Many people today have written many things concerning the Second Amendment of the United States’ Constitution. I have decided to thrust myself into the fray after an invigorating discussion today with a friend. I will refer to them as “Friend” throughout so as to protect the innocent. They know who they are, the world need not.
The discussion began with talk about and explanation of HB 473 here in Utah. The first statement out of Friend’s mouth was: “The Second Amendment is not an individual right….” Let us first explore this in some detail.
You should know that I am a Constitutionalist, and an Original Meaning Constitutionalist at that. To further clarify, meaning that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.
The Second Amendment
As ratified in 1791, the Second Amendment reads:
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.
Here is a little history of the wording of the Second Amendment as first introduced in 1789:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. June 8, 1789 (See here)
It then was changed:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms. August 17, 1789(See here)
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. August 24, 1789 (See here)
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. August 25, 1789 (See here)
One more time:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. September 9, 1789 (See here)
And finally entered into the House journal and sent to the States for ratification:
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. September 21, 1789 (See here)
From what we read above, any half whit can see that a militia, as understood in 1789 consisted of the citizenry in a given State. So, as understood by any reasonable person in 1789, the Second Amendment is an individual right. Militias were to be used to protect the States from the Federal Government, should they (the Fed) turn into an autocratic tyrant, much like the one from whom we had just gained independence.
What is a Militia?
Friend then says, “But the State’s have a National Guard now, which constitutes a Militia. The Second Amendment guarantees the State the right to arm its National Guard.”
The Militia Act of 1903 was passed due to a concern that was raised by Theodore Roosevelt that the militia standards of the time were not up to par with the regular Army and should be improved. The National Guard essentially became and extension and an overflow of the U.S. Army, a reserve, allowing Congress to call on the National Guard in time of crisis, and to ensure that their training was that of the Army.
In regards to allowing the State to arm the National Guard, the State needs to be able to arm its National Guard or else, what good are they? However, almost every State considers their National Guard to be an Organized Militia, and the majority of States also have an Unorganized Militia, some call it a Special Defense Force, consisting of the regular citizenry.
For example, the Utah State Constitution declares:
39-1-1. Militia—How constituted—Persons exempted.
(1) All able-bodied citizens, and all able-bodied persons of foreign birth who have declared their intention to become citizens, who are 18 years of age or older and younger than 45 years of age, who are residents of this state, constitute the militia, subject to the following exemptions:
(a) persons exempted by laws of the United States;
(b) persons exempted by the laws of this state;
(c) all persons who have been honorably discharged from the army, air force, navy, or volunteer forces of the United States;
(d) active members of any regularly organized fire or police department in any city or town, but no member of the active militia is relieved from duty because of his joining any volunteer fire company or department;
(e) judges and clerks of courts of record, state and county civil officers holding office by election, state officers appointed by the governor for a specified term of office, ministers of the gospel, practicing physicians, superintendents, officers and assistants of hospitals, prisons and jails, conductors, brakemen, flagmen, engineers and firemen of railways, and all other employees of railways actually employed in train service; and
(f) idiots, lunatics, and persons convicted of infamous crime.
(2) All exempted persons, except those enumerated in Subsections (a) through (f), are liable to military duty in case of war, insurrection, invasion, tumult, riot, or public disaster, or imminent danger of any of these, or after they have voluntarily enlisted in the National Guard of this state.
Amended by Chapter 15, 1989 General Session
39-1-2. Militia divided into two parts.
(1) The militia of this state shall be divided into two parts: the National Guard and the unorganized militia.
(2) The National Guard shall consist of:
(a) a joint forces headquarters commanded by the adjutant general and authorized a general officer as deputy commander;
(b) a department for army commanded by a general officer; and
(c) a department for air commanded by a general officer.
(3) The numerical strength, composition, distribution, organization, arms, uniforms, equipment, training and discipline of the National Guard shall be prescribed by the governor in conformity with the laws and regulations of the United States and the laws of this stat
(4) The unorganized militia shall consist of all members of the militia not members of the National Guard.
Amended by Chapter 65, 2005 General Session
39-1-7. Muster of unorganized militia.
Members of the unorganized militia called into the service of this state shall be mustered into service for such a period, not to exceed the period of one enlistment in the National Guard, as the governor shall deem necessary. Militia so mustered into service shall be organized into units as provided by the rules and regulations governing the regular army of the United States, or as otherwise provided by law.
No Change Since 1953
The Second Amendment makes no reference to an Organized or an Unorganized militia, it simply states “A well regulated militia…” which would mean the National Guard, and the citizenry if the Governor should so chose to call on them.
I think that’s as far as I’ll go with the conversation that was had today. Anything more would be over kill.
One more nicely written piece (Hat tip to Kim). Mr. Johnson beautifully illustrates some of the same points that I have made.
Second Amendment an individual right
The U.S. Supreme Court will soon decide D.C. v. Heller, the first case in more than 60 years in which the court will confront the meaning of the Second Amendment to the U.S. Constitution. Although Heller is about the constitutionality of the D.C. handgun ban, the court’s decision will have an impact far beyond the District (“Promises breached,” Op-Ed, Thursday).
The court must decide in Heller whether the Second Amendment secures a right for individuals to keep and bear arms or merely grants states the power to arm their militias, the National Guard. This latter view is called the “collective rights” theory.
A collective rights decision by the court would violate the contract by which Montana entered into statehood, called the Compact With the United States and archived at Article I of the Montana Constitution. When Montana and the United States entered into this bilateral contract in 1889, the U.S. approved the right to bear arms in the Montana Constitution, guaranteeing the right of “any person” to bear arms, clearly an individual right.
There was no assertion in 1889 that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of “any person” to bear arms.
As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states.
Numerous Montana lawmakers have concurred in a resolution raising this contract-violation issue. It’s posted at progunleaders.org. The United States would do well to keep its contractual promise to the states that the Second Amendment secures an individual right now as it did upon execution of the statehood contract.
Montana secretary of state
If you have made it to this point, I hope that you have found this to be both educational and rewarding. Remember, education is the brings light and knowledge and defeats its enemy, fear and darkness. The more you know, the better off you are. My offer is still on the table to anyone who wants to head out to the range and let some brass fly.