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.

One thought 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.

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