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A Well-regulated militia

As I listen to the comments about the need to do something to keep another Uvalde from happening, I’m hearing the usual comments that the second amendment is more to authorize a militia than the individual right to bear arms. 

That I disagree is not an adequate reason to ignore the argument – scientific method pretty much demands listening respectfully to folks who disagree.  Fortunately, the internet gives me access to historical research that was confined to university campuses a quarter-century ago.  There is the problem of avoiding confirmation bias, but I can cope with that.

Hartnation goes through the importance of the militias during the American revolution.  Remembering my long ago American History classes, I think George Washington expected a militia unit to be able to stand and fire 3 rounds, but not stand when the Brits closed with bayonets.  Hart described how dependent the Continental Army was on the local militias:

At the beginning of American independence an immense task faced the colonial revolutionary. The English army, the best-trained, best-equipped military in the world, had served in the Americas, enforcing the will of the crown for many decades. American victory rested in the ability of the colonists to put together a viable fighting army. We know from history that the American Continental Army, commanded by George Washington, defeated the superior British army and expelled the rule of the crown from the colonies by 1783.

. . . How much did the colonial militia contribute to enable the Continental army to defeat the British? I would posit that the militia movement was the driving force behind the Continental Army’s victory over the British because they were the main source of manpower, because they were already trained and armed with a 150 year harden tradition of defense to protect their own communities, and because the militia was made up of mostly  farmers and landowners, they stood to gain the most from independence giving them something tangible to fight for other than “liberty”.”

battlefields.org

Militias also provided the Continental armies in the field much-needed manpower, albeit on a temporary basis. When British commanders planned for their campaigns against the Continental armies in the field, they had to take in account the size of the militia forces operating in those same geographic areas. The British knew the militia were unpredictable, but they could not totally neglect their presence either. In some instances, militia units were the deciding factors in important battles. The war’s first battles of Lexington and Concord in Massachusetts were fought mostly by militia with some minutemen units. At the Battle of Bunker Hill, outside Boston, militia dealt a deadly blow to the British. Later in the war at battles such as Bennington, Vermont, King’s Mountain, Cowpens, both in South Carolina and Guilford Courthouse, in North Carolina, the militia was crucial to American victories.”

Reviewing those historical comments, I get the feeling that the militia at the time of the American Revolution could have been described (as in the quote misattributed to Admiral Yamamoto) as a rifle (or at least a musket) behind every blade of grass.  The better regulated, the better drilled and prepared, the more essential to the security of a free state.

The Supreme Court  (Miller case) ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia”.  This kind of invalidates the arguments against “weapons of war.”  That 1939 decision protects them.

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Heller- More Than a Single Court Decision

Much of the law on firearms accessibility is listed in dates and names.  Miller commemorates a bad man, whose poor marksmanship led to his need for a sawed off shotgun, and a court decision that short-barreled shotguns weren’t suitable for military use.  On the other hand, Heller’s name is immortalized in the court case that restored the second amendment after Miller took it away.  “The court ruled that the District of Columbia must give Heller a license to possess a handgun inside his home. In the process, the court ruled that the Second Amendment protects an individual’s right to bear arms and that the district’s handgun ban and trigger lock requirement violated the Second Amendment.” 

The National Review simplified the decision starting with “Here’s a quick (and, given its 64 pages, necessarily highly selective) summary of Justice Scalia’s opinion for a 5-member majority in District of Columbia v. Heller, invalidating D.C.’s handgun ban on Second Amendment grounds:

1.  The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense at home.  (2-54)

      (a) In the Second Amendment’s operative clause (“the right of the people to keep and bear Arms, shall not be infringed”), the phrase “the right of the people” creates “a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”  ( 5-7)

In the phrase “to keep and bear Arms”, the word “Arms” “extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”  (8)  The phrase “keep … Arms” means “have weapons.”  (Slip op. at 8-9).  The phrase “bear Arms” means to “carry weapons” and was understood as part of “the natural right of defense ‘of one’s person or house”.  (9-18)  It “in no way connotes participation in a structured military organization.”  Justice Stevens’s claim that “bear Arms” “connotes the actual carrying of arms … but only in the service of an organized militia” incoherently gives “Arms” two different meanings at once:  

It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”  Grotesque.  [13]

      The operative clause thus guarantees “the individual right to possess and carry weapons in case of confrontation.  This meaning is strongly confirmed by the historical background of the Second Amendment.”  (19-22)

 (b) The relevant question for the prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) is whether it is consistent with our reading of the operative clause.  (4-5, 22.)  The phrase “well regulated Militia” means “all males physically capable of acting in concert for the common defense.”  (22-24)  The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States.  (24) [This point would seem to defeat one of the strongest arguments against incorporating the Second Amendment against the States.]

            The prefatory clause “fits perfectly” with the operative clause, as the founding generation knew that “the way tyrants had eliminated a militia … was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.”  (25)  But the prefatory clause “does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”  (26)

 (c) Our interpretation is confirmed by analogous provisions in state constitutions (27-30), is not undercut by the drafting history of the Second Amendment (30-32), is consistent with how virtually all interpreters of the Second Amendment interpreted it in the century after its enactment (32-47), and is not foreclosed by any of our precedents (47-54), including United States v. Miller (49-53).

The whole article is available at  https://www.nationalreview.com/bench-memos/district-columbia-v-heller-scalias-majority-opinion-ed-whelan/ and worth reading

 You can hear Scalia’s opinion here:

Still, Dick Heller has gone far past a single Supreme Court decision – his foundation goes on to list ( https://www.hellerfoundation.org/ ) 3 more completed court cases, and a fourth undescribed but upcoming.  His most recent – Heller 4 – dealt with keeping the ability to build your own gun in DC.