Liberty, Prudence, Imperfection, and Law

“The Militia and the Right to Bear Arms,” By Bruce Frohnen

The Struggle at Concord Bridge, April 1775

One of the more popular claims among those who question Americans’ right to bear arms is that the Second Amendment establishes only a group right; that is, they argue that the right to bear arms belongs to the militia and therefore can be regulated as much as governments wish, so long as it is consistent with maintenance of a well-regulated militia. The claim rests on the amendment’s opening statement, “A well-regulated Militia, being necessary to the security of a free State…” The argument is that this prefatory language restricts the meaning and extent of the right that is subsequently declared. On this reading, then, “the right of the people to keep and bear Arms, shall not be infringed” means “the right of the people who are participants in the militia to keep and bear arms” will be in some sense protected.

Anyone who values the Constitution, or the rule of law for that matter, should be happy to see our progressive opponents actually read and parse the meaning of the text of any legal pronouncement. One can even find some legal and grammatical support for the idea that the statement of a right’s purpose in the document that declares that right should in a meaningful sense define that right. But the militia argument falls of its own weight both logically and grammatically when one takes the time to read the second half of the Second Amendment. What is more, the history of militias and standing armies in English and colonial American history leads us in precisely the opposite direction to that pointed out by the militia argument. Where progressives’ reading would grant increased power to the central government over the people and their arms, history clearly shows an insistent refusal to cede power and authority to any central military establishment, instead prioritizing an armed citizenry. Those relying on the militia argument must continue to misread history and insist on rewriting rather than interpreting the Constitution if they are to have their way with the people’s rights.

To begin, as we should, with the text: The Second Amendment declares the right of “the people” to keep and bear arms. For some time prior to the Supreme Court decision in District of Columbia v. Heller (2008) “the people” was taken by the courts to mean an inchoate collective. Taken together with the reference to the militia, this ahistorical definition pushed courts to the mistaken conclusion that the framers of the Second Amendment intended the right to keep and bear arms as a collective right, liable to regulation in keeping with the purpose of maintaining a well-regulated militia rather than an individual right belonging to Americans as such. The problem with courts’ pre-Heller interpretation is that it reads “the people” as more restrictive than “persons.” That is, it assumes that “the people” can only be taken as some kind of group, rather than as the logical counterpart to “the government” or “the federal government” (or, perhaps most accurately given the language of other amendments, “Congress”). But the most natural way to read the language of the Second Amendment, in keeping with general usage at the time of its drafting, is as a right declared on behalf of the citizenry in general, not of those actually or potentially serving in the militia. Taken in this way, “the people” cannot be captured in its character or its rights by the previous term “militia.” The right may be rooted in its purpose, of supporting a well-regulated militia, but the identity of those bearing it is not constrained by that purpose.

This is not to say that the Second Amendment’s opening language is unimportant; it is extremely important. Reference to the militia serves to emphasize the drafters’ concern to ensure that citizens maintain access to the arms necessary to protect themselves, their states, and their nation. But what exactly was a militia at the time of the drafting of the Second Amendment, and what was its relationship to state and especially federal government?

A number of scholars over the years have pointed out the great importance of militias in republican thought and practice, both in England and in the New World. For centuries, the right to bear arms was considered an essential attribute of full political status in England. Catholics and Jews in particular were denied such rights on account of the official prejudice that they were untrustworthy. Moreover, the militia itself was seen as essential to the defense of the realm and also to the defense of the people against any potential tyrant. Standing armies were considered tools of oppression, to be kept at minimum strength whenever possible to avoid royal overreach. Monarchs retained only small bodies of guards and raised sizeable armies only for foreign activities.

The early Tudor kings had asserted control over the militia through their Lords Lieutenant, but the people were not always pliable. This was especially true because the raising of forces was doled out to local notables. In theory, all capable male property owners were part of the militia and were to keep and bear arms, and they were to drill so as to maintain military readiness. But discipline was necessarily lax and local loyalties generally trumped loyalty to the distant monarch. During the run up to the English Civil Wars of the mid-seventeenth century, Charles I sought to reassert control over the militia at the same time that Parliament sought to bring the militia under its own control.

At about this time, settlers in America were living in small communities surrounded by predators and sometimes-hostile Indians. Here service in the militia was neither voluntary nor casual, but a matter of survival. The use of arms for hunting also was essential for survival at a time and place when crops often failed but game could be had. The result by the time of the War for Independence was a society in which the bearing of arms was considered both natural and essential. When one adds to this the crucial role played by local militia in providing men and material to the colonial forces against Britain, the continuation of an attitude hostile toward standing armies is obvious—as is Americans’ attachment to their weapons as both means of survival and statements of their status as free citizens.

As in England, standing armies for many decades were considered tools of tyranny in the American colonies. Militia, even in towns and cities, were the backbone of communal defense. In these circumstances it is not surprising that the Second Amendment, written like all the others to constrain the new, distant federal government in its power to act against individuals and states, would be phrased in such a way as to make clear the connection between an armed citizenry and the militia—that is, a loosely organized armed citizenry capable of defending itself against outside forces, wild beasts, and the federal government.

The Civil War, the Supreme Court’s determination to institute a system of national markets during the late nineteenth and early twentieth centuries, and the drive to integrate the armed forces on a national level all combined to forge a more nationalist conception of the common defense. The militia itself came to be known as the National Guard to emphasize the federal government’s right to “nationalize” it in times of emergency. This nationalizing tendency may be behind the desire to link the right to bear arms to militia service. Properly understood it tends in quite the other direction. Up to, and long past, the drafting of the Second Amendment, militia service was seen as primarily local in nature, not national, and the right to bear arms was considered a critical bulwark of the right to self-government, the core right of any free people.

 

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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