What does the Constitution mean by “a well regulated militia”?
This is a question that has been argued for generations, and the fate of one of Americans’ sacred rights could hinge on how it is ultimately understood.
In recent years, progressives have become quite taken with the argument that the opening phrase of the Second Amendment, “A well regulated militia being necessary to the security of a free state…” ought to be taken to mean that the right to bear arms is bound up directly with, and subject to, the militia. In other words, ordinary citizens are not the ones who are supposed to have the right to bear arms, but only members of the militia. Many progressives preen over this particular line of reasoning, delighted they have hoisted constitutional originalists on their own petard, so to speak.
Yet that argument is vacuous to the point of absurdity, and crumbles at the slightest scrutiny. Indeed, a militia, by definition, must have arms with which to perform its duty. So why would the framers of the Constitution feel it necessary to assert that defenses are important and that the militia should be armed? Clearly, that is not what they were talking about.
Furthermore, the Second Amendment is more clearly written than these progressives and statists want us to believe. The full text of the Second Amendment is simply, “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.” Understanding the full text reveals that the much-ballyhooed “Well regulated militia” is simply the subject of a prefatory phrase to the actual right the Second Amendment is institutionalizing.
It’s simple grammar.
But if high school grammar is too difficult for our progressive opponents, we can look to the rest of the amendment, which speaks of the “right of the people” to keep and bear arms. “The People” are mentioned many times in the Constitution, and always has the same meaning: the everybody in the United States. Antonin Scalia made this point beautifully in one of his finest opinions.
“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”
The simple fact is that the right to bear arms is clearly and concisely protected in the Constitution. Perhaps if the framers had known the study of grammar and language would have fallen so embarrassingly, they might have written it in an even clearer form. Yet their intention could not have been clearer. Across the political spectrum, virtually all of the founding fathers, from Thomas Jefferson to Alexander Hamilton, the founder most in favor of big government and a standing army, there was no disagreement over the reality of this right.
In fact, they understood the militia as a body including every able-bodied man. In an influential tract known as Letter from a Federal Farmer 18, likely author Richard Henry Lee laid out the dominant understanding of “the militia.”
“[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.”
Today we face growing challenges to our rights and freedoms. As power is absorbed by a federal government heedless of the founding document that gives it life and legitimacy, Americans who still believe in the spirit and words of the Constitution must be ever-ready to stand in defense of their freedoms. For if we fail to defend our rights, they will not long survive.
- The Case for Restoring the State Militia System - June 16, 2016
- The Militia, the People and the Right to Bear Arms - May 9, 2016