Well-regulated militia and well-regulated liberty | News, Sports, Jobs

Opposing beliefs about the 2nd Amendment are both widely misconstrued (S. Cornell, “A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America,” p2; more citations below).* Originally, neither personal defense nor states-rights were intended: only defending against invaders. In founders’ minds was the minutemen militia. However, “the minuteman ideal was far less individualistic than most gun rights people assume, and far more martial in spirit than most gun control advocates realize” (2). Constitutional originalism would require all citizens to own today’s assault weapons!

Today, “regulation” is mistaken as negating “rights.” The colonists, instead, believed that “liberty without regulation was anarchy” (3), and that unregulated armed groups were not a militia but a “rabble” (19). Militias existed for fear of a (national) “standing army” (19) that could over-run states rights. Second Amendment fear of disarmament reacted to pre-Revolution British attempts, not a matter of protecting the right of personal self-defense.

When the originalist universal militia was replaced by the National Guard and police, citizens no longer needed arms for the militia. And no early state constitution protected ownership for personal defense, or for “well-regulated society” (33). (Hunting was a right by “common law” inherited from the British). “A single constitutional principle emerged, linking the right to keep arms with the obligation to bear them for common defense” (24); i.e., “the ideal of well-regulated liberty” (27).

Later, the balance of power between states and national government created tensions. “Federalists” like Washington and Hamilton favored strong national government; Jefferson and S. Adams (later called “Democrat-Republicans”) favored a loose confederation of states with the militia as an alternative to a National army.

The Federalist Papers (Hamilton, Madison, Jay) argued that “the performance of the militia in the Revolution. . . that nearly ‘lost us our independence’. . . demonstrated that ‘the great body of yeomanry [civilians]’ were unwilling to submit to the level of regulation necessary ‘to acquire the degree of perfection which would intitle [sic] them to the character of a well regulated [sic] militia” (48). Especially feared, “the futile efforts of individuals and localities that might ‘rush tumultuously to arms, without concert, without system, without resources’. A well-regulated militia . . . was not an armed mob” (49).

The history of “mobs” calling themselves “militias” developed into “popular radicalism” (76f): (e.g., Shays, Whiskey, Fries’s Rebellions); to “mobs and murder testing the limits of the right to bear arms” (110-30; e.g., Fort Rittenhouse siege, 117); and to disputes over 1812 War militias (130-35). All demonstrate dangers of unregulated militias, especially modern “militia movements” (Wikipedia, Reserve components of the US Armed Forces).

Post-Civil War observers noted a new spirit of US individualism (138f), and it involved guns. They were carried to protect against freed slaves and for personal quarrels (139). Concealed weapons (dirks, bowie knives, pistols, cane swords) became common, especially in the south and (new) west. Thus arose an “aggressive theory of self-defense” that turned ” ‘every man into an avenger, not only of wrongs actually committed . . . but rends him swift to shed blood in the very apprehension of an insult’ “ (140). Proliferating weapons intensified collective violence. “The primary targets of this violence, African-Americans, abolitionists, Mormons, and Catholics, were considered outsiders in American society” (140).

State laws, often about concealed weapons (141f), resulted. One court case led to the “orthodox legal view” that weapons without use in military preparedness were not constitutionally protected and, thus, states could regulate pistols or other weapons in a well-regulated militia (146). Public outrage in Kentucky over another court decision (since negated) usefully reminded that the original freedom to bear arms was to prevent government from disarming local militias (144f); and in Massachusetts, that “the people’s right to be free from the threat of violence took precedence over the individual’s right to arm himself” (149); the right to be free from armed aggression.

Conflicting interpretations of the 2nd Amendment over history demonstrate conclusively that personal understandings (theories) of the right to bear arms are not confirmed outside of evolving legal theory and thus courts. Some theories hold to an 18th century fear of standing armies and National government. For others, militias have given way to police and National Guards. However, in legal history the right to bear arms has always involved regulation!

With the U.S. overflowing with guns, protecting well-regulated liberty and the right to be free from gun violence deserves much more consideration in civic debates. “Gun rights ideology has fostered an anticivic [sic] vision, not a vision of civic mindedness. In this ideology guns are primarily viewed as a means for repulsing government or others citizens, not a means for creating a common civic culture” (214).

*See, also, H Richard Uviller, The Militia and the Right to Arms, or How the Second Amendment Fell Silent. Detractors should first consult these legal histories.

Thomas A. Regelski is an emeritus distinguished professor at the State University of New York at Fredonia.

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