December 6, 2007
The Militia and the Second Amendment
Roger Williams University Law Professor Carl T. Bogus argues against the existence of an individual right to bear arms in Tuesday's Projo…
The traditional view is that the [second amendment] grants people the right to keep and bear arms only within the constitutionally-mandated militia — that it guarantees the states armed militia to provide for their own security.But Professor Bogus errs in suggesting that a militia is something created by a state. The militia exists, whether states choose to effectively utilize it or not, as Georgetown University Law Professor Randy Barnett explains with this powerful example…
On September 11th of 2001, however, the United States came under aerial attack by planes piloted by foreign nationals. Two planes struck the World Trade Center destroying it and, with it, thousands of innocent civilians inside. Another struck the Pentagon killing hundreds of members of the armed forces. A fourth plane, United Flight 93, was heading for the nation’s capital with the likely target being the White House. It was stopped from reaching its target, but not by the Army, Navy, or even the Air Force. Nor was it stopped by the National Guard or the armed constabulary of the District of Columbia. After all, these official personnel cannot be everywhere the nation is threatened. No, unlike [in the War of 1812], this time the White House was saved from possible destruction by the heroics of members of the “unorganized militia” who, after learning on their cell phones of the attacks by other planes, acted in concert to protect the capital from a second successful attack in the same morning at the cost of their own lives.The second amendment isn't a grant of a right to state governments. It is a guarantee of the right of individuals to prepare themselves to defend their country and their countrymen, under the most dire of circumstances.
“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.”
At the time the Second Amendment was written there was no permanent, standing army. Consider the possibility that “the right of the people to keep and bear arms” is what keeps the Militia “well regulated” and thus the State “free.”
Also, the word “People” when used elsewhere throughout the Constitution refers to individual rights, not “collective” rights.
I confess that I have no idea what the Second Amendment means, and I don't find a whole lot of guidance in the decided cases that I have read.
What I do find interesting, though, is that folks on both sides of this issue seem to be focusing on what the language of the Second Amendment meant at the time it was adopted . . . all of a sudden everyone is an "originalist," I guess.
Posted by: brasband at December 6, 2007 12:45 PMAndrew - I love it! Barnett "breathes life" into the Constitution just like Justice William Brennan would have! I am glad to see that you and he are forgoing the "strict-constructionist" views of Scalia and Thomas and prefer to interpret the meaning of the Constitution within modern life. I agree 100%!!!
Posted by: Matt Jerzyk at December 6, 2007 3:13 PMTom W's reading is the right one and most Constitutionalists do look at original intent. Sometimes language by itself can have different meaning based on small differences ie: "I did not have sex with that woman Monica Lewinsky" v. "I did not have sex with that woman, Monica Lewinsky". A comma can make all the difference.
Further, Bogus shies away from the RI Constitutional issue, built upon the US language. RI reads "The right of the individual to keep and bear arms shall not be infringed". Pretty definative... but not for the RI Supreme Court. Scary.
The Second Amendment is the one that guarantees all others. That is why it is second only to freedom of speech, religion and the press; the most basic freedoms.
JPS
Posted by: Jon Scott at December 6, 2007 7:31 PMMatt,
Professor Barnett's discussion of the militia is part of his originalist argument. Here's his conclusion…
Instead, resting their argument almost exclusively on historical “context” and parsing of text, [authors Richard Uviller and William Merkel] propose that the right to keep and bear arms was expressly conditioned on its exercise as part of a militia that no longer exists. This interpretation is belied by contemporaneous statements about the nature of the right and the meaning of the Amendment before, during, and after its ratification, by evidence of later usage, by the original meaning of the Fourteenth Amendment, by repeated affirmations by Congress, and by the current statutes of the United States.
Notwithstanding their opinion that "it would be difficult to conceive of any institution less necessary to the security of the fifty free states at the beginning of the new millennium" than the now-disorganized common militia, we may just need the militia again one day, as we did on September 11th. When we do, it may well be under circumstances where it would be better if its members have access to their own weapons to arm themselves. Fortunately, as the evidence shows, the founders had the foresight to enshrine an individual right of the people to keep and bear arms in the Constitution when they added the Second Amendment.Or to oversimplify a bit, the militia was the people then and the militia is the people now. Not much change in interpretation there.
But if you're looking for someone forgoing the original interpretation, a better place to look is at the people claiming that 2nd amendment now applies solely to a form of organization, the modern National Guard, that didn't even exist when the amendment was written.
And I agree with Tom and Jon. It's a little difficult to believe that the Founders decided to stick one collective-only right into the middle of a list of individual rights.
In 18th century America, the militia was comprised of men who volunteered for service and who were required, by the state's lack of money for armaments, to bring their own weapons to the fight. This being a requirement for "any well regulated militia," of course the 2nd ammendment applied to every man, whether a member of a militia or not, as, one day, any man might be called upon to defend his country - or to defend his family and neighbors against a fascistic government at home.
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