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Charles on "A Well-Regulated Militia"

By Lawrence Solum

Patrick J. Charles (Immigration Reform Law Institute) has posted The Constitutional Significance of a 'Well-Regulated Militia' Asserted and Proven with Commentary on the Future of Second Amendment Jurisprudence (Northeastern University Law Review, Forthcoming) on SSRN. Here is the abstract:

When the Founding Fathers drafted the Second Amendment they purposefully included the phrase ?a well-regulated militia.? A fact that constitutional commentator William Rawle took notice of when he wrote that the phrase was ?judiciously added? because ?a disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country.? Justice Joseph Story took similar notice, writing that it was impracticable ?to keep the people duly armed without some organization? because it would ?gradually undermine all the protection intended by this clause of our National Bill of Rights.? It is often asserted that a ?well-regulated militia? means nothing more than that the entire body of the people, as a militia, should be armed as a means to check tyrannical government. Such an interpretation ignores, arguably, the most significant phrase in understanding the Second Amendment?s constitutional purpose and protective scope. Not to mention, such an interpretation utterly negates what could be the future of Second Amendment jurisprudence.

In District of Columbia v. Heller, the Supreme Court majority did just this when it determined that a ?well-regulated militia? implied nothing more ?than the imposition of proper discipline and training.? The Heller majority went on to state that the Second Amendment?s use of the phrase ?well-regulated militia? was not ?the only reason Americans valued the ancient right? because the Founding Fathers ?undoubtedly thought it even more important for self-defense and hunting.? In making this determination, the Heller majority dismissed the argument that an ?organized militia is the sole institutional beneficiary of the Second Amendment?s guarantee[.]? They felt that this argument was futile given that ?Congress retains plenary authority to organize the militia,? and therefore could undermine the very protection that the Second Amendment affords.

First, it should be noted that the Heller majority?s assertion that Congress could pass legislation that would override the states? ability to regulate or call upon their respective militias is both historically and legally unsupported. The Constitution only grants Congress the plenary authority to organize the federal militia. Certainly, during the Early Republic, the states amended their militia laws to comport with the 1792 National Militia Act. However, congressional legislation concerning the federal militia did not preclude the states from adopting whatever militia laws deemed necessary to preserve and regulate their respective militias. Such concurrent authority, including the arming of the militia, was essential for each state to protect itself from whatever internal dangers may arise and, more importantly, provided the means to exercise the sovereign right of self-preservation.

Second, the Heller majority?s characterization of a ?well-regulated militia? seemingly guts the most significant phrase in the Second Amendment and the future of Second Amendment jurisprudence. The maintenance and advancement of a ?well-regulated militia? was not only intended to defend the New Republic, but provided an affirmative check on the federal government. This constitutional check was the entire driving force for including the right to arms in the Bill of Rights. Early constitutional commentators were in concurrence with this historical fact. For instance, St. George Tucker characterized the Second Amendment as leaving ?all room for doubt, or uneasiness on the subject [of federal power over a national militia], seems to be completely removed? by its adoption. Justice Joseph Story wrote ?the importance of a well regulated militia would seem so undeniable, it cannot be disguised[.]? He thought it ?is difficult to see? ?how it is practicable to keep the people duly armed without some organization[.]? Meanwhile, Benjamin Oliver came to a similar conclusion when he wrote that a well-regulated militia was the ?reason assigned to the amendment for this restriction on the power of congress, is sufficient to show its true construction.?

Given the fact that every early constitutional commentator viewed a ?well-regulated militia? as the essential piece of the right to ?keep and bear arms,? this begets the question, ?What is a well-regulated militia as the Founders would have understood it, and what, if any, impact does a well-regulated militia have on the future jurisprudence of the Second Amendment?? Answering this question is not as simple as characterizing a ?well-regulated militia? as being synonymous with a well-regulated appetite or family. What constitutes a ?well-regulated militia? can be found in the political works of Machiavelli, the political tracts and military treatises of late seventeenth century England, the militia laws of the respective states, both prior to and after the American Revolution, and the early American political tracts of the late eighteenth and early nineteenth centuries.

As will be shown below, these sources indicate that a ?well-regulated militia? does not mean just ?regulated.? It does not just mean that individuals must have arms to accomplish the Second Amendment?s purpose. A ?well-regulated militia? means much more. It defines an espirit de corps and a civic duty to be properly disciplined and trained. The Second Amendment does not mention an ?ill-regulated militia? or ?unregulated militia.? This is particularly significant because it shows that the Founding Fathers understood the difference between ?regulated? and ?well-regulated.? More importantly, the constitutional history of this distinguishing factor will aid future courts in determining the limits of the ?right of the people to keep and bear arms,? for should the Supreme Court incorporate the Second Amendment to the states, every jurisdiction will have to wrestle with the constitutional significance of a ?well-regulated militia.?

Full post as published by Legal Theory Blog on April 23, 2010 (boomark / email).