Who is the militia?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the National Guard peaceably to assemble, and to petition the government for a redress of grievances.

The right of the National Guard to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No National Guardsman shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the National Guard.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the National Guard.

It is, hopefully, pretty obvious that something about the above is not quite right. The problem, of course, is the substitution of “National Guard” everywhere these selected amendments actually say “people” (or in the case of the Fifth Amendment, “National Guardsman” for “person”). Looks rather ridiculous, doesn’t it? The reason for that is that it is ridicuolous–when the framers of the Constitution said “the people,” that’s what they meant. In the five amendments I butchered (please forgive me), that is universally understood. Why, then, are so many folks convinced that in the Second Amendment, “the people” means the National Guard (which wouldn’t exist for about a century after ratification of the Constitution)? Apparently, the confusion stems from the subordinate clause that opens the 2nd Amendment,

A well regulated militia, being necessary to the security of a free state, . . .

More specifically, it’s the inclusion of the word “militia” that seems to throw people off. That leads us to the question that forms the title of this post: who is the militia?

Those who are uncomfortable with the idea of Constitutional protection for an individual right to keep and bear arms argue, of course, that it’s the National Guard. The reasoning, apparently, is that the NG, by virtue of being made up of part-time soldiers, is not a standing army. Additionally, we are apparently expected to fear the idea of a body of armed men not under direct government control.

This argument runs into problems. One of those problems is a Supreme Court ruling from 1990, in the case of Perpich vs. DoD. In this case, the governor of Minnesota, Rudy Perpich, sued the Department of Defense for mobilizing the Minnesota National Guard, which Perpich claimed was a “state militia,” for duty outside the state, without the consent of Perpich or the state legislature. The Supreme Court rejected his claim, on the grounds that the National Guard is an integral part of the U.S. Army Reserve system (which means, in turn, that the NG is part of the standing army). SCOTUS went on to illustrate the difference between the “special militia” (the NG, in this case), and the “general militia” (private citizens with privately owned arms).

Besides, why would the government need Constitutional protection for the right to arm its own troops (remember, the Supreme Court has ruled that the National Guard is under federal control)? If we accept that the government has the right to have troops (an assertion I haven’t seen questioned), we must assume that it may arm them (or else there would be little point in having them). Regardless, even if the government does need such a right explicitly annotated, it wouldn’t be in the Bill of Rights–the BOR serves as a counterbalance to governmental power, not a confirmation of it.

What would be really useful, I suppose, would be finding some kind of indication from one of the framers of the Constitution of just what they meant by militia. Actually, as it turns out, we have one. George Mason, in debating Virginia’s ratification of the Constitution, said

I ask, sir, what is the militia? It is the whole people, except for a few public officials.

Not really very ambiguous, is it?

Who is the militia? Take a look in the mirror. Oh, and stand up straight, soldier.

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3 Responses to “Who is the militia?”

  1. Anonymous Says:

    Got a bigger version of that picture, or can you provide a link to one? Its very hard to read though I can pretty much guess what they’re saying.

  2. 45superman Says:

    Yeah, the picture didn’t come out as well as I’d hoped. The place where I originally got it seems to have folded.

    I guess it would be easiest to provide the link this way (hopefully this will work).

  3. 45superman Says:

    Don’t know why I didn’t think of this before–it’s set up now so that the small picture that shows up on the blog acts as a clickable link to the larger version.

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