Why the Lack of a “Well-Regulated Militia” Doesn’t Undermine Individual Gun Rights

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I appreciate good faith efforts to repeal the Second Amendment. I don’t support them, of course, but I prefer honest debates to dishonest ones. In contrast, one of the most dishonest threads in the gun debate proposes that without a “well regulated militia”, there are no gun rights for individuals – that this right is only a collective one and can only be exercised by a militia, strictly defined, not “the people”, as the amendment specifies. This is both wrong and short-sighted for a number of reasons.

The Militia is the People

“I ask, sir, what is the militia? It is the whole people, except for a few public officials.” – George Mason, Virginia delegate to the Constitutional Convention

“The great object is, that every man be armed … Every one who is able may have a gun.” -Patrick Henry, governor of Virginia

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic…” -Joseph Story, Supreme Court justice

“Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them…” -William Henry Lee, Virginia delegate to the Continental Congress

Under every common understanding of the term for 300+ years, the “militia” has meant every free citizen of the republic. Period. At various times in the darker days of our past, citizenship itself has been limited to certain subclasses of the people, but what constitutes the militia has never been in question.

The amendment itself guarantees the right to “the people”, not to “the militia.” The militia is the purpose of the right, not its holder.

“Well Regulated” Doesn’t Mean What You Think It Means

“The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon…. [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check.” -Thomas Cooley, Michigan Supreme Court Justice

Some argue that “well regulated” means that any gun control regulation proposed should be allowed under the Second Amendment, because they’re just trying to regulate the militia. Others argue that because there currently is no “well regulated militia”, that the right of the people is null and void. Both these are wrong.

As it was understood at its writing, a “well regulated militia” was one that was armed, trained, and organized, not one that was hampered by legislation.

The purpose of the militia was that the armed citizenry could be called up at a moment’s notice to resist invasion, tyranny, or other conflict. The founders distrusted a standing army, so they rested the defense of the nation and its liberties in the hands of the people, literally. It was understood at the time that the states would ensure the training and readiness of the militia for such occasions.

With the advent of the permanent armed forces, the states have in effect transitioned their militia powers to National Guard units, but the federal government still maintains a registry of every male citizen for enlistment purposes should legislation permit and necessity arise.

State level concealed carry licenses and their mandatory training regimen are also a modern example of a “well regulated militia.” If gun control advocates took this argument to its logical conclusion, they should be proposing mandatory CCLs and state-subsidized safety and combat training for all citizens. I and the NRA would be happy to endorse such a proposal to make the new fair-weather originalists happy.

State Negligence Doesn’t Eliminate Rights

The argument is that since the states no longer maintain a “well regulated militia” that the people no longer have the right to keep and bear arms, since that was its purpose. What other rights that the people have are denied to them if the state fails to act in some way?

If the states do not maintain fully functional voting machines, do the people lose the right to vote? If Alabama chooses to stop issuing marriage licenses in order to stop same-sex couples from claiming their rights, does that mean no one in Alabama is married anymore? If local governments stop issuing protest permits, do the people lose the right of assembly? If states stop licensing medical doctors, do people lose the right to health care?

Bureaucracy is not a prerequisite for liberty; it’s almost always an impediment to it.

Finally, this argument has a very Trumpian air to it.

During the 2016 presidential campaign, Donald Trump famously said about his proposed ban of Muslim immigration to the US “until our country’s representatives can figure out what the hell is going on.” This abhorrent and illiberal idea is that because a few Muslims are terrorists and have committed atrocities within the United States, that we should prohibit all Muslims from coming, just in case.

Gun ban proposals work the same way. Because a few people with guns have committed atrocities, we should prevent everyone from owning guns “until our country’s representatives can figure out what the hell is going on” (or until they reinstitute militias, I guess?). Not all Muslims are terrorists, not all Mexicans are rapists, and not all gun owners are school shooters.

We live in a nation of laws, due process, and inherent rights. We don’t punish people when other people commit crimes, we punish the ones who commit them. If you want to take my guns away, you’re going to have to convict me of something or repeal the Second Amendment. Either way, good luck!

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