“The Militia Of The Several States” Guarantee The Right To Keep And Bear Arms
Part 5

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Continuing the analysis of the Militia in the Constitution begun in PART ONE, PART TWO, PART THREE, and PART FOUR of this commentary, we turn to…

6. The principles of “the Militia of the several States” compared with today’s “gun control”. The contrasts between the proliferation and dispersion of firearms and ammunition among the vast mass of the people in pre-constitutional times, and the contemporary political campaign to restrict to the point of total prohibition the private possession of firearms by common Americans, are stark, striking, and to any constitutionalist sickening. For example–

    THEN: The armed people constituted, and understood themselves to be, an important component of the government; their possession of firearms was a governmental as well as a personal duty and right; and their arms were the very symbols and instruments of their legal authority.
    NOW: The severe limitations on, or even prohibition of, private possession of firearms proposed by “gun controllers” separate “the government” (and its armed minions) from everyone else, creating a dangerous dichotomy between “the rulers” and “the ruled” that must inevitably widen into an antagonistic rift between “us” and “them”.

    THEN: Possession (and usually ownership) of firearms was near-universal and compulsory among free men. Almost every able-bodied free man was required to be armed. Only a few exemptions excused men from mustering and training, and only the claim of conscientious objection excused any free man from possessing firearms.
    NOW: The goal of “gun controllers” is to render possession of firearms minimal and highly selective–confined to the armed forces, the police, and the specially privileged among the political elite. Only a vanishingly few, if any, exemptions will allow common Americans to possess firearms for any reason.

    THEN: The government supplied firearms to the poor, or assisted them in procuring firearms for themselves in the free market.
    NOW: “Gun controllers” demand that the government disarm as many people as possible, and seek to make commerce in firearms prohibitively expensive and cumbersome for common Americans, thereby disproportionately burdening the poor. (The rich and powerful will always have ready access to firearms, if not in their own hands then in the hands of private security personnel.)

    THEN: Disarmament by force of law was limited to actual or potential enemies–hostile Indians, unruly slaves, or disloyal citizens–or to conscientious objectors, who disarmed themselves for their own reasons of conscience. Individuals exempted by age, disability, office, profession, or trade from active service in the Militia were never disarmed. The purpose of laws pertaining to firearms was to promote the widespread possession of firearms.
    NOW: The ultimate goal of “gun controllers” is to disarm everyone under color of law, except the armed forces, the police, and the politically privileged. The purpose of “gun laws” is to limit or prohibit common Americans’ possession of firearms to the maximum degree politically possible.

    THEN: Licensing and registration of firearms were superfluous. Because the Militia Acts required almost every able-bodied free man to be armed, everyone knew that most everyone else possessed one or more firearms. Nevertheless, regular inspections were conducted in order to insure that everyone actually possessed the firearms and ammunition the laws required. But no Militia Act ever required licensing, registration, or even inspection of firearms other than Militia firearms.
    NOW: “Gun controllers” propose registration of every kind of firearm (including even air rifles) as the step preliminary or corollary to licensing, which is the step preliminary to prohibition. Searches and seizures will be conducted to ferret out people who are not licensed, and to discover firearms slated for confiscation and destruction.

    THEN: Almost every able-bodied free man was required to possess firearms and ammunition of the same type and effectiveness as the regular army fielded. Moreover, because everyone was armed, and knew how to use his firearms, the Militia vastly “outgunned” the army, and even more so the sheriffs, constables, and all other public officials who performed duties of a police nature.
    NOW: “Gun controllers” seek to deny common Americans firearms of most modern military types, as well as all other firearms that could be employed effectively to oppose armed forces or police in the service of usurpers and tyrants. On the plea that the people must not be permitted to “outgun” the police (let alone the armed forces), “gun controllers” demand prohibition of private possession of semiautomatic “assault rifles” (full automatics being already regulated to near extinction), semiautomatic rifles of any configuration, .50 BMG caliber rifles, “sniper rifles” (that is, accurate rifles with optical sights)–and some day soon even the lever-action carbines that John Wayne made famous in his Westerns, when they discover how effective those guns can be in the hands of well-trained men.

    THEN: No Militia Act or other law prohibited private ownership or possession of firearms other than Militia firearms. Even muskets or rifles possessed, and useful, solely for hunting or sport were within every free man’s right.
    NOW: “Gun controllers” contend that “the right to keep and bear Arms” includes only firearms with a provable “sporting” or “recreational” purpose, but not firearms of military types. They also assert that, “right” or no “right”, even “sporting” firearms ought to be licensed, registered, prohibited, and confiscated (doubtlessly because they realize that any “sporting” firearm can be used for a military purpose in the hands of a guerrilla, partisan, or resistance fighter).

    THEN: No Colony or independent State employed exorbitant taxes to impose financial disincentives on the private possession of firearms. To the contrary: many Militia Acts exempted firearms from seizure and sale for the payment of private debts or taxes.
    NOW: The first major Congressional “gun law” (still on the books after some 70 years) uses taxes to burden and inhibit private commerce in fully automatic and other types of firearms.

    THEN: No Militia Act prohibited any free man from purchasing or possessing “too many” firearms, or “too much” ammunition. To the contrary: almost every free man was required to have at least one firearm and some minimum quantity of ammunition in his possession at all times.
    NOW: “Gun controllers” promote statutes restricting private purchases to “one gun a month” (or some other such formula), as well as so-called “private-arsenal laws” that limit, or impose punitive taxes based on, the number of firearms or amounts of ammunition an individual possesses.

    THEN: No Militia Act ever required that firearms and ammunition be kept away from all Militiamen in governmental arsenals until distributed by public officials for musters or training, and later collected again for storage.
    NOW: “Gun controllers” seek to prohibit the private possession of firearms, except when handed out from government arsenals to licensed individuals for “sporting” purposes, then to be taken back and secured under lock and key.

    THEN: Almost every able-bodied free man from 16 to 50 or 60 mustered and trained with firearms on a regular basis.
    NOW: “Gun-free schools” instill a fear and hatred of firearms in children from the earliest age. Rather than being educated as to the social and political necessity for citizens to keep and bear arms, and trained to use firearms safely and effectively, children are being conditioned to react to all firearms in private hands as a threat.

    THEN: No Militia Act specified that Militia firearms were not to be borne at times and places other than musters and training, or that firearms other than Militia firearms were not to be borne in any particular places or at any particular times.
    NOW: Public and private “gun-free zones” are metastasizing across America like melanoma.

    THEN: No Militia Act prohibited or penalized self-defense with Militia firearms, or with firearms other than Militia firearms.
    NOW: A homicide committed with a firearm in self-defense often results in an indictment for murder, massive fees and costs for legal defense, notoriety in the media, and psychic trauma, even if the charges are proven specious and the defendant is acquitted. The “gun controllers'” goal is to outlaw armed self-defense entirely (as has been tried in England), as another reason for a complete confiscation of privately owned firearms–because who needs the means if the end is prohibited?

    THEN: The near-universal private possession of firearms was recognized as the precondition for freedom–as the Second Amendment says, “[a] well regulated Militia, being necessary to the security of a free State”.
    NOW: The near-universal private prohibition of firearms must inevitably result in exposing most Americans to the “due Subjection and Obedience” of slavery. Is it possible that the proponents of such a prohibition do not understand this? And if they understand it, that they do not desire it?

Given that the principles of the pre-constitutional Colonial and State Militia, as found in every Militia Act from the mid-1600s to the late 1700s, define “the Militia of the several States” and their legal characteristics for all constitutional purposes–and given that, with respect to “the right of the people to keep and bear Arms”, the Constitution has not been amended since the Second Amendment was ratified to guarantee that that right “shall not be infringed”–and given the plain contradictions between the principles of “the Militia of the several States” and the goals of contemporary “gun controllers” just illustrated–and given that the success of “gun control” will hasten the end of a free America–how then can contemporary “gun control” be rationally defensible, let alone the subject of legislation that the judiciary all too often sustains?! How, indeed, is the promotion of contemporary “gun control” not a criminal activity, and the people who promote it not participants in a criminal enterprise?

7. The relation of the Second Amendment to the Militia Clauses of the Constitution. Whether or not Alexander Hamilton and his co-thinkers were correct to dismiss the Bill of Rights as unnecessary and superfluous, the foregoing PARTS of this commentary prove that the Second Amendment must be interpreted in light of and consistent with–even simply as a restatement, amplification, or emphasis of–the original Militia Clauses of the Constitution.

The skeptic may object that, whereas the Second Amendment speaks of “the right of the people to keep and bear Arms”, the Militia Clauses do not speak of any such right at all. So that, if “the right of the people to keep and bear Arms” has any explicit constitutional protection, the Amendment must be its locus. That contention forgets, though, that if the Constitution delegates no power to the General Government to interfere with “the right of the people to keep and bear Arms”, or delegates a power solely to promote that “right” under some other terminology, then no explicit guarantee is necessary, in the Bill of Rights or anywhere else.

True enough, the Second Amendment does refer specifically to “the right of the people to keep and bear Arms”. But what “right” does it mean? The Amendment itself does not create that “right” out of whole cloth, specifying its particulars. So what is the source of “the right of the people to keep and bear Arms”? What is its content? And who may exercise it? The Amendment contains neither derivation, nor definition, nor explanation. To comprehend the nature and scope of the Amendment therefore requires recourse to more than simply its words. That, however, poses no insuperable problem. “That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution… what is reasonably implied is as much a part of it as what is expressed.” Dillon v. Gloss, 256 U.S. 368, 373 (1921).

The implicit reference, of course, must be to “the right of the people to keep and bear Arms” that preexisted the Second Amendment–not just “a right”, or “some right”, with but vague contours–but “THE right” with which every American of that era was perfectly familiar, which most of them personally exercised, and which all of them would then have understood as the Amendment’s subject. And because the Constitution, too, contains no definition of that “right”, “the right” to which the Second Amendment refers must be the selfsame “right of the people to keep and bear Arms” that preexisted the Constitution.

What was (and still is) this “right”? To answer that question requires application of the principle that the language of the Constitution “has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used”. Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930). “[W]e must… place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of [its provisions].” South Carolina v. United States, 199 U.S. 437, 450 (1905). Accord, Ex parte Bain, 121 U.S. 1, 12 (1887).

The only “right of the people to keep and bear Arms” that appears throughout 150 years of pre-constitutional Colonial and State history in the statutes of the times–the highest form of legal evidence–is the right (and correlatively the duty) of the people to keep and bear arms that constituted one of the main principles and practices of the Militia. This right and duty are necessarily implicit in the Constitution’s recognition of “the Militia of the several States”, because self-evidently the Militia cannot exist without them. And the Second Amendment confirms this link in unmistakable terms, when it ties “the right of the people to keep and bear Arms” with “[a] well regulated Militia”. For no one can doubt that “well regulated Militia” were what every Colonial and State Militia Act mandated for almost 150 years prior to ratification of the Constitution.

The skeptic, however, may object that the Militia Acts recognized only a duty to keep and bear arms, not a right, and that even this duty was merely statutory in nature, not natural or inherent. On analysis, this criticism collapses.

First, the duty the Militia Acts imposed on almost every able-bodied free man to be armed necessarily encompassed every man’s right to be armed. Self-evidently, if an individual has a legal duty to be armed, then no public official (or private citizen, for that matter) can have a legal power and privilege to interfere with the individual’s performance of his duty. Which means that, as against all public officials, each such individual has a legal right to be armed as the statute provides. And if that statutory duty actually derives from some higher law, as a consequence of its being a natural and inherent duty, then so does the concomitant right.

The highest source of the law on this subject is the injunction: “Thou shalt love the Lord thy God, and thy neighbor as thyself.” The right of the individual to defend himself becomes, upon his assumption of familial responsibilities, the duty to defend the members of his own family. His justifiable love of self that compels him to protect his own existence must extend to them, too. In like wise, in any organized community that recognizes a mutual self-interest among its members, if any citizen may claim a right to expect defense from all, in fair compensation he must fulfill a concomitant duty to assist in the defense of everyone else. Given their source, to contend that this reciprocal right of self-preservation and duty of mutual protection are not natural and inherent within society–as a consequence of its being “society”, rightly understood–lacks cogency.

The Founding Fathers’ legal mentor, Sir William Blackstone, made the same point in terms of the specific laws of England. After identifying “the principal absolute rights which appertain to every Englishman”–namely, “the rights of personal security, personal liberty, and private property”–he explained that

    in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the [English] constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights… . Commentaries on the Laws of England (American edition, 1771), Volume 1, at 140-41.

Among these “auxiliary rights” of Englishmen, Blackstone explained,

    is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which… is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

    In these… consist the rights, or, as they are frequently termed, the liberties of Englishmen; liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man… lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other…. And… to vindicate these rights, when actually violated or attacked, the subjects of England are entitled… to the right of having and using arms for self-preservation and defence.

Ibid. at 143-44.

The pre-constitutional Colonial and State Militia Acts put into practical form “the [English] right of having and using arms for self-preservation and defence”–while showing how different from its practice in England the “public allowance, under due restrictions” was in America. Unlike the situation in England, in America firearms were not only “suitable” for all men (excepting slaves), no matter their “condition and degree”, but also requisite. And “such [firearms] as were allowed by law” included the most modern military-type arms then available in the free market. Thus, in America “the natural right of resistance and self-preservation” not only existed but also suffered no “due restrictions” in positive law. Rather, the Militia Acts extended it into a nearly universal duty. Such an extension of “the natural right of resistance and self-preservation” could not change its innate character, however, only transmit that character to its correlative duty.

That “the right to keep and bear Arms” is a natural right and duty the Declaration of Independence confirms. Through that document, the States “assume[d] among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them”. That this could be accomplished, according to the principles of “the Laws of Nature and of Nature’s God”, in no way except through exercise of “the natural right of resistance and self-preservation” the Declaration makes clear: “[W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce the[ people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” That the Declaration couples “it is their right” with “it is their duty” cannot be nothing more than a slip of the pen.

Moreover, if the States’ independence–and, as a consequence of that, their power to enact their own constitutions, statutes, and other laws, binding on their own people–derived from “the Laws of Nature and of Nature’s God”, then, as a condition of their legitimacy, those constitutions, statutes, and other laws themselves must conform to “the Laws of Nature and of Nature’s God”. Which means inter alia that they must recognize, embody, protect, and empower “the natural right of resistance and self-preservation”, and its corresponding duty.

Even if one humors the skeptic by imagining that, all this legal theory and history notwithstanding, pre-constitutional Colonial or State legislatures might have denied the individual right and duty to keep and bear arms in part or in whole, nothing changes. Because in fact those legislatures never did, or even attempted to, deny that right and duty. A failure ever to exercise a supposed power is convincing evidence that no one in authority ever believed that such a power existed. FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513 & n.20 (1949). Similarly, whether or not the Constitution might not have recognized the individual right and duty to keep and bear arms, in fact the Constitution does recognize them, because it recognizes “the Militia of the several States”, all of which for 150 years were based on the principle of near-universal possession of firearms by private individuals.

By recognizing “the Militia of the several States”, the Constitution imposes a permanent duty on nearly all Americans to serve therein, according to the principles the pre-constitutional Militia actually put into practice. One part of that essentially governmental duty is to be armed, a responsibility emphasized and effectuated by the power (and duty) of Congress “[t]o provide for… arming… the Militia”. Article I, Section 8, Clause 16. Every individual subject to the constitutional duty to be armed in “the Militia of the several States” necessarily enjoys a constitutional right as against every public official not to be hindered, and (through Clause 16) a constitutional right to be assisted, in the performance of that duty. No statute, executive action, or judicial decision can possibly change that. Therefore, the “right of the people to keep and bear Arms” is ABSOLUTE, because it is the consequence or corollary of a constitutional duty that applies both to the people and to every public official. Indeed, to argue that any other part of any government at any level may disarm the one branch of the government that the Constitution itself specifically requires to be armed is self-contradictory nonsense.

The absolute nature of “the right of the people to keep and bear arms” is precisely what one would expect from the Second Amendment’s precept that “[a] well regulated Militia, [is] necessary to the security of a free State”. As American history teaches, “[a] well regulated Militia” is composed of an armed people. That being so, “the security of a free State” requires, and for all practical purposes must be equated with, an armed people. Therefore, “a free State” is one in which everyone possesses his own firearms, knows why he is armed, opposes every attempt to disarm him, and with his arms and training fulfills his duties to provide “security” in just proportion with everyone else. As a consequence of this, in “a free State” public officials have no legal authority whatsoever to disarm the people through general “gun control”. So, in “a free State”, “the right of the people to keep and bear Arms” must be absolute, because anything less than an absolute right could not provide adequate “security”. Anything less than an absolute right would always enable a police state to develop, because the police would inevitably end up “outgunning” common citizens (as is the obvious goal of “gun controllers” today).

From all this, several important conclusions follow–

    * “[W]ell regulated Militia” are organized and operate according to the historic principles of “the Militia of the several States”. That is, nearly everyone in the community is required to be armed, trained, and assigned definite duties for the provision of “homeland security” as component parts of the government. In this structure, arms are the key component, because training for the use of arms is useless without the arms, whereas armed men can often acquire training even “on the job” through the use of their arms.
    * “[T]he right of the people to keep… Arms” is a right of private possession (and usually ownership, too) of firearms and ammunition in individuals’ homes, ready and available for use at all times, rather than stored away in government arsenals to be handed out only when some public officials deem it necessary. Private possession is absolutely necessary for “the security of a free State”, because only private possession can maximize both readiness and deterrence–particularly against usurpers and tyrants, who historically have proven the most dangerous threats to every “free State”.
    * “[T]he right of the people to… bear Arms” encompasses, at the minimum, the freedoms to go abroad individually, and to assemble, with arms for all Militia purposes (the first being necessary to the second). The reasons for this are obvious: The Militia operate through individuals with arms in their hands. In the nature of things, most Militia operations must occur outside of individuals’ homes. The awareness on the part of potential criminals, terrorists, usurpers, and tyrants that untold numbers of Militiamen are or could be carrying firearms, openly or concealed, in public and private places deters anti-social action. So every single individual who might carry a firearm outside his home thereby performs part of a vital Militia function.

      Furthermore, because the Constitution requires Congress “[t]o provide for… arming… the Militia”, and prohibits the States and their subdivisions from interfering with the fulfillment of Congress’s duties, governments at all levels must recognize, facilitate, and protect this activity–by eliminating almost all “gun-free zones”, providing the widest latitude for private individuals to carry firearms both open to common observation and concealed, and so on.
    * The “Arms” the people may “keep and bear” include all firearms that could serve Militia purposes–from the firearms appropriate for a regular light infantryman, to whatever arms might prove useful for someone performing the functions of a policeman or security guard, or a guerrilla, partisan, franc-tireur, or resistance fighter.
    * “[T]he people” who enjoy “the right… to keep and bear Arms” includes all common Americans. No exclusion can exist on the basis of servitude (Amendment XIII), race (Amendment XIV, Section 1), sex (Amendment XIX), or any but the most serious legal disability, such as proven disloyalty or the commission of a crime for which slavery or involuntary servitude is an appropriate penalty.

      Moreover, no one can be denied “the right… to keep and bear Arms” simply because he is not sufficiently “able bodied” to serve in the Militia. This is not only because what constitutes being “able bodied” turns upon the service to be performed, which is a matter that depends upon evaluation of person, time, place, and circumstances, rather than application of an arbitrary label; but also because no pre-constitutional Militia Act ever disarmed any free man simply because he was not “able bodied”. If not being subject to serve in the Militia because of some physical disability did not disqualify a free man from possession and ownership of firearms independent of the Militia then, it cannot do so now. To the contrary: That a physical disability never disqualified a free man in pre-constitutional times from possession and ownership of firearms proves that “the right of the people to keep and bear Arms” was not then considered solely a consequence of service in the Militia, but instead was always understood as a precondition for forming the Militia in the first place.
    * “[T]he right of the people to keep and bear Arms” in and for the purposes of “[a] well regulated Militia” does not define the full extent of that right. For, plainly, firearms suitable for use in the Militia can be used–and where the Militia are properly functioning are always at hand to use–for personal protection, hunting, target shooting, or other “sporting” or “recreational” pastimes. Besides the facts that personal protection is, at base, a Militia use at the individual level, and that most other normal uses of firearms sharpen the users’ skills for Militia use, no pre-constitutional Militia Act ever disallowed such uses for Militia arms.
    * The Second and the Thirteenth Amendments work together to outlaw general “gun-control” legislation by both the General Government and the States. A people held in slavery live in the very opposite of “a free State”. General “gun control” enforced against innocent individuals is the antithesis of “[a] well regulated Militia”, because it makes the existence of such a Militia impossible. Because “[a] well regulated Militia, [is] necessary to the security of a free State”, in its absence such a State cannot survive. Therefore, general “gun control” must be unconstitutional, as a means to impose or maintain slavery. And assuming for purposes of argument that some “compelling interest test” were relevant, no level of government can assert any “compelling interest” in imposing general “gun control”, because the only constitutional “interest” that justifies slavery or involuntary servitude is “as a punishment for crime whereof the party shall have been duly convicted”.
    * The Second and the Fourteenth Amendments also work together to outlaw general “gun-control” legislation by the States, for two reasons. First, Section 1 of the latter Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”. Among those “privileges and immunities” is “the right… to keep and bear Arms”. See Scott v. Sandford, 60 U.S. (19 Howard) 393, 449-50 (1857). Another is the “immunit[y]” from slavery or involuntary servitude “except a punishment for crime”. So the Privileges and Immunities Clause bans all general “gun-control” legislation.

      Second, Section 1 of the Fourteenth Amendment also provides that “[n]o State… shall deprive any person of… property”. A principle of the pre-constitutional Militia Acts–and therefore of “the Militia of the several States”–is each individual’s actual ownership of a firearm (where within his personal financial capability), as well as his possession thereof. So no conceivable “due process of law” could justify expropriation of Militia firearms individuals own, because to do so would necessarily destroy “the Militia of the several States”, the permanence of which the Constitution presumes. Self-evidently, no State or local government can assert any “compelling interest” in enacting legislation that cannot amount to “due process of law”.

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). His latest book is: How To Dethrone the Imperial Judiciary.