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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.

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