Ignoring Core Purpose Makes 2nd Amendment More Vulnerable to Infringements: The Militia Aspect, Part 1
October 31, 2019
Unless the government gets back to basics on the Second Amendment, legal recognition of the right to keep and bear arms will be vulnerable to new edicts and court decisions supporting infringements. Unless gun owners have that expectation of their representatives, their president and their appointed judges, the long slide down Nancy Pelosi’s “slippery slope “ will continue –to the bottom and to the pit below that.
For government, that means a return to the Constitution and the committed adoption of a Bill of Rights culture. It means binding the branches down to their enumerated powers and actualizing the lofty goals of the Preamble, all intended “to secure the Blessings of Liberty to ourselves and our Posterity.”
For the National Rifle Association, that means holding paid staff and officers accountable for fidelity to Association Bylaws, just as citizens are supposed to hold representatives responsible for adhering to the Constitution. For starters, every member should have a current copy and be cognizant of the mandated purposes and objectives:
“To protect and defend the Constitution of the United States, especially with reference to the inalienable right of the individual American citizen guaranteed by such constitution to acquire, possess, collect, exhibit, transport, carry, transfer ownership of, and enjoy the right to use firearms in order that the people may always be in a position to exercise their legitimate individual rights of self-preservation in defense of family, person and property as well as to serve effectively in the appropriate Militia for the common defense of the republic and the individual liberty of its citizens.”
Don’t Be Afraid of the ‘M’ Word
“Appropriate Militia”? What kind of crazy gun extremist talk is that?
What’s insane is ignoring what the Founders knew to be “necessary to the security of a free State.” That the concept was allowed to wither and become comatose had everything to do with political treachery, and with a disengaged citizenry allowing it to happen while they focused on economic and other pursuits.
The power and the duty, however, never went away.
The Constitution elaborates:
“The Congress shall have Power ... To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress ... The President shall be Commander in Chief of ... the Militia of the several States, when called into the actual Service of the United States...”
The Militia hasn’t been “replaced by the National Guard” as latter-day gun-grabbers would have us believe. The Militia Act of 1903 (the Dick Act), which replaced the 1792 Militia Acts, clarified that the Militia is not the National Guard through that recognition of the unorganized Militia.
That’s recognized statutorily in United States Code, which defines:
“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.”
Here’s what here’s what the Subcommittee on the Constitution of the United States Senate, Ninety-Seventh Congress had to say:
“Congress has established the present National Guard under its own power to raise armies, expressly stating that it was not doing so under its power to organize and arm the Militia.”
The Supreme Court, in its infamous Miller decision, nonetheless recognized the function of the Militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was — and still is — to field citizen soldiers. These citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.
The Militia did not assemble on the green bearing clubs and spears. They came with the intent to match and best a professional military threat.
A modern Militia would require citizens to keep and bear exactly what the gun-grabbing politicians are trying to take away from them, what they pejoratively denounce as “weapons of war.”
But what about the “well regulated” part?
That applies to when called into service, under the “organizing, arming and disciplining [and] governing” functions of Congress. As for how that would work in practice, Alexander Hamilton gave us some insights in The Federalist Papers : No. 29:
“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 ... Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped…”
As an aide to George Washington, Hamilton understood that soldiering was a profession and that people had lives and trades that precluded attaining that level of qualification. He also recognized we are entitled to what even modern courts have recognized as "ordinary military equipment" that is "in common use at the time" and "that its use could contribute to the common defense." Once they show up for Militia duty, citizens are subject to the discipline. That said, the equipment they keep and bear in everyday life is not what is "regulated" and, significantly, there is no power delegated to any branch of government to authorize an override of "shall not be infringed."
That’s where another criticism, that “unorganized” means such Militia members will be hopelessly inadequate to the task comes into play. It’s undeniable that Washington was unhappy “with the undisciplined conduct and poor battlefield performance of the American Militia.” It’s also undeniable that discipline was introduced, notably through the efforts of Baron von Steuben, and the War of the Rebellion was won. But it also speaks to mistakes learned, and why the Founders made provisions in the Constitution to provide training and discipline when the Militia was called forth. “Unorganized” does not mean “disorganized.”
Curiously though, our Militia roots have been all but ignored, and not just by the political establishment. The gun groups, especially NRA, which mandates defense of the “appropriate Militia” in its Bylaws, focus their efforts on “self-defense.” That’s a worthy enough goal, but only a partial one that does not promote “the security of a free State” rationale of the Second Amendment.
As a result, the arguments revolve around carry laws, bans and arcane stare decisis (precedent) rulings, with more attention paid to that than to what the Founders intended. That means some judge with an agenda can get away with ruling that because you have a gun for home defense that has not (yet) been banned, you don’t need one the state won’t allow you to have. Ditto because laws provide for “may issue,” all you need is good cause, as defined by those who prefer “may not issue” as the default. Or you can’t carry openly because “shall issue” concealed carry permits are issued. And unless there’s permit “reciprocity,” you can’t carry into another state.
The fact is, the last thing “progressive” rulers want, posturing about what great champions of the people they are notwithstanding, is to allow the most egalitarian power-sharing arrangement between citizens and government ever devised, the right of the people to keep and bear arms. It’s also the last thing most so-called “conservative” politicians want too, in their desperation to hold onto the status quo.
They no doubt fear that as their despotism ratchets up, a trained Militia would pose a threat to the “monopoly of violence” that totalitarians require. That’s why those who would rule are so rabidly opposed to the last part of the Second Amendment mandating “the right of the people to keep and bear arms, shall not be infringed.” While Amendment II does not specifically articulate a right to rebellion, Amendments IX and X, along with the commitment made in the Declaration of Independence “[t]hat whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,” makes Founding intentions pretty clear.
They wanted their creation of a limited government bound by enumerated powers to endure. But should it ever be perverted into a tyranny by evil men, they installed a last-resort fail-safe for their Posterity who would be free.
That’s why reinstating an effective and Constitutional Militia system is what will be necessary to reestablish a Second Amendment culture and provide for true security and freedom. Once NRA puts out its self-created dumpster fire and works out its management problems, and if the Association decides to actually get serious about its Bylaws, vigorously backing such a movement would also defuse accusations that its initials stand for “Not Relevant Anymore.”
I intend to come back soon with another installment exploring how to reintroduce and implement “the Militia of the several States,” and explore some of the legal arguments giving us a roadmap of how we get from here to there.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms Newsand AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.