Second Amendment Follies, Part 2: “a Well-Regulated Militia”


As we have seen, the purpose of the Second Amendment was actually to guarantee a “well-regulated militia”. But what exactly does that mean? Just what is/ was a militia, anyway? The gun culture, of course, has its own answer for that, whether it conforms to reality or not.  Let’s turn again to what is perhaps the definitive treasury of NRA talking points, the publication and website called GunFacts:

Today “militia” might be more meaningfully translated as “defense service”, associated with a “defense duty”, which attaches to individuals as much as to groups of them, organized or otherwise. When we are alone, we are all militias of one. In the broadest sense, militia is the exercise of civic virtue.

Wow. Militia of one. Fancy that tattooed on your knuckles as you pump off a few rounds of civic virtue. In less grandiose terms, what gunsters proclaim is that “militia” today means all of the citizenry, because that’s what it meant when the Second Amendment was etched in stone. But there are at least two major flaws with this claim.

First of all, it just isn’t true.  Gun fetishists likes to quote George Mason, Virginia delegate to the Constitutional Convention, thus:

I ask, sir, what is the militia? It is the whole people, except for a few public officials.

But this line uttered in debate is not a part of an official governing document. (Ironically, many individuals willing to brandish it as gospel are also quick to brush off Tom Jefferson’s comment about the wall of separation between church and state because it’s unofficial.) And given the tenor of the times, it’s likely that Mason didn’t quite exactly mean all of the people. Because the Second Militia Act of 1792 (passed only a few months after the Second Amendment was written) designated the composition of the militia as being:

every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years

So if the NRA crowd actually adhered to the original intent (or rather the original meaning, as they really seem to be professing to do), then today’s “militia” would consist only of white males between 18 and 45. And they would be outfitted only with

a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder

And maybe a slingshot or two.

Either Mason was being non-literal, or he was just plain wrong.

Of course, the original definition of militia has been tinkered with over the years since then. In 1862, a new Militia Act finally eliminated the restrictions of race; but there was still no remedy for the sexism and ageism of the original.

Then in 1903 another Militia Act, also known as the Dick Act, established the National Guard as the official “organized militia”, and demoted those who are eligible for Guard membership (i.e., able-bodied males within a certain age range) but not actual members as “unorganized militia” . In recent years, the gun culture has twisted the language and intent of this law into an assertion that “unorganized militia” means anyone who wants to tote hardware for any purpose.  The gun culture asserts that all civilians are a part of the “unofficial” militia and therefore covered by the Second Amendment; they must be wondering why the army never seems to need their services.

Sorry, but the Dick Act does not authorize you to be a — well, jerk. Being part of that “unofficial militia” doesn’t entail wearing a uniform or being privy to a secret handshake. And even if one could make a case that the Dick Act makes all of us “unofficial militia”, whatever rights it confers/ enshrines are legal (i.e., legislative) rights rather than constitutional rights. Its concept of militia is Twentieth Century rather than Eighteenth, and its provisions were not part of either the original Constitution or the Second Amendment; indeed, the Dick Act was passed when the Founders were all long deceased.

The other problem is that the obsession with the composition of the militia is to an extent a red herring. The most important thing about the militia was not its qualifications for membership, but its purpose for existing.  And that’s also clearly spelled out in the two Militia Acts of 1792:

That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion… That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed.

In other words, the militia was designed to be an organized armed force supplied by the states to execute the laws of the nation. Nothing in the Militia Acts said anything about citizens being armed for deer hunting. Or for “defending” yourself against your government — more about that in a future installment. (And the militia was by no means universally revered among the Founders; George Washington spoke of it disapprovingly on more than one occasion.) The Dick Act actually makes this even more clear. With the establishment of the National Guard as the go-to unit of reserve manpower, the need for a militia in the traditional sense effectively became obsolete — which means that the Second Amendment also became obsolete.

The purpose of the militia is further emphasized by the expression “well-regulated”. And as you might expect, the gun culture also has its insistence that “that word does not mean what you think it means”. Thus from GunFacts:

The origin of the phrase “a well regulated militia” comes from a 1698 treatise “A Discourse of Government with Relation to Militias” by Andrew Fletcher, in which the term “well regulated” was equated with “well-behaved” or “disciplined”.

And the author goes on to cite several other illustrations of the word well-regulated from the Oxford English Dictionary:

1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”

1714: “The practice of all well-regulated courts of justice in the world.”

1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”

1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”

1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”

1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”

What the gun culture has done, in other words, is set up a false dichotomy. On the one hand, there is what they want “well-regulated” to mean: skilled in marksmanship. And on the other hand, there is what they want the “gun control” advocates to want it to mean: strict prohibitive legislation imposed by the government.  And, they suggest, if it means one then it can’t possibly mean the other.

In fact, as you can see from the above examples, even GunFacts acknowledges that well-regulated spans a range of meaning. But all of its possible definitions embrace the sense of disciplined, organized and efficient. And they all apply to a military unit, such as a militia. Incidentally, members of the militia in Revolutionary days were generally conscripted for service. And one of the major ironies of today’s gun fetishists is that they worship the Second Amendment as the embodiment of what they believe to be the ultimate freedom, when in fact it was intended to be a codification of civic obligation.

Indulge the gun zealots for a moment and imagine that “well-regulated” means only skilled in marksmanship. Imagine all the “militias of one” running around on their own initiative and dispensing “civic virtue” in each other’s direction at will. Do you really think this would be a well-regulated militia in the sense that the Second Amendment intended? Militia, like military, is derived from the Latin word for soldier. And a soldier never acts alone even when he is alone.  It is only when an organized body of soldiers, whether they be regular army or militia, is well-regulated in virtually every possible sense of the term, that it will effect the “security of a free state”.

Which is the troublesome phrase we’ll examine in the next installment.