Last week, my new weekly columnist Dave Baumeister discussed the linkage between the right to bear arms and the militia, that group of patriotic citizens who are supposed to keep their muskets handy in case the Redcoats or the Spaniards or the Indians or the slaves start shenaniganizing. I stayed out of that conversation (since I’m convinced that the fundamental solution to gun violence is change the American mindset from associating guns with masculinity to recognizing that guns are for sissies and represent a failure to solve problems by rational, humane means). But I’d like to make on quick note on the militia.
As I reviewed the constitutionality of Scyller Borglum’s Wooden Nickel Referendum plan (which will require amending at least three Articles of the Constitution), I noted that the Founding Father mentioned the militia in four places in their Philadelphia scribing:
The Second Amendment famously refers to “A well-regulated militia, being necessary to the security of a free State….” But check out the three other references to “the militia”:
- Article 1 Section 8 includes in Congress’s powers the ability “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” and “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;…”
- Article 2 Section 2 makes the President the Commander in Chief “of the Militia of the several States, when called into the actual Service of the United States.” Perhaps this is the Constitutional provision Donald Trump had in mind yesterday when he “hereby ordered” all American businesses to implement his economic policy (hmmm… so if we call it a trade war, can we say the commander in chief is ordering businesses to act as the militia in repelling an “invasion” of foreign goods?).
- The Fifth Amendment says “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;”
Each of those references outside the Second Amendment includes “the,” the definite article. The Founders had in mind a single, specific entity. That single, specific entity may be called upon to back up the regular land and naval services for specific purposes: executing the laws of the Union, suppressing insurrections, and repelling invasions. The militia must follow the President’s orders. The militia is to be organized, armed, trained, and disciplined as Congress prescribes. Militia members, like soldiers, have fewer rights of due process when serving.
Gun nuts peddle the illusion that gun ownership is all about individual agency and virility (again, guns are the refuge of the inadequate). But the Constitution’s militia language makes clear that bearing arms is no primary individual right; that right is really an expression of and means to the greater good of national preservation. Contrary to the anti-government fantasies of Bundyville, the Constitution doesn’t affirm guns as a fallback against tyranny. The Constitution allows all those guns solely as an armory to protect itself and the government creates, weapons to be mobilized and controlled by the state.
Guns really are about socialism, not individualism. The Constitution gives the President no authority to nationalize businesses, but it explicitly grants the government power to nationalize guns and impress their owners into immediate national service. To that end, one could argue that Constitutional regulation of the militia requires registering every gun owner and every gun, so the government knows the exact size and location of the armory at its disposal. The government needs to know where those militia members are so it can call them up for training, discipline, and service at any time.
Gun control isn’t a violation of the Second Amendment; gun control is a fulfillment of the Constitution’s intent to protect the nation with a well-regulated militia.
This is the single best argument against “Heller” I have seen. Someone needs to challenge that ruling directly and get this “personal protection” stuff straightened out. Enlist the right-to-lifers, or at least adapt some of the same tactics. They are already well-versed in the rhetoric of contrasting individual liberties with “community values”. But in this case one need not look outside the government itself to a religion’s contra-tome. One only need look within the singular document that the Constitution is.
Unfortunately with the Heller decision the cat’s has escaped the bag, so to speak, and with Moscow Mitch’s Senate rejection of Obama’s moderate nomination of Garland to the SCOTUS and approval of both of Trump’s relatively young nominations of arch conservatives Gorsuch and Kavenaugh, along with the tenuous heath of Justice Ginsburg, it looks like it will be a very long time before the SCOTUS will be willing to consider the historical arguments Cory described.
This situation reminds me of conservatives’ objections to the legal analysis in Roe v. Wade and other “right to privacy” decisions. It has taken over 50 years before the SCOTUS might be finally re-populated with potentially enough conservative Justices to accept the argument against any “right of privacy” against wholesale government orders on how to live our reproductive lives. It looks like it will take at least another 50 plus years of changes on the SCOTUS before there is any realistic chance of the Court revisiting the Heller decision to give the government the additional power to regulate gun ownership, possession and use.
It does make an interesting constrast of conservatiuve thinking about what government should control – the availability of tools that allow us to freely use our bodies for sexual activity and reproduction, but not the avialability of guns that allow us to slaughter as many innocent victims as possible in the shortest time, kill police who try to intervene. kill government employees and officials who seek to enforce laws we disagree with, and to quickly and easily kill ourselves. Priorities, priorities. . . .
Why aren’t wingnuts whining about extreme right wing litmus tests for extreme right wing judicial candidates for lifetime positions.
When a disagreement from aggrieved parties that’s settled in a lawful matter, it’s commonly done by questioning ” what was the INTENT” when the document was agreed on and signed. The intent of the second amendment was to create a militia because we did not have a standing army. My take is that if you “want”,”need” semi automatic weapons, then start training and pass muster to be called at any time for whatever reason, at any age with registered weapons.
YOU ARE ABSOLUTELY CORRECT!! COULD YOU , (OR I) email this to that liar Dan Ledderman an other lawmakers?
Mark, all readers are welcome to share my posts and their thoughts with any legislators they want. I will suggest that sharing the post with Dan Lederman is a wasteof time, as he is a craven pawn of the NRA and Trump.
Indeed, cibvet: what good is a militia if the government doesn’t know its position and strength?
In that regard, Governor Noem’s abolition of the concealed weapons registration requirement seems to fly in the face of the Founders’ intent and national security.
The concept of “militia” as it relates to the Founding Fathers and the Constitution has been intentionally downplayed.
Historically, the Founders had a fear of a standing military/general such as seen in Rome, Britain, Napoleon, etc. The solution, create a militia that would defend its country when called upon. Pre-WWII American battles relied on militias from various states to form and become “Federalized.” A militia that needed their weapons to defend their country when called upon.
This need to defend one’s country has been transformed into stating that a person has a Constitutional right to walk into a public space with a fully automatic weapon with a 100 round clip.
Excellent research Cory. I will keep this sound constitutional logic in mind.
It’s too bad that the Second Amendment was written so poorly and ambiguously. I think it needs a re-write. Won’t happen, of course. The silliest part of it all is that SCOTUS Justices that consider themselves “originalists” or “textualists” aren’t really consistent on this topic IMO.
I think things will come to a head when an extremely popular measure, like universal background checks, is struck down 5-4 by SCOTUS. It will finally make the public aware that this might require a constitutional amendment to rectify. It’s a living document, after all.
TAG, we’ve got to vow that if anyone calls an Article V Convention, we all go and sensibly rewrite the Second Amendment.