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April 2017 Policy Study, Number 17-6

   

A Commentary on the Bill of Rights

   

Part 8

   

 

Amendment II:

 

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.

 

At the present time, this amendment is so misunderstood, misrepresented, and under such attack that one hardly knows where to begin.  Because it is critical to a correct understanding of this amendment, you are once again alerted to the necessity of keeping in mind the contemporary history and the “spirit of debates” that preceded the adoption of this amendment.

 

You will recall that both Clauses 15 and 16 of Article I, Section 8, deal with the subject of the militia.  They begin with these phrases:  “To provide for calling forth the militia . . . ,” and, “To provide for organizing, arming, and disciplining . . . ”  You will again notice they made no mention of creating or even authorizing a militia.  The militia was already in existence, and it was taken for granted it would forever remain in existence.  It was the militia that originally procured our liberties.  It was already in existence before our national government was even formed; and consequently, it neither owed its existence to the national government nor needed its blessing to continue to exist.

 

When our Founders spoke of militia, they were referring to persons banded together for the legitimate purpose of maintaining security and liberty.  They were not condoning bands of thugs, street gangs, and outlaws who, through unlawful acts, diminish our security and liberty.  In fact, the militia was to be used to defend against such internal threats as these.  Our Founders considered the use of the militia legitimate for many purposes, both internal and external.  We all understand the use of militia for external threat; but their acknowledgment of its use for internal threat may well surprise the twentieth-century citizen — for they readily acknowledged as legitimate the use of militia as a remedy against the usurpation of government itself, both state and federal.  In fact, it is just this right that our Founders exercised in separating themselves from England and establishing the government they deemed best suited to their happiness.  With this being the case, it must be granted that the militia was not to be under the control of government in all cases, especially the national government.

 

The Constitution was to introduce the prospect of a national standing army to this nation.  Concerned citizens were apprehensive at this prospect, hence their demand for the inclusion of this amendment in the Bill of Rights to augment Clauses 15 and 16, of Article I.  Lest you think I have put words in their mouths, what follows is a sample of what they had to say on the subject:

 

The laws are not accustomed to relaxation in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other [national] state.  The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights.  (Emphasis added).  (Federalist Papers, No. 8.)

 

This sounds to me like Hamilton contemplated the use of the militia as legitimate, whether within or without the control of the state I cannot say, against the national army, if necessary.  In their opinion:

 

 . . . the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent. (Emphasis in the original).  (Federalist Papers, No. 26). 

 

This passage should leave little doubt as to his contemplation of the state’s use of the militia (“ARM”) to repel the usurpations of a national government:

 

 . . . but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.  This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.  (Federalist Papers, No. 29).

 

Though here Hamilton only makes reference to a standing army; it seems to me, if he had but contemplated any other agents of the state invested with “police powers,” he would have included them without question.  These would include the FBI, BATF, and the U.S. Marshals, to name a few.  For each of these has plenary power over the citizen through the authority of national government.  Though their name is not “army,” any unlawful exercise of their power brings on us the same unwelcome consequences:

 

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.  Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.  (Emphasis added).  (Federalist Papers, No. 46).

 

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery [derision]: whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instill prejudices at any price; or as the serious offspring of political fanaticism.  Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?  What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?  (Federalist Papers, No. 29).

 

Hamilton and Madison, as well as Clauses 15 and 16 of Article I, Section 8, are speaking to management of the militia and its use on behalf of the Union; of this there is no doubt.  But they also make it clear in their extensive writings that the militia may be used in service of the state.  Further, these men, having a healthy fear of strong government and not being fools, made it abundantly clear that the Constitution was in no way intended to abrogate the unalienable right of “we the people” set forth in the Declaration of Independence.  That being the right “to alter or abolish” any form of government that becomes destructive of our liberties.  In other words, “we the people” do not need government’s permission to defend ourselves from any threat, including the government itself.  In fact, if the time comes when we need their permission, our liberty has already been usurped. 

 

As you can see from their statements, they also had no fear of a well-armed populace.  Understanding the foibles of mortal men, they considered this a necessary prerogative to the maintenance of good government because its mere presence would tend to temper the overreaching of unscrupulous public servants.  How different the circumstance today.  They try every device to disarm us.  They want to protect us from violence . . . from ourselves.  If they really cared about our personal security, knowing that it is very unlikely any government-sponsored security will be on the spot when we truly need their help, they would not even consider taking from us the means of self-defense.  I have severe reservation that my personal security is utmost in their intentions.  It is more apt that my government doesn’t trust you and me to behave in the manner they may dictate.  A government that doesn’t or can’t trust its citizens is a government that bears close scrutiny.  As for me, the more intent the government is on disarming me, the greater is my insecurity and the more necessary the urge to be armed.

 

   

 

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