Some Truth About the Constitution and Well-Regulated Militias

Rolling Stone has a good article about the twisted reading of the 2nd Amendment we’re living under. From legal affairs journalist Jay Michaelson:

The lie at the heart of all of this insanity is the Right’s ludicrous perversion of the Second Amendment. . . . Until 2008, no federal court had held that the Second Amendment conveyed a right to own a gun. On the contrary, the Supreme Court clearly said that it didn’t.

Why? Because of the obvious language of the amendment, which 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.”

For nearly two hundred years, there was widespread agreement that the Second Amendment meant what it said: that the right “of the people” meant the right to bear arms in well-regulated militias, which was how the nation protected itself prior to standing armed forces and police, and which slave-owners maintained to protect against possible uprisings.

Unquote. I interrupt the Rolling Stone article to insert more about militias from lawyer M. S. Bellows, Jr.:

What many don’t know is the Constitution’s *other* militia clauses that give the 2nd Amendment context:

Yes, “militia” is discussed OUTSIDE the 2nd Amendment. Article 1, Section 8 gives Congress power over national defense, including the army, navy – and militia. If we want to understand what the 2nd Amendment means by “well-regulated militia,” that’s where we have to start.

First, the Framers knew Caesar had led his troops across the Rubicon to crush the Republic and foresaw that a too-strong standing army could topple their nascent democracy in a military coup (as we’ve seen countless times elsewhere).

Accordingly, the Framers allowed for a permanent navy but a TEMPORARY army: “Congress shall have the power… To provide and maintain a Navy” (full stop), and “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”

But how could the new nation defend itself on land without a standing (i.e., permanent) army? The militia.

The idea being that in 1787, armies weren’t hard to create quickly: just pull cannons out of a warehouse, requisition a bunch of mules/horses, and call for volunteers . . .

But there’s more to it:

By “militia,” the Framers didn’t mean the Proud Boys and similar beer-swilling yahoos acting on their own initiative. They meant volunteer professionals, soldiers who would be equipped, trained, regulated, and deployed BY CONGRESS just like other military units. Here, read it for yourself. Article I, section 8, clauses 15 and 16:

“[Congress shall have Power] 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.”

So: CONGRESS is responsible for deploying, overseeing, *arming*, and *disciplining* (i.e training and regulating) the militia (with the states choosing local officers and arranging for training as Congress directs). Basically, the National Guard. . . .

Which is the point of this thread: that the 2nd Amendment doesn’t stand in isolation. It’s part of a larger scheme. After the original Constitution was adopted, the Framers immediately wrote the Bill of Rights: ten amendments designed to clearly identify and protect certain rights. One of them was the right to keep and bear arms.

Why? Some Framers feared the Constitution endangered states’ rights. Southern Framers, in particular, feared Congress might disarm the state militias that existed mainly to suppress rebellion by enslaved people. So the 2nd Amendment provides that members of the militia can’t be disarmed by the federal government.

Which basically is the same as saying that federal troops aren’t allowed to seize the Oregon National Guard armory in Salem. Which is fine. I can live with that.

Unquote. So how did we get to the point where a well-regulated militia is now interpreted as almost anybody with a credit card? Back to Rolling Stone:

What changed?

. . .  While the 1972 Republican party platform had actually supported gun control, the Reagan Revolution transformed the party.  (Ronald Reagan wrote an article praising individual gun ownership in Guns & Ammo magazine in 1975.)  Now, being pro-gun, like being anti-abortion, became a pillar of the New Right ideology.

After all, it ticked all the boxes, tapping into white fears of “crime” and “the inner cities,” populist resentment of “big government,” and male fears of losing power in the age of women’s liberation. The Right’s newfound infatuation with guns was white, male fragility projected onto firearm ownership.

And what had once been a fringe view rejected by the Supreme Court — that the Second Amendment gave individuals a right to own guns — gradually became Republican Party gospel when the fringe took over the party.  Former Chief Justice Warren Burger (a conservative appointed by Richard Nixon) described it as “a fraud on the Amer­ican public.”

Eventually, this view won out, not by persuasion but by simple politics. By 2008, there were five conservative justices on the Supreme Court, and Justice Scalia wrote an opinion in D.C. v. Heller saying that the Second Amendment conferred an individual right to own guns.

There are numerous problems with Scalia’s opinion:

First, he claims that the clause about militias is just a preface, with no relevance to the meaning of the right. “The former does not limit the latter grammatically, but rather announces a purpose,” he wrote. . . .  But wait a minute – if maintaining militias is the purpose of the amendment, then why does “the people” mean not militias but individuals?  Why is a purpose not a purpose? Justice Scalia simply dismisses the first half of the amendment as merely decorative, with no function whatsoever.

Second, Scalia simply dispatches as “dubious” the drafting history of the amendment, in which James Madison deliberately did not use language of individual rights that was present in contemporaneous documents. Thomas Jefferson, for example, had once proposed “No freeman shall ever be debarred the use of arms.” That proposal was rejected.

Third, Scalia inverts the meaning of the Second Amendment itself, by saying that Congress actually can ban military-grade weapons (i.e. the kinds a militia would use) but not handguns, which are used for self-defense (which the amendment never mentions).

Of course, what’s really happening here is a social, cultural phenomenon, using the constitution as an excuse. . . .

The tragic irony . . . is that we know how to stop this from happening. . . . The advocacy group Everytown for Gun Safety lists 37 solutions on its website, from background checks to waiting periods, prohibiting ‘open carry’ to repealing ‘stand your ground’ laws, banning high-capacity magazines and assault weapons to holding the gun industry accountable.

. . .  But God help any Republican who has the courage to stand up to the NRA, gun manufacturers, and the rage of the populist Right. . . . Our [inability] to do anything about these horrifying mass shootings is not the Second Amendment’s fault. . . .It’s Republicans’ fault. It is that simple.

Unquote. Today it’s also the fault of a few rogue Democrats in the Senate who love the filibuster and fear doing anything about guns. But the point remains: almost all Republican politicians oppose gun control and almost all Democratic politicians support it. 

Disturbing the Peace

The Second Amendment to the U.S. Constitution was ratified 225 years ago. It states:

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 let’s consider the Oxford Dictionary definition of “militia”:

A military force that is raised from the civil population to supplement a regular army in an emergency. “creating a militia was no answer to the army’s manpower problem”

Now let’s read who showed up last Saturday in Charlottesville, Virginia, as reported by The Guardian:

With their loaded assault rifles and pistols, camouflage, combat boots and helmets, it looked like the US army had descended on the pretty college town of Charlottesville, Virginia, as a white supremacy rally turned violent last weekend.

The military did officially turn up, in fact, in the form of the Virginia national guard, called into service to back up the police when a state of emergency was declared at 11am on Saturday morning….

But they were not the most visible or heavily armed soldier types [present]. That distinction goes to the militia [sic] members brought together as a unit from a handful of the hundreds of unofficial paramilitary groups that have long thrived across America due to the second amendment’s directive: “A well regulated Militia….”

With their trigger fingers ready on their loaded, battlefield-style rifles, held across heavy-duty body armour, these quasi-troops turned heads as they murmured to each other via radios and headsets.

The men in charge of the 32 militia members who came to Charlottesville from six states to form a unit with the mission of “defending free speech” were Christian Yingling, the commanding officer of the Pennsylvania Light Foot Militia, and his “second in command” on the day, George Curbelo, the commanding officer of the New York Light Foot Militia.

“We spoke to the Charlottesville police department beforehand and offered to come down there and help with security,” Yingling told the Guardian.

“They said: ‘We cannot invite you in an official capacity, but you are welcome to attend,’ and they gave us an escort into the event,” he added.

Gun laws vary from state to state and even city to city, but Virginia has one of the most relaxed sets of laws in the US. It is legal for civilians to carry weapons openly, including intimidating assault rifles loaded with 30-round magazines, which the Light Foots – but not the police or official military – carried during the Charlottesville event….

Curbelo praised his militia unit…. “We were de-escalating things and treating people injured on all sides, until we were hugely outnumbered,” he said, although he noted: “If I saw me coming at me in all my gear, I would find it intimidating.” 

This is insane. Private citizens who enjoy getting together and pretending to be soldiers are not a “well-regulated militia”. They aren’t a “militia” at all, no matter what they call themselves. A better word for these idiots is “paramilitary”:

Organized similarly to a military force. “illegal paramilitary groups”

Even if some right-wing fool on the local police force said they’d be welcome (“Come on down. Bring the biggest guns you have. The more the merrier!”), they had no business being in Charlottesville. The city police, the Virginia state police and, if necessary, the National Guard were responsible for keeping the peace. 

Furthermore, the law says these paramilitary groups are illegal. From Philip Zelikow, a lawyer and history professor, at the Lawfare blog:

For those close to the action, including the law enforcement personnel on duty, hardly any aspect of the Charlottesville confrontation was more menacing than the appearance of organized, often uniformed, private bands of men in military getups, openly brandishing assault rifles and other long guns.

This is an ominous development, but it is not a new one. And it can be—and has been—countered with legal action. I took part in that work.

In 1981 an organization called the Knights of the Ku Klux Klan organized and trained paramilitary groups to harass Vietnamese-American fishermen on the Texas Gulf coast. They, too, wore Army-surplus-style clothes and gear, not white sheets. Working with Morris Dees and the Southern Poverty Law Center, David Berg and I represented the fishermen in a federal lawsuit against the Klan. We invoked a Texas law more than a century old that banned “military companies” other than those authorized by the governor. There are similar laws in most states, including Virginia.

We asked the judge to shut down the Klan’s paramilitary activities.  Since this law had never been interpreted, we developed a legal standard to define the barred activity…We focused on private efforts to create a military or paramilitary organization that had “command structure, training and discipline so as to function as a combat or combat support unit.”

Expert witnesses explained how the group’s activities met the standard. The Texas attorney general urged the judge to accept our application of the law.  The judge … granted our request and in 1982 shut down the training activities…. The order worked. 

Our approach was used again in 1985 and 1986 when the Southern Poverty Law Center took legal action against the Carolina Knights of the KKK and its successor, the White Patriots Party. After they violated court orders, a jury found the organization and its leaders guilty of criminal contempt. The leaders were jailed….

The problem arose again during the 1990s as self-styled militias organized in several states. Morris and I published an op-ed in the New York Times in May 1995 to review the legal option of restricting the activity of private military groups. That danger subsided, after many lives had been lost—above all, in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. 

But the danger is rising again, as my town, the nation and the world can plainly see.

The Second Amendment arguments can be—and have been—overcome.  Individuals may have a right to bear arms for self-defense, but they do not have a right to organize and train as a private military group. In 1886 the Supreme Court laid the groundwork for controlling what the Second Amendment calls a “well-regulated Militia,” when it held that “[m]ilitary operations and military drill are subjects especially under the control of the government of every country.  They cannot be claimed as a right independent of law.” A New York appellate court noted in 1944: “The inherent potential danger of any organized private militia is obvious. Its existence would be sufficient, without more, to prevent a democratic form of government, such as ours, from functioning freely, without coercion”….

The language of Virginia’s Constitution is clear. While “a well regulated militia” is valued, including what state law calls the “unorganized militia,” the Constitution stresses that, “in all cases the military should be under strict subordination to, and governed by, the civil power.”

Well, when truckloads of organized groups of heavily armed men drive into my town—or your town—it is time to uphold the civil power. Virginia, like most states, has the legal power to stop them. And the precedents are on the books.

Amen.