Progressives at the state and federal level are rushing to enact legislation that would ban firearms they claim are “military type” weapons. If they want to classify these weapons as “military type” firearms, then they have a problem, irrespective of the Second and Ninth Amendment, because a militia clause in the body of the Constitution bars them from enacting any general ban on these weapons.
The Militia Debate—Arming the Militia
During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration:
“To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-
Mr. King “by way of explanation…the Committee meant…by arming, specifying the kind size & caliber of arms….”
Mr. Madison “observed that ‘arming’ as explained did not extend to furnishing arms….”
Mr. King “added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury…”
There was no dissent from the Committee’s definition of the word “arming.” This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States.
Mr. King’s statement shows the intent of Clause 16 was to give Congress three (3) options for “arming” a State militia when called into federal service. First, Congress could require the individual to report with their personal military weapon. Second, it could require the militiamen to report with military weapons supplied and paid for by the individual State governments. Third, the federal government could supply and pay for the weapons.
This raises several interesting questions. How could citizens be constitutionally obligated to furnish their own military weapon, when called into federal service, unless there was an existing right to manufacture, purchase and posses such a weapon? And how could the States furnish arms to their militias unless they already possessed the “collective right” to arm their militias? According to organizations like The Brady Campaign, it took the so-called “collective right” Second Amendment, which was adopted 4 years after the Constitution was written, before the States and the members of their militias were “afforded” or “guaranteed” the right to keep and bear arms. As shown by Mr. King’s statement, these so-called rights existed prior to, and independent of, the Constitution or the Second Amendment.
A State cannot Negate the Arming Provision in Clause 16
Since the word “arming” in Clause 16 includes individual citizens providing their personal military weapon, independent of State control, no State can pass a general statute that negates or interferes with this constitutional provision. Thus, a general ban on “military type” firearms by a State is an unconstitutional encroachment on the exclusive power of Congress to prescribe the mode for arming State militiamen, when called into federal service, pursuant to Article 1, Section 8, Clause 16.
The Federal Government cannot Amend Clause 16 by Statute
A general federal ban on “military type” firearms would constitute a legislative revision of the Constitution because it would alter the arming provision enumerated in Clause 16. If members of the militia cannot purchase or posses “military type” firearms, then they cannot report when called into federal service with “military type” firearms. Thus, Congress would be modifying or removing one of the 3 options incorporated in Clause 16. That body cannot pass any statute that alters or defeats a constitutional provision. Since the Constitution can only be changed through the amendment process enumerated in Article V, the arming provision of Clause 16 supersedes any statute passed by Congress and prevents that body from negating it.
The Federal Government has no Authority over a State Militia when not in Federal Service
The only powers granted to the federal government concerning the militias of the several States, other than the power to call them into the service of the United States (Article 1, Section 8, Clause 15), are found in Clause 16. When not in the service of the United States, the federal government has ZERO authority over a State militia, their individual members, or their firearms. There is not a single provision in the Constitution that grants the federal government the power to prevent State militias or their members from acquiring and possessing firearms. In fact, Clause 16 specifically requires the States to maintain armed militias, independent of the federal government, because Congress can call them into the service of the United States at any moment and require them to be armed pursuant to Clause 16.
The Federal Government has no Power to Disarm a Militia or its Members
Federal control of the militias of the several States was the subject of heated debate in the individual State Ratifying Conventions. The following excerpts from the 1788 debate in the Virginia Ratifying Convention refute any assertion that Congress can disarm or prevent a State militia or its members from possessing “military type” firearms:
Mr. JOHN MARSHALL “The state governments do not derive their powers from the general government… The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away… But the power given to the states by the people is not taken away; for the Constitution does not say so. The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it. But there are no negative words here. It rests, therefore with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section. But what excludes every possibility of doubt, is the last part of it– that “no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary.”
Marshall’s remarks totally invalidate any general ban on “military type” firearms. He noted the Constitution (Art. I, Sec. 10, Cl. 3) forbids the States from engaging in war, “unless actually invaded, or in such imminent Danger as will not admit of delay.” The Constitution, through the above clause, authorizes the States to use their militia to engage in war without consulting Congress. How could the States, as noted by Marshall, engage in war to protect their borders if Congress had the power to prevent their militiamen from possessing a military type weapon? This State power is independent and separate from the powers delegated to the federal government concerning the limited use and control of a State militia.
As the debates continued, Marshall, who would later become Chief Justice of the United States Supreme Court stated:
“[T]hat the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been.”
Marshall noted that the States had the indisputable power to control their militias prior to the adoption of the Constitution and they retained that power unless they agreed to surrender it. As shown by Marshall, the States had the exclusive power to arm their militias independent of Congress, the Constitution, or any subsequent amendment. Thus, Congress cannot abrogate the right of members of a State militia to purchase or posses “military type” firearms.
If the federal government had the power to penetrate the sovereignty of a State and impose general bans on “military type” firearms, then it could disarm their militias and render them useless. This would be contrary to and in conflict with Article I, Section 10.
Who are the Militia?
Many Americans might be surprised to learn that they are, were, or will be a member of the militia under both state and federal law. For purposes of federal law, the composition and classes of the militia are defined in Title 10 of the United States Code, Section 311:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are-
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Since the National Guard of a State is a sub-component of the militia of the United States (i.e., State militias in the service of the United States), and members of the militia can be required to provide their own military weapon pursuant to Clause 16, a general “military type” firearms ban imposed by a State cannot be applied to an individual who meets the statutory definitions above.
In addition, every individual between the ages of 17 to 44 who meets the qualifications referenced above, and is not a member of the National Guard or the Naval Militia (organized militia), is a member of the unorganized militia of the United States. This means everyone from the 19-year-old college student to the 43-year-old doctor is subject to the “arming” requirement enumerated in Clause 16. Thus, there must be a general right to purchase and possess a “military type” firearm or this constitutional provision would be an absurdity.
Even if a State had the power to pass a general ban, it could not prevent individuals between the ages of 17 and 44 from possessing this type of weapon because they could be required to report for federal service with that weapon in hand. And since every State in the Union has a companion statute for their militia, and it exists independent of the Constitution or the federal government, Congress cannot ban these individuals from possessing a “military type” firearm. In fact, if a State passed a statute requiring their militia members to posses a military firearm, the federal government would not have the constitutional authority to stop them because that government has no power over a State militia or their members when not in federal service.
One Clause cannot Alter or Negate Another Clause
The federal government claims the Commerce Clause granted it the general power to regulate firearms. Even if this assertion were true, Congress cannot circumvent Clause 16 through the Commerce Clause because one clause of the Constitution cannot be invoked alter or negate another clause.
Irrespective of the pronouncements by legislators at the state and federal level, the right of citizens to possess a “military type” firearm existed prior to and independent of the Constitution or the subsequent adoption of the Second Amendment. The Framers of the Constitution embedded this right in the “arming” provision of Clause 16. Thus, neither government has the general authority to modify or negate it through a legislative act.