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What is the “Militia”? And Who are “The People”?

Monday, March 1st, 1999

by Dave LaCourse

The Second Amendment to the Constitution of the United States of America reads that:

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.

Gun control advocates declare that this Amendment is only a “collective right” given to the states, not individuals. Under this premise, the states could form their own militias to protect state interests without interference from the national government. In this way, the states could be a check on the national government’s power. Gun control advocates claim that the courts support their position. If the courts actually back them up, then it would seem that the gun control advocates would have this debate won.

Or do they? While the “traditional” view presented by the gun control advocates was very popular at one time, this changed in the 1980s. Professor Kates noted in an article on the Second Amendment that,

“The decade of the 1980s saw upwards of 25 law review articles on the Amendment. Only three were anti-gun: of those, one was by an anti-gun state Attorney General and another by a non-lawyer who lobbied for the National Coalition to Ban Handguns. In terms of articles in the top law reviews (Yale, Michigan, etc.), there were five, all of them pro-gun. In terms of academic books, there were three, all of them pro-gun.”

This trend has continued during the 1990s. It seems that the academic community is turning on gun control advocates, or at least on the interpretation of the Second Amendment.

One of the reasons that academic scholars are rejecting the “collective right only” ideology was very well stated in a report by none other than the federal government. In a 1982 report, a Senate Subcommittee found convincing evidence that the Second Amendment was indeed an individual right.

Among their findings was that James Madison was put in charge of drafting the Bill of Rights and that his purpose was to incorporate the proposals of the “Pennsylvania minority, Sam Adams, and the New Hampshire delegates.” One of the several rights that he proposed was that,

“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.”

Several changes were then made to the proposal, and according to the report,

“The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing ‘for the common defense.'”

Gun control advocates never mention this fact.

Another reason for rejecting the “collective-right only” theory was made in the Oklahoma City University Law Review. Robert Dowlut made a perceptive observation when he stated that,

“The collective right theory suffers from a logic defect. It is conceptually difficult to see how something can exist in a whole without existing in any of its parts. The collectivists essentially claim that there is a nebulous entity that exists somewhere between the individual and the state which is so important that the Framers protected it with a constitutional guarantee.”

This argument should be seriously considered. The Framers of the Constitution distrusted the national government enough to create the Bill of Rights. Why would they turn around and put so much faith in the state governments? The Framers more likely distrusted all levels of government. This would be more consistent than trusting some levels and not others.

The Second Amendment is also very interesting in its format. When one examines the vague wording of the Second Amendment, one must wonder why the Founding Fathers didn’t just write, “The Congress shall not interfere with the States’ right to form militias” if that was how they felt. Surely, with all their combined wisdom, they could have stated such a limited right in a simple sentence. The mere fact that the wording was more complex suggests that the meaning may also be.

Sanford Levinson examined the wording and intent of the Second Amendment in the December 1989 issue of the Yale Law Journal. He cited in The Embarrassing Second Amendment that, “What is special about the Amendment is the inclusion of an opening clause- a preamble, if you will- that seems to set out its purpose.” Clearly, another look is needed in order to find the true meaning of the Second Amendment.

The current debate centers around the Framers’ use of the “Militia,” and “the people.” These two phrases appear to stick out as ambiguous and open to interpretation. Relevant court cases, and several Amendments to the Constitution are needed to properly define these terms and formulate the intent of the Amendment.

A. the “Militia”- The Bill of Rights was ratified over 200 years ago. In that span of time, the meaning of many words have drastically changed. What some may consider the militia today may be far removed from the original meaning. Simply assuming that the definition hasn’t changed in over two centuries is a very dangerous oversight.

As stated before, gun control advocates hammer at the idea that the Militia is an organized entity such as the National Guard. However, the fact that the National Guard wasn’t even created until over a century after the adoption of the Bill of Rights seriously comprises the idea that such a limited system is what the Framers of the Constitution had in mind.

To resolve this issue further, one must turn to the courts for advice. And fortunately, the courts have stated how the “Militia” should be interpreted, both historically, and today. In the Supreme Court decision Presser vs. Illinois (1886), for example, Mr. Justice Woods in a bold statement proclaimed that,

“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United states, as well as that of the states; and in view of this prerogative of the general government as well as of its general powers, the States’ cannot, even laying the constitutional provisions in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.” [emphasis added]

The Supreme Court decision U.S. vs. Miller (1939) is by far the most interesting case dealing with the militia. To begin with, only the national government was represented at the trial. With nobody arguing to the contrary, the court followed standard court procedure and assumed that the law was constitutional until proven otherwise. If both sides were present, the outcome may have been much different.

However, since only one party showed up, the case will stand in the court records as is. As to the militia, Mr. Justice McReynolds related the beliefs of the Founding Fathers when commenting historically about the Second Amendment. He stated that,

“. . .The common view was that adequate defense of country and laws could be secured through the militia- civilians primarily, soldiers on occasion.

“The significance 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. ‘A body of citizens enrolled for military discipline.’ And further that 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 added]
It is interesting to note that Miller was an individual, and not a member of the National Guard. The Court never questioned whether Miller was part of the militia and focused on the type of weapon he possessed. The mere fact that the there was a question over which arms he received protection for “keeping and bearing” indicated that the right is for individuals, not the states. Otherwise, the Court simply would have stated that Miller had no standing under the Second Amendment as an individual and there would have been no question as to which arms he could keep at all. Any lower courts holding that the U.S. vs. Miller case gives credence to the “collective right” theory, and unfortunately a few have, are just plain wrong.

Also, under this ruling, military style weaponry appears to be the first and perhaps only arms protected by the Second Amendment. In The Embarrassing Second Amendment, author Sanford Levinson admitted that:

“Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use.”

Ironically, shotguns had proven themselves on the battlefield since World War I. But this evidence never made it into the courtroom because only the federal government was present to argue their side of the issue.

The potential findings for keeping or bearing military sidearms (pistols) or machine guns under U.S. vs. Miller will not be second-guessed here. However, the fact remains that the unorthodox fighting styles which have proven effective in recent wars like Vietnam, Afghanistan, etc. now make just about any firearm potentially suitable for military use.

This is exactly what the courts found to be true in Cases vs. U.S. (1942). Circuit Judge Woodbury stated that,

“. . . Because of the well known fact that in the so-called ‘Commando Units’ some sort of military use seems to have been found for almost any modern lethal weapon.” [emphasis added]

This included the .38 caliber revolver the defendant possessed in violation of the Federal Firearms Act of 1934 as a convicted violent offender. The Cases decision feared the Miller decision and ultimately dismissed the Supreme Court’s ruling by ruling against the defendent. Cases Court’s concern is apparent in the following passage:

“In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon.

Oddly, the anti-gun crowd now embraces the Miller decision blindly without researching both the underlying reasons for the decision nor the interpretation of Miller in Cases.

The final court case involving the militia is Perpich vs. U.S. Dept. of Defense (1990). This ruling shows that the National Guard is ultimately under the authority of the national government and that the States don’t have much say at all. The court found that members of the National Guard are dually enlisted for both their home state and that of the United States. The unanimous Supreme Court opinion ruled that they can be activated and sent away to foreign soil without the consent of their governors. It also held that the militia is more than the National Guard.

“The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an “organized militia” to be known as the National Guard of the several States, and the remainder of which was then described as the “reserve militia,” and which later statutes have termed the “unorganized militia.” The statute created a table of organization for the National Guard conforming to that of the Regular Army, and provided that federal funds and Regular Army instructors should be used to train its members.”

The “reserve militia” or “unorganized militia” were not defined, but the United States Code Title 10, Chapter 13, Section 311 (a) clearly states that all males between the ages of 17 and 45 who are either citizens of the United States or have declared their intent to become citizens are members of the unorganized militia. This definition may be sexist and age discriminatory by today’s standards, since it is an old section, but it nevertheless shows the intended wide coverage of the unorganized portion of the militia.

Under these case rulings, the “Militia” does not comprise a state army such as the National Guard, or at least not entirely. The wording of the Justices in these cases make this quite clear. The militia remains much more than just the National Guard.

With the courts ruling that the National Guard is ultimately under the power of the Federal government, it must be the citizens who make the Militia the final check on government powers, both national and state. If disarmed, the people could not put up strong resistance as they once did just over two hundred years ago.

B. “the people”- A collective interpretation of “the people” as “the states” is crucial in order to believe that the Second Amendment granted rights only to the states for forming Militias. Admittedly, “the people” sounds collective, but does it really mean the states?

In order to find the true meaning of “the people”, one must simply read the first Ten Amendments to the Constitution, commonly known as the Bill of Rights. The term “the people” was used in the First, Second, Fourth, Ninth, and Tenth Amendments.

Click Here to View “the people” in the U.S. Constitution.

The First Amendment has never been interpreted as giving “the states” the right to peaceably assemble. Nor has the Fourth Amendment been ruled as providing only protection for state officials from unreasonable searches and seizures. Why should the Second Amendment be treated differently?

Finally, the Tenth Amendment eliminates any remaining doubt by reserving powers to, “the States respectively, or to the people.” By listing these phrases separately, the Framers must have believed that these terms were different and separate identities. Otherwise, one of the phrases would have been removed from this Amendment.

Realizing this, how should we interpret “the people”? The Supreme Court just given several possible answers to this question in U.S. vs. Verdugo-Urquidez (1990). In the majority opinion, Chief Justice Rehnquist, along with Justices White, O’Connor, Scalia, and Kennedy ruled that Rene Martin Verdugo-Urquidez (an illegal alien) was not one of “the people” and therefore was not granted protection under the Fourth Amendment. Their ruling allowed the admission of evidence seized in a warrant-less search of his Mexican property.

Chief Justice Rehnquist, in his delivered opinion of the Court states that regarding the use of “the people”:

“Contrary to the suggestion of amici curiae [friends of the court] that the Framers used this phrase ‘simply to avoid [an] awkward rhetorical redundancy,’ Brief for American Civil Liberties Union as Amici Curiae et al. 12, n 4, ‘the people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and bear arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’ See also US Const, Amdt 1, (‘Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble’); Art I, S 2, cl 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the people of the several States ‘) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom the rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who have otherwise developed sufficient connection with this country to be considered part of that community.” [emphasis added]

In a separate opinion, although concurring with the final ruling, Justice Kennedy believed that:

“. . . explicit recognition of ‘the right of the people’ to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.”

The only reason Justice Kennedy agreed with the final decision is because the search and seizure took place outside U.S. borders. Otherwise, he felt that the Amendments, including the Fourth, would provide protection for an illegal alien.

Even the dissenting opinions of Justices Brennan and Marshall give credence to the individual interpretation of the Second Amendment. In fact, these Justices rejected the narrow interpretation of “the people” given by the majority.

Justice Brennan cites that in drafting the Fourth Amendment:

“They [the drafters] could have limited the right to ‘citizens,’ ‘freemen,’ ‘residents,’ or ‘the American people.’ . . . But the drafters of the Fourth Amendment rejected this limitation and instead provided broadly for ‘[t]he right of the people to be secure in their persons, houses, papers, and effects.'”

Both dissenting Justices described “the people” as “the governed.” They claimed that by making a person obey our laws while even in his own country, he literally has become one of “the governed” and therefore the protection under the Amendments should apply.

Without a doubt, all of the definitions by the Justices would make “the people” certain qualified individuals, not the states or any other entity. Whether “the people” is interpreted as the “citizens,” “freemen,” “residents,” “American people,” or “the governed,” it still remains an individual’s right to keep and bear arms.

By combining the historic definition for the militia, “as all persons capable of bearing arms”, and a restrictive definition for “the people,” such as “the citizens”, the Second Amendment could now read as follows.

A well-regulated Militia, consisting of all persons capable of bearing arms, being necessary to the security of a free state, the right of the citizens to keep and bear arms, shall not be infringed.
It should now be extremely difficult, if not impossible, to construe the Second Amendment any other way than to ratify an individual’s right to “keep and bear” arms.

The Emerson Case brings further credibility to the individual rights theory.

Click Here for more information on the Emerson Case.

And finally, the Founders of our Constitution and its Amendments wrote these documents based on their own beliefs. They made their feelings about the Second Amendment and firearms ownership in general very clear in their writings and speeches. The most appropriate way to end this section is have people view the Founders own words by clicking HERE for our quotes pages.

Dave LaCourse is the Public Affairs Director for the Second Amendment Foundation.