Second Amendment Follies, Part 3: “the Security of a Free State”


So we have seen that the real purpose of the Second Amendment was to guarantee a “well-regulated militia”. Why? Well, continue reading to the next phrase: “being necessary to the security of a free state”. Which is, compared to some of the other amendment’s components, rather straightforward. Which hasn’t prevented the gun fanatics from turning it completely on its ear.

According to them, the real function of the hallowed addendum to the Constitution is so “patriots” can be armed to fight against their own government (if the president happens to be a Democrat). Under their logic, they could offer the ultimate demonstration of their “patriotism” and “support for the troops” by killing as many troops as possible.

Never mind that the chances of an armed citizenry successfully fighting an armed government are exactly two: slim and none. No, make that infinitesimally slim and none. The peddlers of this myth like to claim that the American Revolution itself was an example of such a successful campaign. Nope. The Revolutionary War was not fought between civilians and their government; it was fought between armies, supplemented by militia. And that militia, as we’ve already noted, was not merely a gaggle of armed citizens.

But at the moment, we’re not really concerned about how realistic this bit of dogma is, but rather with how constitutionally grounded it is or isn’t. And the gunsters also maintain that the Founders wanted future citizens to be prepared to fight their own government because that’s what they themselves had had to do. In other words, having overcome a tyrannical regime imposed by a monarch on the other side of the planet, the Founders carefully and meticulously constructed a new republic with a system of checks and balances designed to make certain that its government never became monarchical; yet they had such little faith in this new system they designed that they also installed a loophole to encourage anarchy against it.

To buttress this claim, gunsters often quote the Founders on the topic, or at least so it appears. Here’s one example that’s been making the rounds.


Seems like an unequivocal pronouncement from an unequivocal Revolutionary authority, no? Unfortunately, this photo is fake, and so is the quote — at least the part of it that really matters to the gun cult.  His actual statement, in part, was this:

A free people ought not only to be armed but disciplined; to which end a Uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies.

The comments about “discipline” and a “Uniform and well digested plan” is a strong indication that the Father of the Country wasn’t talking about the kind of nightmare scenario that today’s NRA has brought to fruition.

Yet there are other quotes from figures of the Revolution that the NRA cult has packed into its arsenal.  For example, there’s this one from Thomas Jefferson:

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

That’s definitely a strong case, and Jefferson is definitely a well qualified person to make it, so… um, wait a minute. Turns out that one is bogus too.

Of course, there are many genuine quotations from the Founders and their compatriots that seem to support a citizen’s right to be armed. But it’s important not to take them out of context. And it’s especially important not to take them as an admonition to be armed against one’s own government.  There are at least two major obstacles to such a conclusion.

First, there’s Article 3 of the Constitution, which includes this:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

In other words, taking up arms against your own government. That’s a very serious offense, traditionally punishable by death. So do you believe that the Founders spelled out what treason is, and then appended a provision to the Constitution that encourages citizens to commit it?

The second obstacle can be found in Article 2 of the U.S. Constitution:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

And in the Militia Acts of 1792:

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, [words requiring notification by an associate justice or district judge were omitted in 1795 revision. The revision gave the President more authority] 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. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary…

All of which adds up to the bottom line that the militia is ultimately answerable to the president.  Furthermore, if one state’s militia is unwilling or unable to do his bidding within the bounds of its state, the president is authorized to summon forth militias of other states to do the job. (And note that the mention of different militias for different states is a strong indication that a militia was meant to be more than just an armed populace.) Which means that in order for the gun culture fantasy of bringing down Uncle Sam to be realized, the president would have to mobilize the militia against himself. And while some really kooky happenings are happening at the White House these days, this is not likely to be one of them any time soon.

Still, it’s not inconceivable that the Founders did indeed intend for the militia to be available to combat tyranny. It’s just that, inevitably, it would be marshaled to support the federal government instead of to oppose it.  A classic example occurred in 1957 when Arkansas governor Orval Faubus refused to comply with federal directives to desegregate Little Rock Central High School. Faubus initially mobilized the Arkansas National Guard (i.e., the militia) to impose his own will and resist what many southerners considered the “tyranny” of forced desegregation. This sounds like the gun culture wet dream. No, actually, it would be more like armed civilians marching on Washington and overthrowing the president because of this “tyranny”.

But what happened then was that President Eisenhower stepped in and took control of the Guard, as presidents have the right to do. The tyranny of Faubus was suppressed, and segregation was ended. This is the kind of “security of a free state” the Founders had in mind. And it’s the way they intended militias to work. How do we know? Because they clearly said so.

(Next installment: we get to the heart of the matter, the gun culture’s favorite part of the Second Amendment.)


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.