"A well-regulated Militia, being necessary to the security of a free State..."

"A well-regulated Militia, being necessary to the security of a free State..."

The Second Amendment to the Constitution of the United States guarantees the "right of the people to keep and bear arms," but only after it couches the right in (to modern ears) an obscure prologue that would seem to lay out the context and purpose of the right. For a hundred years or more, constitutional scholars and courts have argued back and forth over whether the Second Amendment secures an individual right to keep and bear arms, or whether this right is a collective right that secures the prerogative of the State to establish a Militia not controlled by the federal govenment. In his book America's Constitution, Akhil Reed Amir analyzes this debate and concludes that both sides miss the point of the Founders' inclusion of the right to bear arms in the Bill of Rights.

Amir writes:

Beneath the words [of the Second Amendment] lay a profound skepticism about a permanent, hierarchical standing army that might not truly look like America. Such an army might come to embody a dangerous culture within a culture, a proto-military-industrial complex threatening republican equality and civilian supremacy. The amendment's root idea was not so much guns per se, or hunting, nor target shooting. Rather the core idea concerned the necessary link between democracy and the military: We, the People, must rule and must assure ourselves that our military will do our bidding rather than its own. According to the amendment, the best way to achieve this goal would be via a military that would represent and embody us -- the people, the voters, the democratic rulers of a "free State." Rather than placing full confidence in a standing army filled with aliens, convicts, vagrants, and mercenaries -- men who would not truly represent the electorate and who might well pursue their own agenda -- a sound republic should rely on its own armed citizens, a "Militia" of "the people." Thus, no Congress should be allowed to use its Article I, section 8 authority over the militia as a pretextual means of dissolving America's general military structure -- this was the core meaning of the operative "shall not be infringed" command. (p. 323)

Amir goes on to refer to this understaning of the Second Amendment as the republican reading, distinct from the two modern readings of states'-rights and individual-rights.

States' rights anachronistically read the "Militia" to mean the government (the paid professional officialdom) rather than the people (the ordinary citizens). Equally anachronistically, individual rights read "the people" to mean atomized private persons, each hunting in it's own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of "the people" rather than "persons," the collective connotation was primary. (p. 324)

The principle underlying the Second Amendment was the lynchpen to guaranteeing a free Republic against tyranny and run-away Armies. For the Founders, the militia were the people and the people were the militia. The idea was the same one that instituted and pushed juries as important safeguards to liberty: the people, through non-permanent, non-beauracratic institutions, would counter the power-consolidating tendancies of the standing organizations of government and therefore act as a check and balance. Just as the House and Senate would check one another in the Congress (legislative branch), juries would check the standing courts and judges (judicial branch), and the militia would check the standing federal armies (executive branch). Each federal branch had bicameralism built into it. "Founding-era militias were closely akin to Founding-era constitutional conventions, electorates, and jurors. In each context, state law helped define precise boundaries of 'the people,' sepcifying when and how the people could properly act. Yet these webs of state law did not thereby transform any of these entities into an ordinary government agency. Rather, in each case, the law enabled 'the people' to act outside ordinary governmental channels and theteby check the professional officialdom." (pp. 324-325)

Last year in a post analyzing constitutional remedies to prevent run-away presidential war powers, I said I was not prepared to suggest ways to secure the country against presidents who would utilize the military domestically in unconstitutional, dictatorial or totalitarian ways. The militia was the Founders' answer to this threat, and for the first one hundred years of the Republic, the militias functioned as the Founders expected. So what happened to the militias? In two words, the Civil War.

 

Amir explains:

 

[T]he Civil War and Reconstruction generated a powerful constitutional counternarrative to the (romanticized) Revolutionary War vision at the heart of the Founders' Second Amendment. The very birth-logic of the Reconstruction Amendments -- the process by which they came to be proposed and ratified -- depended onthe good offices (and good officers) of the Union Army. As constitutional events of the highest import, these amendments necessarily valorized the central army and called into question the anti-army ideology driving the Founders' Second Amendment. But even as Reconstruction Republicans buried their fathers' Second Amendment, they helped unearth a new understanding of its intriguing language. Reading the amendment's words in the light of their own lived experience, they deemphasized militias and states' rights whiel accentuating an individual right of all citizens -- women as well as men, nonvoters as well as voters, civilians as well as militiamen -- to keep guns in private homes for personal self-prtection.

 

The United States today has the finest, most profressional, best trained fighting force ever assembled. It can beat any enemy in war, and it has never been used to suppress American citizens. Perhaps individual rights and liberty are so interwoven into the American story and psyche that the Army could never be used against its own people. Perhaps the fact that the military is made up of American citizens who volunteer to server their neighbors means that the Army will always be the best of us, even proitecting us from ourselves. If this is the case, then there is nothing in the world that even the best crafted constitional provision can add by way of protection.