citizen’ when guaranteeing again, at the state level, the right to keep and bear arms, and fewer than 5 make mention of any military association or ‘common defense’ without also calling out self-defense as part of the purpose.

The United States Congress enacted the Freedmen’s Bureau Act on July 16, 1866 which expressly guaranteed to freed slaves all rights of citizenry, explicitly calling out the right of individuals to keep and bear arms, and making no mention of dependence on military service.

On page 44 of the Heller decision, is the following: “Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service.”

10 U.S. Code § 311 defines the militia as all able-bodied males 17-45 and all females who are members of the National Guard, and further defines the classes of the militia: the ‘organized militia’ being the National Guard and the Naval Militia, and the ‘unorganized militia’ as “members of the militia who are not members of the National Guard or the Naval Militia,” which very clearly says that there are members of the militia who are NOT in the National Guard.

The often–cited 20th century cases Miller and Emerson both referred to an understanding that the militia is “all males” or ‘the people,’ who were expected to provide their own arms and be proficient with them.

The Miller case also made clear that firearms guaranteed by the Second Amendment must be of a type “in common use” and “part of the ordinary military equipment.” This is tacit recognition of the opinion of most legal scholars that, as the purpose of the Second Amendment is to guarantee an armed populace who can oppose a military force if needed which requires familiarity with “weapons of war,” military-style firearms are included in the right guaranteed.

The 2008 U.S. Supreme Court Heller decision found that the meaning of the Second Amendment is that all United States Citizens have a right to keep and bear arms unconnected to military service, while also recognizing the States’ ability to place reasonable restrictions on possession such as on felons and the mentally ill, and on place and manner of carrying weapons. This decision struck down Washington D.C.’s ban on keeping any handguns as well as any operable long firearms in the home. But it only applied to Washington D.C.  The question was still open as to whether it applied everywhere.

The 2010 McDonald v. Chicago case settled that question. The U.S. Supreme Court held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.  In other words, Otis McDonald could keep and bear arms where he lived in Chicago, and states and localities could not prohibit citizens from keeping or bearing operable arms.

Illinois became the very last state to begin issuing concealed carry permits, in 2014.