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An Armed Militia

David I. Caplan

• Member of the New York Bar

“Restoring the Balance: the Second Amendment Revisited.” Fordham Urban Law Journal 5 (1976–1977): 30–52.

Current efforts to limit possession of firearms to the organized militia and the theories arguing such constraint do not stand the test of constitutional theory. We can establish this by reviewing and explaining the background of the Second Amendment of the U.S. Constitution from its legislative history as well as from the common law and colonial development of the right to bear arms.

The Second Amendment reads as follows: “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.” This amendment guarantees the twin goals of both individual and collective defense from violence and aggression. The intent of the framers of the Second Amendment was never to deprive private citizens of defensive arms, which alone might allow them to rebel against a tyrannous government.

State disarmament of citizens frequently served to enable one social or economic class to suppress another, as witness Charles II's disarming of Protestant subjects in England. The common law tradition, as Blackstone's Commentaries on the Laws of England articulates it, favored the citizen's right to possess and carry arms for both collective defense and individual self-defense. The Founding Fathers had learned a painful lesson in how entrenched states may assault the liberty of disarmed citizens during the Revolutionary War. The British Governor of Massachusetts Bay Colony, General Gage, sought to hamstring armed protest and the formation of the rebel's citizen militia by his attempts to disarm the colonists and confiscate their magazines of arms. Chief Justice Earl Warren has noted how much the Revolutionary War was a protest against government standing armies and was largely fought by a civilian army, the militia.

The legislative history of the Second Amendment reinforces how the constitutional framers were anxious to preserve a civilian, “unorganized militia” in contrast to the federally controlled “organized militia.” In an effort to prevent any usurping federal military power independent and superior to the civil power and rights of the people, the decentralized people's militia expressed a check against government. Furthermore, if either federal or state government invaded private rights, The Federalist No. 28 argued for the deterrent of an armed people. Private individuals were entitled to bear arms even apart from membership in the militia.

In this light, the Supreme Court infringed on the Second Amendment rights in United States v. Miller (1939). It ruled that citizens were not constitutionally guaranteed the right to possess or transport a sawed-off shotgun or other arms prohibited by the National Firearms Act of 1934. The Court failed to discern that the right to bear arms is a civil right, a private individual right of citizens, and not primarily of soldiers.

Any type of gun control legislation appears to violate the individual's rights under the Second as well as the Ninth Amendment, which allows the people to retain all rights not explicitly enumerated in the Constitution.