Great read THE SECOND AMENDMENT REGULATES THE MILITIA It is often said that the Second Amendment (the right to keep and bear arms) in the Bill of Rights of the US Constitution only applies to the militia. That is a partially correct statement. The intended meaning is that the right to keep and bear arms by the people, the subject of the Second Amendment, defines one distinct part of the militia. The notion that the right to keep and bear arms only applies when acting in the state militia is incorrect. A well regulated militia is necessary for the security of a free people. That principle is stated in The Bill of Rights of the US Constitution within the Second Amendment. It is also restated in exact terms in the New York State Constitution and formalized by statute in the Military Laws of New York State. The militia of the US Constitution actually has three components comprised of two unique components of state militia and one component of civilian militia. The first two pieces – the state militia The US Constitution authorizes militia in: (1.) Article 1Section 8 [state militia]; (2.) The Bill of Rights [civilian militia]. It authorizes and defines the role of a militia in Article 1 Section 8 Clause 15. It directs Congress to provide for the perpetual maintenance and regulation of that militia in Article 1 Section 8 Clause 16. This is the basis for the state militia that now has two of the three components which are covered later. Considering the historical events it is easy to understand that the state militia was considered important and included in the body of the Constitution and the civilian militia ignored requiring it to be added as an amendment. The purpose in writing the Constitution was to make corrections to government as the result of problems with the Articles of Confederation. Their neglect if civilian rights in the body of the Constitution was clearly an oversight. Article 1 Section 8 The Congress shall have the power: 15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; History It is now recognized that the foundation for the militia as formulated in the Constitution was derived from George Washington: George Washington, Sentiments on a Peace Establishment, 2 May 1783, Writings 26:374-76, 388-91. These sentiments were predated by two noteworthy documents – The Virginia Bill of Rights in June of 1776 and the Articles of Confederation in July of 1776. George Washington wrote his sentiments based upon these documents as well as his personal experiences on the field of battle. Washington wrote concerning the peace establishment of the United States: “(A complete peace establishment needs) a well organized militia ; upon a plan that will pervade all the states, and introduce similarity in their establishment manoeuvres (sic), exercise and arms.” (Sentiments) Virginia Bill of Rights 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence (sic) of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. Articles of Confederation, Article 6 ...No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. Standing armies and militia are different Considering the above sections of the Virginia Bill of Rights and the Articles of Confederation, the difference between standing armies and the militia was clearly understood. Washington wrote: “Altho a large standing Army in time of peace hath ever been considered dangerous to the liberties of a country...” “...(considering the dangers of ambitious leaders, the people) concede on all hands the policy and expediency of resting the protection of the country on a respectable and well established militia”. (Sentiments) Also -We can conclude when all Articles of the Constitution are considered that the forbidding of troops to the states in Article 1 Section 10 Clause 3 does not apply to the militia. Article 1 Section 10 Clause 3 No state shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Troubled times for the militia With a few exceptions the militia concept never really gelled immediately after the Constitution was adopted. The militias looked very good but they were not effective units. Each unit created their own uniforms and they were ornate to the extreme. They did make the tailoring business very profitable and certainly contributed to colorful parades. The Militia Act of 1903, also known as the Dick Act, gave birth to the National Guard under both state and federal control. This was the first effective militia structure. Todays state militia From the provisions in Article 1 Section 8 of the US Constitution a formal structure for state militia was derived by several Militia Acts. The militia was put under the control of the Governors of the several states. It was comprised of “organized” and “unorganized” militia. In New York the organized militia are the National Guard, New York Guard, Naval Militia and Air National Guard. They are controlled by the New York State Division of Military and Naval Affairs. The unorganized militia is all males 18 to 45 years of age who are not in the organized militia or in the federal military. It also includes by federal statutes many former military personnel. The National Guard is the only part of the militia being properly maintained today. Current events decry this maladministration by local, state and federal officials. Putting together a complete militia. The second place that the militia is found in the US Constitution is in the Bill of Rights under the Second Amendment. In this amendment it is stated that a well regulated militia was necessary for the security of a free state. To differentiate the two militia concepts, the words “well regulated” were not used in Article 1 Section 8 to describe the militia authorized there since, for the purposes of the government, they were deemed complete and adequate. You might ask what is different about the citizen militia of the Second Amendment as opposed to the state militia in Article 1 Section 8 of the US Constitution. Going to the 1828 Websters Dictionary, which is the first recognized dictionary that is closest to the time period of the Constitution, the word “regulate” means to put in order so as to function as intended. Inserting that definition into the Second Amendment we have: In order for the militia to function as intended for the security of a free state, the right of the people to keep and bear arms shall not be infringed as it is being utilized to ensure that desired security by supplementing the organized and unorganized state militia. Some have incorrectly assumed that the “regulation” of the Second Amendment means strict government control. Nothing could be further from the truth. In the Virginia Bill of Rights #13 it is stated: “in all cases, the military should be under strict subordination to, and governed by, the civil power.” It is clear that the will of the people was for civilian control. To suggest that government control was the requirement in the Second Amendment is exactly opposite of the stated concerns of the founders. From a different perspective the word regulation as used in the Second Amendment is not found in general usage today. It is still used in the music industry, most commonly with piano maintenance. A technician regulates a piano by fixing worn, broken or warped components so that the mechanisms and thusly the piano operate as intended. If we applied “regulation” defined as control by edict from authority we would have the piano technician requesting a regulation from the manufacturer compelling that the piano play as intended or suffer some penalty. If you believe in government regulation over the citizen militia, that belief is not supported by history or reasoned interpretation of all relevant documents. Note the subtle difference in wording (shall not , cannot) in the last clause of the following two constitutional provisions – one federal and one state: Second Amendment to the US Constitution “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.” The Constitution of the State of New York “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, cannot be infringed.” Total security The militia of the people was the final component to a militia that would provide the totality of security demanded by the people (see addendum). The citizen militia would put into play the “total strength of the country” as first responders and would be in place should the state militia and/or the federal forces become compromised by defeat or tyranny. George Washington wrote in his Sentiments that the immediacy of response by the militia was paramount to our security. He also wrote: “Were it not totally unnecessary and superfluous to adduce arguments to prove what is conceded on all hands the policy and expediency of resting the protection of the country on a respectable and well established militia...” (Sentiments). Under the US Constitution and the statutes of the several states the militia is deemed to be well regulated when it has three components: 1. Organized militia; 2. Unorganized militia; 3. Citizens that keep and bear arms. The militia is to: 1. Execute the laws of the Union; 2. Suppress insurrections; 3.Repel invasions; 4. Respond at a short notice to any “very interesting emergency”; 5. Remove the need for a standing army in a time of peace; 6. Maintain a pool of trained personnel to be drafted into the organized militia or federal forces; 7. Develop and maintain pride, honor and patriotic regard in the public; 8. Resist any “sudden impression which might be attempted by a foreign enemy”; 9. Provide the security necessary for a free state. This third component of the militia is not the unorganized state militia. Members of the organized and unorganized state militia are certainly part of the citizen militia and provide the trained and disciplined component. The citizen militia also includes those citizens who are not eligible for the organized or unorganized components of the state militia. Through this militia the people reserved to themselves the right and means to alter their government as deemed necessary by the will of the majority. This is the sentiment express in the Virginia Bill of Rights #3 (see addendum). This sentiment certainly reflects the legality and necessity of the steps taken by the colonists beginning with the Declaration of Independence. It is not reasonable to believe that the founders denied to themselves this tool that served them so well against the British. It is not revealed in history that the founders restricted themselves to suffrage (voting) for the purpose of controlling the appetite of those with governmental power – foreign or domestic. Rights of the people The Bill of Rights, also known as the first ten amendments in the US Constitution, enumerates several human rights that every person has. It is not a complete list but addresses selected rights that clarify our relationship with government. These rights are not granted by the Constitution – they are natural rights that existed before the Constitution and cannot be denied nor infringed upon by the government. The Second Amendment in the Bill of Rights enumerates two rights. The first is the right to a “well regulated militia”. The second right is “the right to keep and bear arms”. The desired militia was made a reality by the people keeping and bearing arms. Conclusion The militia of Second Amendment takes an individual right (the right to keep and bear arms) and puts it to use to benefit the whole of society. Under this amendment the individual can act alone for self defense or can act in concert with others as a militia as needed. A well regulated militia demands an armed citizenry. We have a right to keep and bear arms and we also have a right to a well regulated militia. A well regulated militia meets the needs of the state as well as the needs of individuals. Sources The Constitution of the United States, Article 1 Section 8 Clauses 15-16, Article 1Section 10 Clause 3, Second Amendment. The Constitution of the State of New York The Military Laws of New York State The Virginia Bill of Rights, June 1776 The Writings of George Washington from the Original Manuscript Sources, 1745-1799, Writings 26: 374—76, 388—91, Edited by John C. Fitzpatrick. 39 vols. Washington, D.C.: Government Printing Office, 1931—44. ADDENDUM The first four sections of the Virginia Bill of Rights as it reflects the sentiments of the majority of those who gave birth to this nation especially as to their concern about overreaching government: 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. 3. That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick (sic) weal. (public will) 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick (sic) services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary. Captain E. Thomas Taber, United States Merchant Marine Captain Taber is retired from 40 years of Federal Service operating combat and auxiliary vessels. He is a graduate of The State University of New York with a B.S.inTransportation Education. He has penned several articles on the militia over the years.
Posted on: Sat, 29 Mar 2014 12:06:30 +0000
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