“A well regulated Militia, being necessary to the security of a free State…”

I’ve been fairly geeked about the challenge to the Washington D.C. gun control ordinance currently in front of the Supreme Court. This might be the first time the Court directly addresses whether the Second Amendment provides for an individual or collective right to bear arms. I believe it is a collective right.

Historic case may decide U.S. gun rights – Christian Science Monitor (via Y! News)

Some legal scholars believe the amendment protects a right to keep and bear only those firearms that are necessary for ongoing service in a state militia. Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.

The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.

The Second Amendment says: “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.”

First, the text of the amendment can be read literally to support an individual right to keep and bear arms but it also can be read to provide no such right. Because there isn’t a clear answer in the text I think we need to look elsewhere, such as history, for an answer.

The early United States had a serious distrust of a standing army and only had one official battery, stationed at West Point, after the Revolutionary War ended. Instead of having a large, professional, standing army, the United States relied on the state militias. In 1791, the year the Bill of Rights passed, the United States reorganized and expanded the standing army. The Second Amendment was included in the Bill of Rights to provide assurances to the states that the standing army would not replace the militias (remember, the founders distrusted standing armies). The militias have subsequently become the National Guard.

Second, the Bill of Rights was not initially considered applicable against the states as the Supreme Court held in Barron v. Baltimore. This means that a state government had a right to limit arms within its own territories. It wasn’t until the 14th and 15th Amendments were passed after the Civil War that courts started applying parts of the first ten amendments (Bill of Rights) to the states (and even that took a long while). For the Second Amendment to apply to the states, the Supreme Court will need to find that the Second Amendment was incorporated by the 14th and 15th Amendments.

I’ve seen some supporters of the argument for an individual right to bear arms use a few choice quotes from some of the founding fathers, such as Patrick Henry but I don’t think they are the only source of the founders’ intent and are not dispositive. When I see the quotes, context has not been provided and several allude to the responsibility of all men to join their local militias (conscription?).

As such, I don’t think the Second Amendment provides an individual right to keep and bear arms. Furthermore, it is up to states to decide through their police powers when and what type of guns and weapons can be possessed and used within its borders. Do I think people should be allowed to own guns, yes. But there isn’t a Constitutional right.

That said, I don’t think the Federal government has the power to restrict your possession of guns. However, it can and does use its commerce power to limit the transport of guns across interstate lines and when the sale of a gun will affect interstate commerce.

2 thoughts on ““A well regulated Militia, being necessary to the security of a free State…”

  1. Flick

    I am in the militia in Virginia. Multiple American founders stated clearly that the militia comprises the whole body of citizens except a few public officials. I hear some saying that â??well regulatedâ? means that any lawful militia must be organized by the state. If that were the case, should the amendment not read â??state regulatedâ??

    Virginia, like every other state, has neglected its obligation to maintain any kind of state-based militia. (The National Guard is paid by fedgov, takes its orders from fedgov, can be shipped overseas to fight fedgovâ??s foreign wars, and must be requested from fedgov for use by state governors, so it does not fit the definition and defensive-only purpose of militia.) But one of the duties of the militia is to execute the laws of the union (art. 1 sec. 8). So if the state refuses to maintain a citizen-based militia, it is up to the citizensâ??-the militia-â??to regulate (organize, train, equip) themselves.

    We all know that with rights come responsibilities. We have the right of free speech, but we know not to shout â??Fire!â? in a crowded theater and that we can be prosecuted for libel. So what is the responsibility that comes with the right to keep and bear arms? It is in the opening phrase of the Second Amendment: â??Owning guns and writing letters to representatives being sufficient to the security of a free state,…â? Right?

    Owning guns is good, but itâ??s not what is necessary to preserve liberty in America. For any who are interested in taking seriously the responsibility that comes with the right to keep and bear arms, I invite you to check out todayâ??s militia at http://www.awrm.org. We might surprise you, especially if you still believe what the mainstream media and groups like the SPLC say about us. Also, be sure to check out the National Militia Standards (NMS) button on that site.

    Peace.

  2. danny Post author

    Flick,

    Needless to say, I strongly disagree with you. “A well regulated Militia” does refer to a militia organized by, regulated by, and answerable to a state. The state government is the people. If a state refuses to maintain a citizen-based militia, it is because the citizens of the state made that choice through their elected representatives. There is also nothing in the Second Amendment about writing letters.

    BTW: if I determine that you are a blog spammer, I reserve the right to delete your comment or remove your URL. You’re very close right now. I found an almost identical comment at the WSJ.
    http://blogs.wsj.com/law/2008/03/18/originalism-will-rule-the-day-in-gun-arguments/

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