A Well-Regulated Militia

When I worked on the Hill, I was initially amused when Senators would submit a statement to the record about a bill that would pass overwhelmingly.  “Why were they spiking the ball?” I wondered to myself.  I eventually asked a more seasoned colleague who explained it wasn’t about vanity, rather it was about documenting legislative intent.  If there was ever a court challenge or controversy about the bill, the legislative intent could be understood by the statements members made at the time of passage.

I’ve been thinking about that in the context of the second amendment—the right to bear arms—so I went back to read the intent of the founders.  I found the answer in Federalist #29 in which Alexander Hamilton explained the meaning of the phrase “a well-regulated militia.” To understand, however, it helps to put yourself in the context of 1789 America.

The War of Independence was still a fresh memory—closer in time to 1776 than we are today to 9/11.  The memory of that experience included a well-developed suspicion of standing armies as a tool of tyranny.  Just look at the Declaration of Independence.  Its 27 grievances against King George III included protests over:

  • stationing a standing army among the population in times of peace;
  • rendering military authority superior to civilian authority;
  • seizing private property to house troops;
  • protecting soldiers accused of crimes from trial; and
  • the crown’s prosecution of war, encouragement of insurrection against local authorities, and support for native nations’ attacks on the colonies. 

There are at least a half-dozen specific examples in our Declaration that warned about the threat to liberty of a standing army.

So the founders, suspicious that a standing army could become a tool of some future tyrant, created a system of checks and balances to thwart a federal army ever threatening the liberties of American citizens.  Their solution was a well-regulated militia. 

In 1789, a militia was not a self-appointed force of citizens in camo running around in the woods by themselves.  Militias would be raised by each state government, their loyalty and devotion to the new American republic was assured by the fact that they would be defending their families, their neighbors, and their homes.  Because they might someday have to operate as a combined force, the militias were to be “well-regulated”—meaning trained to standards set by the federal government. 

There is a myth—or misconception—that the right to bear arms was a guarantee of individual gun ownership.  The Supreme Court didn’t adopt that interpretation until a 5-4 opinion in 2008—219 years after the adoption of the Constitution!

Again put yourself in the mind of a founder in 1789.  This was a great experiment in liberal democracy and republican government.  As a “republic,” everything the state did was a public thing—including defense.  Liberal democracies rely on free institutions to protect rights.  So you have to see the potential power of the federal government—including a standing army—as offset by the power of a militia under the authority of the states that made up the union.  It wasn’t that one man with a gun would stop tyranny: it was that the free association of citizens organized in state governments would act as a bulwark against the power of the central government.

In that context, the second amendment wasn’t about an individual’s right to bear arms: it was about preventing the federal government from interfering in the ability of the individual states to establish “well regulated militias” and thereby protect liberty.  Just as the founders created a constitutional system with three co-equal branches of government in opposition and balance with one another, they believed the militia would meet the needs of national defense while also balancing the potential tyrannical power of a standing army.

The American republic was created to be a deliberative republic.  Reason and debate are supposed to prevail over emotion and cynical assertions of power.  Among the industrialized nations of the world, only the United States tolerates mass violence with guns like we’ve seen this week.  Where others have seen spasms of gun violence in recent decades—as in the United Kingdom, Australia, New Zealand, and elsewhere—governments have acted to protect their citizens by restricting access to automatic and semi-automatic weapons.  In the United States, today, we remain paralyzed—not by fear, not by Constitutional parameters, and not by the intent of the founders.  No, we are paralyzed right now by a Senate leadership that simply refuses to even consider legislation to address this crisis.  It is a willful dereliction of duty, and it must end.

12 thoughts on “A Well-Regulated Militia

  • December 4, 2022 at 7:36 pm

    Except, without an individual right to bear arms, what you’re saying is nonsense. The Founders understood that an individual right to bear arms was necessary for a well-regulated State militia. Ownership of arms is from where the arms would come – NOT from the State. Without a right to bear arms, the argument is nonsense.

    “There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army.” (Washington, H.A., ed., The Writings of Thomas Jefferson, volume III, Washington: Taylor & Maury, 1853. 13. Print.)

    The States, in the change from the Articles of Confederation, added the phrase “a well-regulated militia” – to emphasize this point from a State perspective, and to clarify that their militias were not going away.

    Immediately prior to the Constitution, the Articles of Confederation provided that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered”

    If it was meant as a state right, the amendment would be something like: “A well-regulated militia being necessary for a free state, Congress shall not infringe the right of the states to arm the militia.”

    Instead, if we consider that its an individual right, we see that view is consistent with the wording of the operative clause, “the right of the people to keep and bear arms shall not be infringed.” The amendment thus ensured that there could be a body of the people armed and available to serve in the militia.

    When Madison introduced the various proposed amendments that would later become the Bill of Rights, he proposed to insert the bulk of them, including what would later become amendments one through five, part of the sixth amendment, and amendments eight and nine, into Article I, Section 9, between Clauses 3 and 4. His speech to Congress can be found here: https://www.usconstitution.net/madisonbor.html

    This is the portion of the Constitution which limits Congressional power over individuals. Clause 3 is the prohibition on Bills of Attainder and ex post facto laws. Clause 4 is the limitation on the imposition of taxes directly on individuals as oppose to excise taxes on economic transactions. This clause has been substantially abrogated by the sixteenth amendment, authorizing the federal government to tax incomes.

    In other words, Madison proposed to put these amendments into that part of the Constitution that protected individual rights of the people from the federal government. This makes no sense unless he intended 2A to represent Individual rights.

  • December 8, 2022 at 11:24 am

    Is there any well-regulated Militia in or around Fort Worth Texas

  • December 14, 2022 at 9:06 pm

    Now that we have a standing army, navy, Air Force, and marine corps, and state militias in the form of the National Guard, the phrases “well-regulated militia being necessary”, etc. has become archaic to the point of nonsense, and thus so has the 2nd amendment as the basis for all gun laws. I think the courts should figure out how to deal with that irrelevance. Originalism requires an admission that parts of the original intent are obsolete. In a sense it is the courts’ job to keep the constitution right, in its original spirit, not to keep it original no matter what.

  • December 24, 2022 at 10:24 pm

    An amendment that was written in the late 1700’s. When firearms expelled on shot at a time. Today a one second shot will shot many single humans dead. Still know laws to govern this equipment.
    In the early 1990’s we found the automobile. Today one auto can kill many dead. The difference is that there are many laws governing its use. Also the ownership has to meet requirements.
    There should be a right to own a firearm. This right needs laws to protect the innocent.
    Hand firearms (pistol) and “hunting rifles” with a maximum capacity of 10 rounds non cartridge type be allowed for unconcealed use. ALL magazine, clip type firearms may be in possession inside a premise only for use in the need of a militia. Testing and practice of these firearms to be commissioned only in a licensed, regulated shooting range.
    Stiff penalties and loss of firearms.
    If you want to own a firearm there you go.

  • December 29, 2022 at 5:06 pm

    The right for individuals to bear arms was enshrined in the constitution as a necessity, because to provide a well trained and “well regulated” militia to defend against a possible tyrannical government, it was “necessary” for individuals to purchase, own and use their own guns (as there was no standing army). This is no longer the case, the US of A now has a well trained standing army and state troopers. Today any militias made up of disorganised, disgruntled, patriotic, gun loving, cos play Rittenhouse toy soldiers are a danger to life and democracy. The reasoning behind the 2nd amendment has been made redundant. Even if this was not the case it was never about an individuals right to own a gun for personal SELF defence anyway, not ever. Individual rights to own a gun were in the service of the state, forming a well ordered well armed militia. So today “the right” to own a gun is no longer necessary and even when it was, it was a right granted to allow individuals to defend their state not for their private use and as an accessory to go shopping in Walmart.

  • January 4, 2023 at 10:25 am

    It’s interesting that the author cites Alexander Hamilton as a representative of what the founders meant. Like today, the founders were far from unified in agreement, and Hamilton’s federalists were quite extreme. Hamilton even died in a duel with the sitting vice president, Aaron Burr (over both political and personal conflict). Also, Hamilton opposed the addition of the bill of rights, so it’s interesting to rely on his take on it.

  • January 13, 2023 at 1:50 pm

    Many people place the Constitution on the same level as the Bible as though God was the inspiration for both. As such, the original meaning or intention must not be violated. But, it is valuable to know what the intent was. As others have pointed out, the well regulated militias were for the defense of each state or collectively for the defense of the whole nation. The government we need to protect ourselves from is the government of a foreign power occupying our nation. Our government was never set up to be our enemy, we have checks and balances for that protection.

    The problems with militias was they tended to go back home when the crisis passed. The crisis passing usually meant it moved to another location. If there were any strengths to a militia it was they would fight for their homes but, it also engendered a weakness, they often were not willing to defend another states’s homes. They had a poor record for fighting against a professional army. In the war of 1812 the Maryland militia was given the job of protecting Washington DC. They fled after the first volley of British fire. They needed professional army training. None the less, the militias were to be organized in the various states as an ancillary force under the command of the national army in times of war. The militias were never meant to fight the national government they were a complement to the national military.

  • January 22, 2023 at 4:12 pm

    So, alot of things here. First, I saw a comment along lines of “at the time of the drafting of the 2nd Amendment firearms were only single shot instruments, thus it was never intended to apply to semiautomatic instruments or any instrument that is capable of firing multiple rounds”. This is actually not accurate, at the time the 2nd Amendment was drafted and enacted there did exist firearms with multishot capability and seeing as how the 2nd amendment did not specifically exclude these existing firearms from the right to keep and bear this argument is invalid.

    Next, “the 2nd Amendment applies to the states right to maintain a militia” well that is nonsense. It is universally understood that Amendments 1,3,4 5,6,7,8,9 and 10 are inarguably applied to individual rights.

    – 1A- INDIVIDUALs right to expression
    – 3A- INDIVIDUALs right to not be forced to quater soldiers in peacetime
    – 4A- INDIVIDUALs right against illegal search and siezure
    5A- INDIVDUALs rights in criminal cases
    6A- INDIVIDUALs right to fair trial
    -7A- INDIVIDUALs rights in civil cases
    -8A- INDIVIDUALs right to not be subject to cruel and unusual punishment
    9A- INDIVIDUALs right to not have other rights construed to deny rights to the INDIVIDUAL
    10A- Rights not expressly granted to the government to be this granted to the States and INDIVIDUAL.

    the argument against Individual right to keep and bear arms is based on an understanding that the 2nd Amendment is the one and only right indentified in the Bill of Rights that is not applied to the INDIVIDUAL

    This understanding of the application of the 2nd Amendment is illogical. The Bill of Rights is clearly intended to outline the rights of the INDIVIDUAL that are to be protected against infingement from the governing entity.

    The Bill of Rights, to include the 2nd Amendment, were drafted and implemented to apply to the Individual Citizen. The “Well Regulated Militia” is comprised of any and all INDIVIDUAL Citizens that are capable of providing defense against ANY entity that would threaten the rights of the Free Citizen and as such is dependent upon those INDIVIDUAL citizens providing their own arms capable of being used for such a task. At the time of the drafting of the 2nd Amendment, there did in fact exist firearms capable of firing multiple successive shots and since the 2nd Amendment did not expressly exclude these existing firearms it is clear the individual right identified is not pursuant to any specific class of capacity of firearm.

  • January 24, 2023 at 7:40 pm

    I’m seeing lots of thoughts that I express the constitution is obsolete. A lot of attacks on the 2nd amendment specifically with arguments like ‘back in the day they could only shoot once.’ Should we take the same logic to the 1st amendment? Or the other amendments for that matter? Why would any of you trust your protections to anyone else other than your very own selves? If this is what you believe then you are merely a subject. You have no rights to speak with authority on the matter of liberty. Subjects are cowards that won’t stand for what is right. They will hide to survive.

  • February 16, 2023 at 12:10 am

    Nunn vs Georgia 1846 was the first ruling regarding the second amendment post its ratification in 1791….DC v Heller 2008, McDonald v Chicago 2010, Caetano v Mass 2016, NYSRPA v Bruen 2022 ALL consistent with the TEXT, HISTORY and TRADITION of the second amendment.

    The Second Amendment in the Bill of Rights within The United States Constitution reads:

    “A well regulated Militia, being neccesary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    The 2nd Amendment in The Bill of Rights to our US Constitution, GUARANTEES every person has a RIGHT TO KEEP (have) AND BEAR (carry) ARMS.

    Other wording in 2A “Militia” any able bodied male, service in a Militia is NOT a requirement, it is an Individual right (not collective), “Regulated” means equipped, in proper working order NOT gov rules “Shall not be infringed” means what it says.

    14th Amendment guarantees equality!

    The right to keep and bear arms was not given to us by the government, rather it is a pre-existing right of “the people” affirmed in The Bill of Rights.

    See Heller v DC, McDonald v Chicago, Caetano v Mass, NYSRPA v Bruen

  • March 17, 2023 at 7:27 pm

    I’m very befuddled by many of these arguments against the 2nd amendment being a individual right. Every single amendment that mentions “the people” means exactly that and wouldn’t be argued on. So these arguments against the 2nd amendment these people are saying it’s the only amendment that says the people but doesnt apply to them. That’s absolutely absurd. Then there are people saying it was meant as service to the government which again is absolutely absurd. Why would they founding fathers give the government control of the very thing the were fighting against. Please go back and read tbe writings of Hamilton and many others who have written very clearly that the 2nd amendment was a individual right to self defense. Stop trying to turn this into want you want it to be over what the actual meaning is. Just because you dont like the 2nd amendment doesn’t mean you can deny it. It basically comes down to your own fears of firearms because of a lack of knowledge and understanding and the fact you don’t trust anyone other then yourself to possess firearms. The person who said there are no laws governing firearms like there is in the automobile industry. That’s probably the worst argument ever. Driving is not a right and the 2nd amendment has more then 20,000 laws on the federal and state making it by far the most legislated industry by far.

  • March 29, 2023 at 1:28 am

    Ppl defending this amendment saying like they would defend their homes with an ar 15 against a drone dropping package in their heads that would make their house seem like it was never there to begin with is funny to me. This was written in 1700’s, the militias were ineffective back then, imagine now. This ammendment does give ppl the right to bear arms, and if you follow what Hamilton said, you have to congregate for training once or twice a year to train, which let’s be honest, it’s simply not a thing.

    I think the constitution would be really different if Hamilton saw an F-16 firepower and how powerless he would be to defend himself together with a “well organized militia” that could simply be turned to red dust in the blink of an eye.

    There’s no point in civilians carrying weapons, there hasn’t been a point for a while now actually.

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