Having established that the Founders defined the militia as the whole of the People and not the army (or National Guard), let us now consider whether or not the militia is under the control of the government. And if so, to what extent does the government’s control extend over the militia? We’ll start by remembering the context of their times.
The Founders expressly asserted that all power rests with the People, not the government. As its creator, it is not the People who serve the government, but the government which serves the People. As the creator of government, the People retain the authority to change or abolish that same government. This relationship of ultimate authority over the government includes the militia and the individual right to keep and bear arms:
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
— James Madison, Federalist No. 46, January 29, 1788
“…the ultimate authority, wherever the derivative may be found, resides in the people alone…”
— James Madison, Federalist No. 46, January 29, 1788
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”
— Thomas Jefferson, letter to to John Cartwright, 5 June 1824
These are the words of just two of the Founders, but they are two of the most central figures in the shaping and establishment of our system of governance. As such, they are authoritative on the original intent of the Founders on the issue of which is superior: the government or the People. They are quite clear that it is the People who stand over the government. By extension, this applies to the militia, who have been defined as the People, where all political power and authority lies.
However, at the same time the Founders asserted the People are over the government, they also included language in Article I, Section 8 of the Constitution, as well as the Second Amendment that could be interpret as granting the government control over the militia. This is where many people seem to get confused — especially if they read the Constitution and Second Amendment with a modern understanding of language and government. But it isn’t that difficult to determine the Founders’ original intent on this point.
First, if we interpret Article I, Section 8 and/or the Second Amendment’s stipulation that the militia be well regulated as placing the militia under government control, it would create a contradiction with the Founders’ expressed intentions that the militia remain independent from the government. This is because they would have placed their very means of resisting government tyranny solely into the hands of that very government. Therefore, we must see if we can find an understanding of the Founders’ language that resolves this apparent contradiction for, if we can, it will most likely help us better understand their original intentions.
We’ll go back to the historic context once more. We have already mentioned that the Founders had just fought the Revolutionary War, but we must also remember they had just seen the failure of the Articles of Confederation. The Articles of Confederation failed because they did not provide for a strong enough central authority. They could not force the States to keep their part of the Social Contract. the Founders were anything but naive, so they would have understood that the lack of a central command would be even more devastating to the militia. Therefore, just as they gave the Federal government limited authority over the States, they gave it limited authority over the militia.
Today, we think of the Federal government as a national government — but is was never meant to be. It was only intended to be an arbiter between and over the States, not the People. The States remained sovereign. if it ever became tyrannical, they could object to and even resist the Federal government. Still, so long as the government functioned within its lawful limits, the States agreed to recognize the Federal governments authority. But this agreement did not mean the Federal government had direct control over the several States. It only had authority over those things which fell within the realm of the Enumerated Powers specified in the Constitution and nothing more.
Well, the same relationship exists between the government and the militia: the government has limited authority over the militia. It is tasked with insuring the militia is properly armed, organized in a military manner, and that it trains in the current military disciplines. The government is also given the authority to call out the militia in times of civil unrest or insurrection, rebellion and times of war. That’s it. This is the extent of the authority over the militia granted to the government. And even then, that authority is only good if the government is operating under the restrictions of the Constitution as it was understood at the time of ratification!
Now, look closely at the authority the Founders granted the government over the militia. They are to insure the militia is well armed, but the Founders did not grant the government the authority to buy or store those weapons. The Founders said the government is to insure the militia is well organized and trained, but there is no provision to allow the government to stipulate that structure or provide for that training. it can do all of this for an army, should Congress raise one. But the militia is not the army, and there is no Enumerated Power authorizing government expenditure on the militia. Therefore, there is no specific language in regards to the arming, organizing and training of the militia that places it perpetually under government control. That leaves the calling out of the militia.
At the time the Constitution was ratified, the Federal government was tasked with placing certain demands upon the several States, such as levying proportional taxes on each State. However, the Federal government had no authority to tell the States how to raise those taxes because the authority to raise Federal revenue did not give the Federal government control of the States. It only had the authority to tax, and then, only so long as it was operating lawfully. Again, the same contractual relationship exists between the government and the militia. The government has the authority to call out the militia for specific reasons, and then, only for as long as those conditions apply. Therefore, as with the authority to tax, there is nothing in the language authorizing the government to call out the militia that grants perpetual control over the militia.
If we understand the historical context, the Founders’ goals, and their embrace of Natural Rights, it should be readily apparent that they would never subordinate their Natural Right of self-defense to anyone, especially to the government. To do so would mean surrendering their only defense against future tyranny. It would also place them in direct contradiction with themselves. Therefore, it is unreasonable to assume that the militia is a part of the government or under the perpetual control of the government — especially when we consider that the militia is the People, who created the government. It would be more reasonable to assume that like the States, the militia is to subordinate itself to the government, but only if and when it is acting within its proper and lawful authority. This means, just as the States are sovereign, the militia is independent of the government,
ADDENDUM: 28 Feb 2018 (please follow this link for an explanation of this addendum)
I have sense learned that my original argument in this post is flawed in that it conflates two separate issues related to understanding the original intentions behind the Second Amendment. I should have first addressed what the Founders meant by ‘militia,’ then argued as to whether or not that the right to keep in bear arms in connection to the militia also includes the right of an individual to keep and bear arms. For the same reasons explained in my above link (please follow this link for an explanation of this addendum), I will not split this post into two new posts addressing each part of this issue separately. Rather, I will keep with my attempt to tackle both at the same time, but I will finish driving my argument to the conclusion I should have made from the start.
Now, before I try to argue that my original conclusions are still valid, or worse, expand on them, let me stop to make sure I acknowledge the position held by most people who reject the claim that the Second Amendment protects an individual right to keep and bear arm. I will do this by presenting two of the most powerful arguments I have found the other side has to offer:
Both of the arguments in these links disagree with the conclusion that the Second Amendment protects an individual right to keep and bear arms. Instead, they both argue that the Second Amendment only protects the right to keep and bear arms in connection with the militia. In my opinion, the argument in the first link is the strongest, but they are both necessary reading to this debate as they both present strong, rational arguments for their conclusions.
Now, assuming that the reader has read both of the arguments in the links above, let me state that I do not disagree with their conclusions! Yes, you read that correctly: I agree that the Second Amendment protection is connected to the membership in the militia. However, it is also fallacious to stop there, and that is the mistake made by all those who argue that this is where the Second Amendment’s protection ends: with the militia. After arguing that the Second Amendment is connected to membership in the militia, one must be sure to define what the Founders meant by ‘militia.’
I have already argued that the ‘militia’ is the People: the whole of every individual citizen. I did that in my original post. Still, in order to make sure the reader knows I have not ‘cherry-picked’ quotes from the Founders to paint a false impression of what they meant by ‘militia,’ I offer this link:
And to offer a counter to the word-parsing in the second link supporting the conclusion that our Second Amendment rights end with the militia:
Now we apply simple reason to this debate:
— We start by accepting the claim that the Second Amendment only gives the right to keep and bear arms to the militia.
— The Founders said that the militia is us, the People: the whole of every individual citizen.
— Therefore, if the militia is the people; and the people is a collection of the individual citizen; and the People do not suddenly become another, single entity when they are organized together as the militia; then the right to keep and bear arms must extend to each individual member of the militia.
— And if the right extends to the individual; whereas those individual members are individual private citizens; it follows that the Second Amendment right to keep and bear arms extends past the militia to the individual, private citizen.
but this is only one of two possible arguments, both of which end with the conclusion that the right to keep and bear arms is an individual right. Here is the second:
— We start by acknowledging that the Founders said the proper way to interpret their intentions is to go back and examine their original goal in relation to the times in which they lived.
— The Founders were seeking to preserve liberty and individual rights, and to defend them from all forms of tyranny.
— Tyranny is described, loosely, as forcing one’s will upon another.
— The Founders understood this to be the trampling of another person’s Natural Rights.
— The Founders said that Natural Rights are a product of Natural Law, and that such Natural Law is self-evident (the Declaration of Independence).
— The Founders also said that Natural Law was to be understood as John Locke expressed it, not as Thomas Hobbs did.
— Under Locke’s view of Natural Law, a government is the result of a Social Contract between all members of a given society.
— The Founders also believed that Natural Law prevents anyone from being able to give or demand anything in a contract that they do not possess, themselves.
— Therefore, in the formation of our government, the individual Colonists could not grant a right to the use of weaponry to either local, State or Federal government unless they possessed such a right, themselves.
— Which means, if they did grant such a right — and they did — then they must have each possessed the individual right to that same force (in this case, the right to keep and bear arms independent of the government).
— Furthermore, since the Founders said Natural Rights are inalienable to the individual, to then argue that the Second Amendment grants a right, or takes it away is to turn the whole of everything the Founders said and believed on its head.
Therefore, the most reasonable conclusion, and the only conclusion that does not negate the entirety of the Founders’ beliefs, is that they recognized the individual right to keep and bear arms — especially since any and every argument for the need of the militia to protect against a tyrannical government and its armies would apply equally to a group of citizens needing their own arms to protect against a tyrannical State government and its militia. And les anyone bring up Hamilton’s assertion that the militia would never turn on itself, let me remind the reader that Hamilton, as with the link from the Federalist page provided above, were just that: Federalists. And as history has shown, the Federalists were wrong in most every one of their assurances that their beliefs would provide security. In fact, it was the Anti-Federalists, whose concerns have been borne out by history, who forced the ratification of the Second Amendment in the first place — and they did so specifically to protect against the very twisting of the Founders intent that we have seen in our nation since the rise of the Progressive era in the late 1890’s.