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The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts)

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This treatise has one fundamental flaw, a misrepresentation of what the
term "militia" means. The authors equate it with an organized body
initiated and commanded by state government officials, but if that is
what the word means to them, it is not what the word meant to the
Founders. The term is from Latin, and it translates as "defense
activity". In the idiom of the era, a word for an activity could also be
used to refer to those engaged in that activity, and that usage is the
source of the confusion here.

There is also a misrepresentation of the meaning of the word "state",
which, when used in the context of the Constitution, does not mean the
government of the state, but the people of the state, whether they acted
through a government or not. When the Founders referred to a state
government, they used the term "state legislature".

The authors are correct in their thesis that the right to arms is tied
closely to the duty of militia. However, they commit a logical error in
concluding that if the duty is being neglected, the right disappears.
The duty is indeed being neglected, but the duty continues, a duty that
arises out of the social contract that created the society and the
natural rights and duties of mutual defense of rights that are the terms
of the social contract.

The duty, and the right to perform that duty, continues, regardless of
whether it is being actively performed or not. In fact, it is being
performed by millions of civilians every day, in thousands of ways.
Every time anyone reports a crime, conducts his own criminal
investigation, or makes a civilian arrest, that is militia. Any time
anyone defends himself or another from injury, that is militia. Any time
anyone asks others to join him in defending the community from any
threat, that is a militia call-up. We are all militia, when we engage in
militia, even when we act alone. There is no need for initiation or

leadership by some official. Of course, sheriffs are supposed to be the
militia commanders of their counties, and constables militia commanders
of their wards or precincts, but if they neglect to perform that duty,
the duty falls upon anyone present who is aware of a threat requiring
defensive action, or preparation for such defense.

For more on this topic see http://www.constitution.org/cs_defen.htm .

The language in this book is verbose, hard to read, one almost has to be a college professor to understand it. Once you do get through it, you find that the authors, while putting forth facts about the concerns between maintaining a militia and not having a large standing army, totally ignore facts that show that the intent all along, of both federalists and anti-federalists, was to protect a pre-existing, God given right of individuals to keep and bear arms, for any reason, including hunting and self-defense, but most importantly to resist a potentially tyrannical government. They also repeat standard gun control arguments, e.g. the word "bear" only had a military context when it came to firearms, even though the minority report from Pennsylvania expressly requested an amendment that would protect the individual's right to "bear" arms for hunting. Such is the nature of books with an agenda, spinning facts and propagating half-truths and lies.

The authors go astray in failing to understand the term "militia" as it was used by the Founding Fathers. In his NOTES ON THE STATE OF VIRGINIA, for example, Thomas Jefferson wrote of "our militia, that is, of the males between 16 and 50 . . . ." A well-armed militia could be called into state or federal service to repel an invasion, and could also be used to protect the rights of the people against oppression by their own government.

The Second Amendment provides: "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." The first 13 words provide an explanation of (one reason) why the remaining 14 words were written -- but the unambiguous guarantee of the Amendment is that ". . . the right of the people to keep and bear Arms, shall not be infringed." "The people" refers to "We the People of the United States . . . ," as opposed to the use of "person" (e.g., in the Fifth Amendment) to encompass not only "the people" but also aliens within our territory. The Framers could easily have written "the right of members of the organized Militia to keep and bear arms shall not be infringed." They did not say that. They said "the right of the people to keep and bear Arms, shall not be infringed."

One might well wish to argue that the existence of a well regulated U.S. Army, Navy, Air Force, and Marine Corps in the 21st Century undermines the logic that "A well regulated Militia" is "necessary to the security of a free State" -- and use that premise as a foundation for arguing that the Second Amendment ought to be repealed. But it is dangerous for people to accept the argument that "well, things have changed since 1789," and thus we should ignore the clear language of the Bill of Rights. The Constitution guarantees that ". . . the right of the people to keep and bear Arms, shall not be infringed." If we conclude that the foundation for that right is no longer applicable -- the American people will never face a threat in which individuals will need to rise up and defend themselves or their families from foreign aggression or domestic repression -- and thus undermine one of the most fundamental guarantees of the Bill of Rights, we may set a precedent for undermining other provisions of that instrument.

For example, the Founding Fathers knew nothing about airplanes or weapons of mass destruction. So today we are engaged in a struggle against Islamic terrorism, during which in a single day 3000 innocent people were slaughtered when airplanes crashed into the twin towers. Had they been alive today, it might be argued, there is no reason to assume that the Founding Fathers would not agree that the teaching of Islam should be prohibited within the United States, so we should not allow the antiquated language of the First Amendment to keep us from doing what we "know" is right. And certainly the Founding Fathers would not have condoned "hate speech," and it was just an oversight that they did not mention it as an exception to the guarantees of freedom of speech and of the press. Once we start giving up our rights on the premise that "things have changed" and perhaps the Founding Fathers would have felt differently were they alive today, we have started down a dangerous slippery slope.

Were the Founding Fathers "gun nuts?" In the eyes of some 21st century Liberals, perhaps so. In a 1785 letter to his nephew Peter Carr, Thomas Jefferson wrote: "Let your gun, therefore, be the constant companion of your walks." In his June 1776 DRAFT Constitution for Virginia, Jefferson included (prior to a clause providing "Printing presses shall be free" language declaring "No freeman shall be debarred the use of arms."

The right of "self-defence" was important to the Founding Fathers. In a July 1811 letter to Republican editor William Duane, Jefferson wrote: "Spain, under all her disadvantages, physical and mental, is an encouraging example of the impossibility of subduing a people acting with an undivided will. She proves, too, another truth not less valuable, that a people having no king to sell them for a mess of pottage for himself, no shackles to restrain their powers of self-defence, find resources within themselves equal to every trial. This we did during the Revolutionary war, and this we can do again, let who will attack us, if we act heartily with one another. This is my creed. To the principles of union I sacrifice all minor differences of opinion. These, like differences of face, are a law of our nature, and should be viewed with the same tolerance . . . ."

This book is part of a large body of scholarship designed to dismiss the right of the American people to keep and bear arms on the assumption that the "Militia" was merely the organized National Guard of each State, and the very clear language "the right of the people to keep and bear Arms, shall not be infringed" REALLY is but a "collective" right of each state to have a National Guard -- whose members may carry arms while in training or when called to active duty. Whatever one might think about guns and gun owners, such a free-wheeling approach to constitutional interpretation ought to worry anyone who cherishes our Bill of Rights. Repeal the Second Amendment if you like (and can get the votes); but don't pretend the Framers did not mean what they clearly said.

This is a must read for anyone who really wants to understand the truth about the second amendment.The authors present an impressive amount of historical research to show that the second amendment protects an individual right to bear arms only in connection with an organized citizen militia. Some have claimed that the second amendment protects an unconditional right to bear arms. However, an objective examination of history, reveals that this notion is undoubtedly false. The term "bear arms" referred to military service at the time of the writing of the second amendment. When deciding on the language of the second amendment, the first congress debated whether conscientous objectors should be exempt from bearing arms. Obviously, they weren't talking hunting or using guns to defend one's home against criminals.

This book seeks to balance two predominant schools of thought regarding the Second Amendment: The individualist school and the collective rights school. Uviller and Merkel's thesis is that the right to bear arms was an individual right, but only within a collective context of service in a state sanctioned, regulated and disciplined militia. The book has it right. Uviller and Merkel are well researched. This book is not a polemical such as Halbrook's "That Every Man Be Armed" - it is historical scholarship. A must read for anyone who seeks a scholarly and objective, as well as balanced approach to the understanding of the Second Amendment.