The Second Amendment and the “well regulated Militia”

6/26/08 Update: I’ve posted the text of the U.S. Supreme Court’s gun rights decision District of Columbia v. Heller, as well as an analysis of which “arms” we can keep and bear.

King GeorgeThe Second Amendment to the U.S. 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.

Since the U.S. Supreme Court recently agreed to hear an appeal (District of Columbia v. Heller) that will likely settle whether the right to keep and bear arms is an individual right, partisans on both sides of the issue are busily dissecting and spinning every word of the Second Amendment.

Most bloggers and pundits try to predict the outcome of the case by reviewing Supreme Court decisions and then trying to guess which side each current Justice will choose. Not only do the chattering classes speculate on exactly which kinds of “arms” we’re entitled to keep and bear (all of them, in my opinion), they also dig through reams of federal case law to argue that the right to keep and bear arms applies either to the “well regulated Militia” (supposedly meaning the National Guard) or to “the people” (individual citizens).

Well here’s a weird idea: maybe it’s not an either/or situation. I wonder whether any existing federal law has anything to say about the matter?

United States Code, Title 10 § 311

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Gosh. It seems Congress and the President have already arranged for a well regulated National Guard and for armed civilians. It’s amazing what you can learn by actually reading the law, isn’t it?

Of course there’s a very real possibility that the Supreme Court will twist the Constitution, completely ignore the text of a law properly enacted by the other two branches of the federal government, and impose its own gun control policy preferences on the rest of us. It wouldn’t be the first time, and you just know that Anthony Kennedy loves sitting in the catbird seat.

It would be comforting if the Court simply cited 10 USC § 311 and said “here endeth the lesson”, but somehow I doubt it’ll be that straightforward. Stand by for heavy seas.

7 comments

  1. Tacberry

    Preach it brother.
    The hippies like to cite the Miller case to say “the right can be regulated” because the court found that a machine gun and a sawed off shotgun were not suitable for militia use.
    I say the militia should be practicing with TOW Missile systems and artillery.

  2. Flick

    Many people are indeed fretting over what the Nazgul will decide, but I disagree that it will settle the matter. Even SCOTUS decisions can be overturned. What this WILL decide is whether we still have a SCOTUS that is for We the People or for our current oligarchy and corporations. If they decide against the individual right argument, does that mean the right no longer exists? Not at all. In fact, it is the biggest indicator one could ask for that it’s time to apply the following statement from our third president: “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Clearly, the Second Amendment’s primary purpose is not duck hunting or defending against thugs lurking in dark alleys, but to defend against and throw off an oppressive government. Many people need to reacquaint themselves with our Declaration of Independence…and join their local militia unit. Find it at http://www.awrm.org.

  3. Leif Rakur

    To Puddle Pirate:
    According to your posting of the Code, there are no women in the unorganized militia. I guess that means, then, that the only civilian women who have a right to keep and bear arms are those who are in the National Guard, right?
    To Flick:
    You may or may not be interested in knowing that Thomas Jefferson never made your “quoted” statement about “The beauty of the second amendment…” GunCite, a pro-gun outfit puts it under the heading of “More Bogus Quotes.” It says the “quote” is not to be found in Jefferson’s speeches or personal correspondence and has never been cited in law journals by Second Amendment legal scholars.
    Unfortunately, much of the individual-rights interpretation of the Second Amendment is based on the Assumption, Assertion, and Attribution of quotes that are either irrelevant to the Second Amendment or bogus.

  4. Alo Konsen

    Leif said:

    According to your posting of the Code, there are no women in the unorganized militia.

    Right.

    I guess that means, then, that the only civilian women who have a right to keep and bear arms are those who are in the National Guard, right?

    Wrong. The law explicitly recognizes the right of individual civilian men older than 17 and younger than 45 to keep and bear arms, but it says nothing about restricting anyone else’s right to do so.

  5. Alo Konsen

    Leif said:

    Unfortunately, much of the individual-rights interpretation of the Second Amendment is based on the Assumption, Assertion, and Attribution of quotes that are either irrelevant to the Second Amendment or bogus.

    What do you mean by that?