Thursday, December 27, 2012

What's the deal with "a well-regulated militia"?

In his opinion in DC v. Heller, which ruled that the Second Amendment guarantees the individual right to keep and bear arms, Justice Scalia essentially ignores the first clause of the amendment: "A well-regulated militia being necessary to the security of a free state..."

I was teaching a class in the History of the U.S. Constitution this fall and we puzzled over this amendment. One of my students opined that it was intended to give the people the right to organize militarily against their own government. I think that's the standard view of many assault-weapons supporters; but it seems clearly crazy to incorporate a right of sedition into a document designed to create a more perfect union, particularly just four years after the trauma of Shays' Rebellion, which demonstrated the need for a strong central government in the first place.

So, if we at least provisionally take off the table the idea that the Second Amendment was designed to protect the right of insurrection, what are we to make of the militia language?  What did the founders mean about the militia being necessary to a free state? Why might a lot of Americans be worried that the new federal government might try to suppress militias?
Proclamation Line of 1763

Let's look at who the militias of the 1780s were created to defend against. Anyone? Anyone? Bueller? Right: they were formed by western settlers who kept pushing into Indian and Spanish territory and provoking retaliatory raids by the locals. Not surprisingly, the Congress found this activity annoying because they couldn't control it, and it destabilized relations with our neighbors. The settlers were worried that the new federal government might want to sign treaties with the bordering tribes and European colonial powers and try to force them out--just as the British had tried to do to enforce the Proclamation Line of 1763 after the French and Indian War. There was no way the Western settlers were going to support a central state that could take away their lands.

This is the best way to understand the totality of the Second Amendment in its own context, I would argue. The frontiersmen of 1788 stood in roughly the same relation to their government as the Israeli settlers on the West Bank: on the one hand, they were the tools of the policy of the state; on the other, their homes were in constant potential danger if the state decided to change that policy.

And, as Joseph Ellis reminds us in American Creation, the state did intend to rein the settlers in:  "the leadership of the new national government created by the recently ratified Constitution declared its determination to avoid a policy of Indian removal at almost any cost" (p. 128).  But Amendment II to the Constitution essentially took the government's ability to prevent it off the table from the outset.

How do we know the Second Amendment was not about individual gun rights? Imagine if the Israeli government proposed to take away the settlers' guns. Given the security conditions on the West Bank, or really throughout Israeli territory, such a proposal would be literally unthinkable. The same situation existed in the early republic. Nobody passes a law to prevent something that nobody would ever propose. That's why you have to take the militia clause of the Second Amendment seriously.

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