Thursday, September 20, 2007

The Second Amendment- Part One: Who Are "The Militia?"

The Second Amendment to the U.S. Constitutions reads simply, "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." There is some debate as to what exactly that means.

The anti-gun crowd says that it is only meant to protect a "collective" right, wherein only state-sponsored militias (namely the National Guard) have the right to keep firearms. The pro-gun rights side contends that it protects an individual right, meaning that any law-abiding citizen may keep and bear firearms.

Anti-gun groups assure us that this individual rights interpretation is "divorced from legal and historical reality." Sarah Brady's anti-gun group stated on their website that "The [gun rights side] tends to omit the first, crucial, half of the Second Amendment -- the words referring to a 'well-regulated militia'."

We on the pro-gun side do not omit the militia clause of the amendment. We merely don't try to attach the 21st Century definition of the word "militia" to an 18th Century document. Since many words were even spelled differently at that time (Congress was Congrefs, for example), it stands to reason that their meanings may have changed a bit as well. Think about how the meaning of the words 'gay' and 'mouse' have changed.

So, who are the "militia" referred to in the Second Amendment? For the definition of the militia at the time that the Bill of Rights was written we must look at the statements of the Founding Fathers who were alive at the time.

George Mason:

"[W]ho are the militia? They consist now of the whole people, except a few public officers."

"That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defense of a free state."

State Gazette of S. Carolina (Sept.8,1788):

"Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen."

Samuel Adams:

"The militia is composed of free citizens."

Tench Cox:

"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

Providence Gazette & Country Journal (Jan.5, 1790):

"[A] well-regulated militia include[s] the body of the people capable of bearing arms."

The Founding Fathers drew a distinction between the "general militia" composed of the body of the people and a "select militia" which received special weapons and training from the government (like today's National Guard). They viewed "select militias" with almost as much suspicion and loathing as they did standing armies, as the following quote demonstrates.

Richard Henry Lee:

"A militia when properly formed are in fact the people themselves... and include all men capable of bearing arms... To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle."

Shortly after the ratification of the Constitution, the U.S. Congress passed The Militia Act of 1792 that declared that all free male citizens between the ages of 18 and 44 were members of the militia. It also stated that "[e]very citizen... [shall] provide himself with a good musket, or flintlock, a sufficient bayonet and belt, two spare flints...", in short, that every male citizen be armed. As with other rights, such as voting and owning property, the right to keep and bear arms was slowly extended to women and minorities through the years.

Connecticut Courant (Jan.7, 1788):
"But the people of this country have arms in their hands; they are not destitute of military knowledge; every citizen is required by law to be a soldier."
U.S. Senate Subcommittee on the Constitution (1982):

"In the Militia Act of 1792, the second Congress defined 'militia of the United States' to include almost every free adult male in the United States. These persons were obligated by law to possess a [military-style] firearm and a minimum supply of ammunition and military equipment... There can be little doubt from this that when the Congress and the people spoke of the 'militia,' they had reference to the traditional concept of the entire populace capable of bearing arms, and not any formal group such as what is today called the National Guard."

Many people don't care what some "arcane" agrarian-era law says anyway. But, this definition of the militia is still used today.

Current Federal Law: 10 U.S.C. Sec. 311:

"The militia of the United States consists of all able-bodied males at least 17 years of age and... under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States..."

Stephen P. Halbrook (Contemporary Author & Attorney):

(From his book, 'That Every Man Be Armed') "In recent years, it has been suggested that the Second Amendment protects the 'collective right' of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no writing surviving from the period between 1787 and 1791 states such a thesis."

It is easy to see that it is, in fact, Sarah Brady's constitutional theory that is "divorced from historical reality."
To be continued...

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