If a Well-Regulated Militia is Necessary to the Security of a Free State, are we Insecure? Or Unfree?Posted: March 10, 2014
No militia means more intrusive law enforcement
Glenn Harlan Reynolds writes: The Second Amendment to the United States Constitution 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.”
For a while, some argued that the so-called “prefatory clause” — “A well regulated Militia, being necessary to the security of a free State” — somehow limited the “right of the people” to something having to do with a militia. In its recent opinions of District of Columbia v. Heller and McDonald v. Chicago, the Supreme Court has made clear that the Second Amendment does recognize a right of individuals to own guns, and that that right is in no way dependent upon membership in a militia. That seems to me to be entirely correct.
“A professional standing army could turn on the people, placing its loyalty with its paymasters rather than with those it was supposed to protect. The militia, on the other hand, couldn’t betray the people because it was the people.”
But there is still that language. If a well-regulated militia is necessary to the security of a free state, then where is ours? Because if a well-regulated militia is necessary to the security of a free state, it follows that a state lacking such a militia is either insecure, or unfree, or possibly both.
For law enforcement, the militia has been replaced by professional police, with SWAT teams, armored vehicles and Nomex coveralls; for military purposes, the militia has been replaced by the National Guard, which despite a thin patina of state control is fundamentally a federal military force.
In the time of the Framers, the militia was an armed body consisting of essentially the entire military-age male citizenry. Professional police not having been invented, the militia was the primary tool for enforcing the law in circumstances that went beyond the reach of the town constable, and it was also the primary source of defense against invasions and insurrection.
Despite anti-gun hysteria following shootings, the trend is toward expanding gun rights.
For USA Today, Glenn Harlan Reynolds writes: This past weekend, the Tennessee Law Review held a symposium on “New Frontiers in the Second Amendment.” It was a follow-up, of sorts, to a symposium held almost 20 years ago, and boy, has a lot changed since then.
“Overall, the trend of the past couple of decades seems to be toward expanding gun rights, just as the trend in the 1950s and 1960s was toward expanding free speech rights”
In 1995, Second Amendment scholarship had been almost entirely nonexistent for decades, and what little there was (mostly written by lobbyists for gun-control groups) treated the matter as open-and-shut: The Second Amendment, we were told, protected only the right of state militias (or as former Chief Justice Warren Burger characterized them, “state armies“) to possess guns.
Lower court opinions, to the extent they existed, were largely in agreement, and the political discussion, such as it was, generally held that anyone who believed that the Second Amendment might embody a judicially enforceable right for ordinary citizens to possess guns was a shill — probably paid — for the NRA. Whatever the Second Amendment meant, it did not, we were told, protect a right of individuals to possess firearms, enforceable in court against governmental entities that infringed on individuals’ gun possession.
But then came a wave of scholarship, much of it by eminent constitutional scholars ranging from William Van Alstyne, to Laurence Tribe, to Sanford Levinson, toRobert Cottrol, exploring the original purposes and understanding of the Second Amendment. By the turn of the millennium, it was well-established among scholars that the Second Amendment was intended to protect an individual right to arms, one that would be enforceable in court against infringements by states, municipalities and the federal government.
[Glenn Reynolds is the author of The New School: How the Information Age Will Save American Education from Itself look for it at Amazon]
Addressing who can own guns, where they can carry them, and whether guns can be transported to a second home
Brian Doherty writes: Since the 2010 Supreme Court case McDonald v. Chicago, which applied the ruling in the 2008 Heller case (which said the Second Amendment guarantees an individual right to bear arms) to states and localities, the Court has so far evaded any new case about the limits and meaning of the Second Amendment.
Those two cases, though, did not resolve all the important questions about how and when and why the government can restrict Second Amendment rights. Hellerand McDonald said that the right to possess commonly used weapons for self-defense in the home cannot be infringed, but Justice Antonin Scalia in his majority opinion in Heller explicitly said this didn’t mean anything goes when it comes to Americans and their guns.
Many other cases that try to define the whos, whens, and hows of our Second Amendment rights are percolating through the lower courts, and some are trying to wend their way to the Supreme Court.
Here are three of the most relevant active cases involving the Second Amendment, ones that promise to expand Second Amendment liberty, and resolve some of the core issues left unresolved by Heller and McDonald. Two of them will likely be considered for certiorari by the Supreme Court (though whether they will take them up is always hard to predict).