The Second Amendment

[Emsworth]

The argument that the Second Amendment protects only "select groups of citizen soldiers" acting under the authority of the states is nothing but the product of modern activism. The text makes it clear that the right to bear arms is a right of the people, not merely a right of "select groups of citizen soldiers."

The view that the right to bear arms is a right of all the people, not of a "select group," is historically justifiable. The Constitution of Massachussetts stated, "the people have a right to keep and to bear arms for the common defence." The original Constitutions of Pennsylvania and Vermont provided, "the people have a right to bear arms for the defence of themselves and the state." The original Constitution of North Carolina stated, similarly, "the people have a right to bear arms, for the defence of the State."

The right to bear arms, furthermore, is no less complete than any other right secured by the Constitution. It has been asserted by some liberal constitutional scholars that the government may regulate the bearing of arms in any way it sees fit, as long as it does not completely prohibit their possession. But apply this line of reasoning to any other constitutional right, and these very same scholars will have an apoplectic fit. Can it be said that the government may regulate speech in any manner it pleases, as long as it does not completely prohibit speaking? Can it be said that the government may regulate the press in any manner it pleases, as long as it does not completely shut down newspapers?

In Bliss v. Commonwealth (1822), the Supreme Court of Kentucky even went so far as to strike down a state prohibiting the concealed carrying of arms. Its holding, of course, was under the state Constitution, but the provisions of the Kentucky Constitution with regard to the bearing of arms are not very different from those of the Second Amendment. It held:

"The provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state... But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden."

The courts have attributed highly implausible etymologies to the word "militia," and have effectively stricken the Second Amendment from the Constitution. For reasons which I cannot fathom, the right to bear arms (explicitly guaranteed by the Constitution) is deemed much less important than the right to privacy (which has no constitutional basis at all). It does not seem to have occurred to the Supreme Court that the right to protect one's life might be at least as important as the right to protect one's privacy.

[Emsworth]

What the Constitution says is 'militia.' That doesn't tell us what militia means. The federal Bill of Rights is based on the Virginia Declaration of Rights, which defined militia as the populace, trained in arms, not a select group of citizen-soldiers. This was also the definition of militia entertained by Madison, as well as the Father of the Bill of Rights himself, George Mason.

A fairly reasonable textualist argument could be made in support of defining the militia as the whole populace, rather than a select group of citizen-soldiers.

Article I, Section 10, Clause 3 declares, "No State shall, without the Consent of the Congress ... keep Troops." What is the difference between a "select group of citizen-soldiers" and "Troops"? Of course, there is no distinction. They are exactly one and the same.

If a militia is only a select group of citizen-soldiers, it would follow that no militia may be maintained without the consent of Congress. However, such a result would contradict Article I, Section 8, Clause 16, which entrusts the government of the militia (when not in the national service) to the states. The clear implication is that militias may be maintained in the first place, without congressional approval. When the Constitution specifically declares that a militia is "necessary to the security of a free State", can anyone claim that a militia's existence is dependent on the consent of Congress?

Thus, if we accept the premise that a militia is a select group of soldiers maintained by the state government, we reach the illogical conclusion that no militia may exist without Congress' permission. Hence, by reductio ad absurdum, one may establish that a militia is not a select group of soldiers.