On Well-Regulated Militias

I think I see the Second Amendment differently than almost everyone else in the country. I wonder if that’s because I actually read the whole thing:

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.

As I read that sentence, it’s clear to me that the whole purpose of letting people keep and bear arms is so that our country can have a “well regulated militia” to help with security. Without changing linguistic meaning at all, you could flip the sentence around and make it read: “The right of the people to keep and bear arms shall not be infringed because a well-regulated militia is necessary to the security of a free state.” If the Founders weren’t expecting to get a militia out of it, I don’t expect the rest of the amendment would have been written at all. This exact kind of citizen militia, epitomized by the minutemen, was basically our national army in the Revolutionary War. It worked really well in that war, and the Founders wanted to make sure we kept it.

We’ve never had a militia like that since.

In the War of 1812, militia units spectacularly surrendered Detroit (and therefore Michigan Territory) to an inferior British force. In the 1830s and 40s, the mobs that chased The Church of Jesus Christ of Latter-day Saints from Missouri and Illinois were comprised primarily of militiamen, sometimes acting in their official capacity. There might be a case to be made that militias defended frontier towns against Indian raids (or at least helped deter such attacks), but when it comes to actually defending the country, we’ve found over the years that a professional army does it a lot better. And America has the biggest, best army in the world.

But let’s assume, for the sake of argument, that the “original intent” of the Second Amendment was, as its own text says, to provide for “a well regulated militia.” How might we legislate so that America has a well-regulated, modern-day equivalent of a minuteman militia? (Please note that the following is intended more as a thought experiment than an actual policy proposal.)

  • Make gun ownership equivalent to militia membership. You want to own a gun? Congratulations! You’re part of your local militia. If we ever get invaded, we’ll call on you to help. In the meantime, militia members are free to use their firearms for hunting, sporting competitions, and personal protection, just as 18th-century militia members did.
  • Make sure militia members meet basic requirements. Militia members should have reached the age of majority, should be mentally stable, should not be convicted of violent crimes, and should not have any connections to gangs, organized crime, or terrorist organizations. We’ll have to do a background check to make sure these conditions are met.
  • Make sure militia members know how to use their weapons. Militias will do our country no good unless they know what they’re doing. As part of ensuring that our militias are “well regulated,” we should make sure that each militia member knows how to properly store, care for, and shoot with his or her weapons. As with our professional military, they should prove that they are competent in each of these areas before they get to keep their weapons (in the case of the militia, taking them home with them). This will probably take the form of a training course, one for each weapon type.
  • Make sure we know our militia’s capabilities. If we ever do get invaded, we’ll need to know how many militia members we can call on and what type of arms they can bring to the fight. This is actually pretty easy if all militia members are already trained; from the training tests, we’ll know what weapons each militia member has passed off and purchased. This might sound like a “gun registry” to conservatives, and it basically is, but from a purely military and tactical perspective, it is absolutely essential to “know thyself” in any armed conflict. And the militia must know exactly what resources it has at its disposal before it goes into combat. If you’re worried about security, you can keep the list at a local level.
  • Make sure militia members stay competent over time. Militia members should practice with their units! We hope we never get invaded, but we might one day, and the militia should be ready at a minute’s notice. Militias certainly need to be practiced in order to be well regulated, though they don’t need to be at the same level of proficiency as our professional troops. One day of drills every month or two might be enough, but states and municipalities should be able to require more if they feel it necessary. Attending such training days should be compulsory requirement of remaining in the militia—and remember, the Constitution’s rationale for letting you have a gun at all is so that you can be in the militia. We should also make sure, periodically, that militia members stay proficient with their weapons and continue to meet the requirements of the background check—after all, those things can change over time.

I’m hard-pressed to think of a reason why these rules would not be good for a militia organization. (Though if you can think of some, please post them in the comments!) And believe it or not, these rules would actually go farther than some of the things that gun-control advocates are proposing. This thought experiment imagines not only universal background checks on gun buyers, but continuing background checks every few years (or less). It requires people to become proficient and pass a safety exam before taking a gun home—and that’ll probably take more time an arbitrary “waiting period” would impose. And it requires an (at least) monthly time commitment in order to keep the gun.

I’m pretty sure the NRA would call these measures “onerous.”

But they would all be essential to making an even halfway decent militia.

And proposed as militia regulations, they would all be perfectly constitutional according to the Second Amendment, which calls for “a well regulated militia.”

Now, true gun nuts (I know a few) would probably go through these hoops to keep owning their guns. A lot of them do the sort of training I’m proposing on their own time anyway. They’re exactly the kind of people we want in a militia, and we could even look at ways to encourage them to participate beyond the threat of not having their guns. The people who cause most of our country’s gun violence aren’t gun nuts, but they are the kind of people who would wash out of the militia in one ot more of the steps I’ve outlined above (and their fellow militia members wouldn’t feel safe giving them a gun anyway). Anyone who can’t be bothered to go through all of this wouldn’t have a gun, which would very probably reduce the number of firearm-related suicides and murders of passion.

Now, the one argument in favor of Americans owning guns that has an ultimate value is this: one day, the government may become tyrannical and need to be changed or replaced by force of arms. This is not an academic question to Americans; we’ve done it once before in our Revolution, and as I mentioned, citizen militias played a large role in that struggle. I personally don’t think we’ll have to worry about this unless we do something as asinine as electing Trump president, but even that could happen. Brad Torgersen said today:

“The ultimate expression of freedom, is being able to resist or deny those who would take it from you, or your family. The firearm is not just a symbol. It is a tool. Like all tools, it requires training, experience, and discipline to use effectively. Laws don’t prevent tyranny. The status quo doesn’t prevent tyranny. Individuals with free hearts and spirits, and the means and the will to say, ‘No,’ prevent tyranny.”

Surely a well-regulated militia, trained, experienced, and conditioned by the steps I’ve outlined above, is going to be heck of a lot better at resisting governmental tyranny than a bunch of random American citizens who happen to own guns. Dove and deer hunters have less than a prayer of overpowering America’s professional military. (We just saw how that would go in Oregon, and that was with law enforcement, not the military, and they were holding back.) But to ensure that power in our society is ultimately held by the people, as it should be, the people need an ultimate method of enforcing that power against a government that might turn tyrannical. The militia approach can satisfy this real and valid need for firearms.

Maybe it should be less of a thought experiment. Maybe this is one case where the “originalist” approach of the late Justice Scalia should actually be applied to the wording of the Constitution. If we truly believe that “a well regulated militia” is “necessary to the security of a free State,” then we should have actual, regulated militias. And we should keep and bear our arms for that purpose, which is the only one explicitly called for in the Second Amendment.

And just in case you were wondering, I do go shooting every once in a while:

The troublemaking editor with a friend's AR-15.


One thought on “On Well-Regulated Militias

  1. Interesting thoughts! One thing you don’t address, which I feel is key in terms of changing our country’s dialog about guns, is the not very secret self-interest of the gun lobby in terms of keeping things the way they are, purely for business and financial reasons and absolutely not for ideological reasons at all. Through the NRA, they’re content to manipulate the public into thinking that gun control of any kind infringes their basic Constitutional rights–which rights are pretty limited, as you point out here. Money always seems to be the bottom line.


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