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Welcome to the Militia, Dear Reader
Jan. 10th, 2013 08:55 amThe Second Amendment to the US Constitution reads in full: 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. So, this begs the question - what does "a well regulated militia" mean? Is it important, or just rhetorical throat-clearing? Does it just apply to state militias, or is it an individual right?
The Supreme Court, as written by Antonin Scalia, says it's an individual right (PDF at link). I usually don't agree with Scalia, but he got this one right. Here's how, using the opinion and this analysis as a guide.
The men who fought the American Revolution started out just wanting the rights they thought they had as free Englishmen. Had George III agreed with them, well, Queen Elizabeth's picture would be on our dollar bill. So to understand what the drafters meant, we need to look at English history. Basically, by 1600:
Now, during the English Civil Wars, the militia was used more as a local police force than a field army, and by the time the Constitution was drafted, even George Washington was on record bad-mouthing the militia as useless. So Madison tried to fix that deficiency by giving Congress the power of "organizing, arming, and disciplining" the militia. To those opposed to the Constitution, and some for it, this looked like a way to back-door in the old "select" militia system.
Thus, the Second Amendment was written, (attempting) to make it clear that owning a gun was an individual right. It also attempted to codify the old English custom of "everybody is in the militia."
So, Dear Reader, welcome to the militia. Under the old Militia Act of 1792, by now your local militia captain would have knocked on your door, inspected your weapon, and told you where and when to meet for drill. Tomorrow, I'll have a few thoughts on what the Founders intended, and what we got instead.
The Supreme Court, as written by Antonin Scalia, says it's an individual right (PDF at link). I usually don't agree with Scalia, but he got this one right. Here's how, using the opinion and this analysis as a guide.
The men who fought the American Revolution started out just wanting the rights they thought they had as free Englishmen. Had George III agreed with them, well, Queen Elizabeth's picture would be on our dollar bill. So to understand what the drafters meant, we need to look at English history. Basically, by 1600:
- All adult males were members of the local (county-wide) militia.
- They were required to serve, and bring their own weapons and gear purchased at their expense.
- They could use their gear (and anything else) for appropriate self-defense.
- The militia was firmly under control of the local county gentry.
Now, during the English Civil Wars, the militia was used more as a local police force than a field army, and by the time the Constitution was drafted, even George Washington was on record bad-mouthing the militia as useless. So Madison tried to fix that deficiency by giving Congress the power of "organizing, arming, and disciplining" the militia. To those opposed to the Constitution, and some for it, this looked like a way to back-door in the old "select" militia system.
Thus, the Second Amendment was written, (attempting) to make it clear that owning a gun was an individual right. It also attempted to codify the old English custom of "everybody is in the militia."
So, Dear Reader, welcome to the militia. Under the old Militia Act of 1792, by now your local militia captain would have knocked on your door, inspected your weapon, and told you where and when to meet for drill. Tomorrow, I'll have a few thoughts on what the Founders intended, and what we got instead.
