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What is Well Regulated Militia?

Well Regulated Militia is an organization dedicated to educating American citizens about their second amendment rights as they pertain to “unorganized” militiasUnorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia and the right to bear arms. We will be organizing training events, discussing firearm policy and current events, creating how-to instructions for lawfully making your own firearms, organizing group buysGroup buying, also known as collective buying, offers products and services at significantly reduced prices on the condition that a minimum number of buyers would make the purchase. to save members money, and much more. If you believe that a well regulated militia is the best security for a free state and that the right of the people to keep and bear arms shall not be infringed, please enter your email and we will contact you when our new website is live!

The History & The Facts

The original Constitution, which 39 state delegates signed on September 17, 1787, after a four-month long Constitutional Convention, made it clear that any newly formed Federal Government of the United State of America would have limited powers. While the original Constitution expressed the notion of limited power within the Federal Government, it provided few specific rights and liberties for the people. Without these individual rights attached to the Constitution, many state delegates believed that a strong Federal Government could potentially abuse its citizens by denying them basic rights. These delegates, called Anti-Federalists, were led by Virginia’s Patrick Henry, who did not sign the original Constitution and demanded a Bill of Rights for the people, refusing to support ratification of the document without amendments attached to it. Reluctantly, the Federalists, led by Virginia delegate James Madison (the Father of the Constitution), being its main writer, and New York delegate Alexander Hamilton agreed to the amendments in order to complete ratification.


Alexander Hamilton

Patrick Henry

James Madison


The Federal Government of the United States under the U.S. Constitution began operation on March 4, 1789, and on September 25, 1789, the first Congress adopted 12 amendments to the Constitution. In 1791, the states ratified 10 of those amendments. Sharing the Second Amendment of the 10 amendments are two ideas that the framers of the Constitution constructed to align with one another, although the specific reason for the alignment is not altogether clear in the eyes of many. The ambiguity of their relationship to one another has created division in the years since ratification. Additionally, the American populace has tested both ideas as separate entities through the years because of the amendments simple phrasing and lack of elaboration. Therefore, interpretations of the amendment are vast, and its place within the context of today’s society adds to the complexity of the 27 words that make up Amendment II, which read:

“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 U.S. Constitution is the world’s longest surviving written charter of government, according to multiple sources, including the National Archives and the Encyclopedia Britannica. It is a miracle of invention, considering that the average lifespan of a national constitution is 17 years since 1789, according to University of Chicago law and political science professor Thomas Ginsburg.

 

What does the Second Amendment mean? Is it still relevant today? 

Yes, the 2nd Amendment is still relevant today. However, because of the age of the U.S. Constitution, it seems reasonable to test it from time to time. Consider that since its ratification, the U.S. has expanded by 37 states from the original 13, and the population of the nation has increased by more than 320 million citizens. In particular, the Second Amendment must wade through conscientious waters as the technology of weaponry has advance considerably since the creation of the Second Amendment, moving from muskets to machine guns to drones and nuclear weapons. In all, the Supreme Court has tested the interpretation of the Second Amendment on seven occasions but have ultimated ruled that “The Second Amendment protects an individual right to possess a firearm unconnected with service in the militia”.

 

 

Early Supreme Court Decisions Were Anti-Gun

United States v. Cruikshank (1875)

The first test was found in United States v. Cruikshank (1875), which involved the use of a firearm, that was deemed illegal, during the murder of more than a hundred black men over a political dispute. The overall decision by the Court was complex and convoluted, but one part of the decision was clear, which is that the Second Amendment does not prohibit state and municipal regulation of firearms. The Court issued the following: “The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”

Case Details

Presser v. Illinois (1886)

In Presser v. Illinois (1886), The Supreme Court reiterated the stance found in United States v. Cruikshank, by applying it to state regulation, stating the following: “The provision in the Second Amendment to the Constitution, that ‘The right of the people to keep and bear arms shall not be infringed’ is a limitation only on the power of Congress and the national government, and not of the states.” In this case, the Supreme Court also clarified notions involving a well-regulated militia by disposing of the argument that individuals have the right to assemble as a militia independent of state or federal authorization by issuing the following statement: “It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof.”

Case Details

Miller v. Texas (1894)

Miller v. Texas (1894) was an elaborate case involving the murder of a police officer with an unlicensed handgun. In the proceedings, Franklin Miller questioned the validity of a Texas gun restriction law, saying it violated the Fourteenth Amendment, which states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The addition of the Fourteenth Amendment into the fold of individual rights, which Congress ratified in 1868, either further complicates the voice of the Second Amendment, or clarifies its message by making it harder for states to regulate, restrict, or “infringe up” gun ownership. However, in this case, regardless of the Fourteenth Amendment, the Supreme Court again ruled that the Second Amendment did not apply to state laws, in this case, Texas laws.

Case Details

United States v. Miller (1939)

In United States v. Miller (1939), the Supreme Court tied the Second Amendment’s two ideas, Militia and Arms, together for the first time in a dispute over the transportation of an unregistered sawed-off shotgun across states lines, which violated the National Firearms Act of 1934 that regulated short-barreled rifles, machineguns, and silencers. The court ruled that the Second Amendment did not protect the charged man because it did not assist in the cause of a state Militia or the defense of the United States, stating the following:
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated Militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Case Details

Lewis v. United States (1980)

In Lewis v. United States (1980), while it had no direct link to the Second Amendment, it discussed the merits of the Gun Control Act of 1968 as well as other laws that prohibited felons from owning a firearm. The Supreme Court said the following about gun control laws: “These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.” Afterwards, the Court called upon statements found in United States v. Miller to conclude the Court’s point, saying that the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well-regulated Militia.

Case Details

Two Supreme Court Decisions Change the Rules Regarding State Gun Control

In District of Columbia v. Heller (2008), a case reached the Supreme Court docket that dismantled previous court case’s claims that while Congress could not infringe upon the right to bear arms, states did have the power to regulate and restrict gun ownership. The Fourteenth Amendment did a lot to further the individual rights of America citizens while simultaneously stripping states of their autonomy from the proscriptions imposed upon Congress that are found in the Constitution and its Amendments. District of Columbia v. Heller (2008) made it clear that states had little say in the direction of modern gun policy. The case also reversed the ideas found in previous Supreme Court decisions that the Constitution intentionally aligned and attached the right to keep and bear Arms with the right to maintain a well-regulated state Militia.

Richard Heller (Courtesy of the Heller Foundation)

The complaint began after Dick Heller, a District of Columbia special police officer authorized to carry a handgun while performing his duties at the Federal Judicial Center, attempted to register a handgun that he intended to keep at his D.C. home. The District of Columbia denied his request under a provision found in D.C.’s Firearms Control Act of 1975. Heller took the case to court, claiming that two provisions in the Firearms Control Act violated his Constitutional rights under the Second Amendment. One of the provisions prohibited the possession of handguns, and the second one required that lawful firearms in the home be unloaded and disassembled or trigger-locked. After Heller’s case made the rounds in the lower courts, the United State Supreme Court ruled that the two local gun laws violated the Constitution. The decision had opposition, though, as the Supreme Court justices voted 5-4 in favor of Heller.

 

The Supreme Court Decides “The Second Amendment protects an individual right to possess a firearm unconnected with service in the militia”

While the majority of the Court ruled that the “The Second Amendment protects an individual right to possess a firearm unconnected with service in the militia,” and that individuals had the right to use that firearm “for traditionally lawful purposes, such as self-defense with the home,” four of the nine Justices disagreed.

As one might assume, for the most part, known political ideals divided the chamber. Two of the dissenting justices, Ruth Badar Ginsburg and Stephen Gerald Breyer were appointed by Democratic presidents. John P. Stevens and David Souter cast the other dissenting votes, and while Republic presidents appointed them, they both voted reliably with the courts liberal members. In fact, in 2003, a statistical analysis of voting patterns showed that Stevens had become the most liberal member of the court. Those Justices siding with Heller, were all appointed by a Republican president, and included John Roberts, Samuel Alito, Clarence Thomas, Anthony Kennedy, Antonin Scalia.

When Justice Scalia delivered his ruling opinion to the Court, which interpreted certain measures of the Second Amendment, he set out to make his reasoning clear, as it veered from previous Court decisions. First, he said that the original delegates that ratified the Second Amendment wrote it to be understood by the voters; its words and phrases were used in a normal and ordinary way; therefore, they exclude secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Supreme Court Justice Antonin Scalia

Next, Scalia declared that the framers of Second Amendment divided it into two parts. The first part secures the right of the people to a well-regulated militia. The second secures the right of the people to keep and bear arms. The two do not work in unison; they are separate ideas. The District of Columbia argued that the Second Amendment was one complete idea, stating that only members of a militia had the right to bear arms. Justice Scalia thwarted that notion even though it had Supreme Court case precedent. Scalia said that “The right of the people” refers to individual rights and belongs to all Americans. Third, he also clarified numerous terms found in the Second Amendment in order to clarify the phrase “keep and bear Arms”:

  • According to two popular dictionaries of the era in which the delegates created the Constitution, “keep” meant “to retain, not to lose,” and “to have in custody,” as well as “to hold; to retain in one’s power or possession.”
  • The dictionaries defined “bear” to mean “carry.”
  • The word “Arms” meant “weapons of offence, or armor of defence” and “anything that man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,”. Therefore, the term “Arms” is not specific to military use.

Therefore, “keep and bear arms” means to “have weapons in custody and carry for offence.” Finally, Scalia explained that just as modern forms of communication are included in the First Amendment, and modern forms of search are included in the Fourth Amendment, the Second Amendment extends “arms” to include all instruments that constitute modern forms of bearable arms, even those not in existence when the country’s Founding Fathers created the Amendment.

In McDonald v. City of Chicago (2010), a municipality denied the registration of a handgun to Mr. Otis McDonald, a law-abiding citizen, veteran, and Second Amendment advocate. Initially, the Court Of Appeals for the Seventh Circuit had upheld the ordinance which allowed Chicago to refuse all attempted handgun registrations since 1982 after a citywide handgun ban was passed. McDonald and other Chicago residents filed a lawsuit which ultimately became McDonald v. City of Chicago.

Otis McDonald, 2A Advocate(Courtesy of NBC News)

The same Supreme Court justices from District of Columbia v. Heller presided over the case, with the exception of newly appointed justice Sonia Sotomayor, a President Barrack Obama appointee. The Supreme Court found the local gun restriction law to be in violation of the Constitution by a 5-4 vote. Again, votes fell along the lines of known political ideals of liberalism and conservatism. This was a landmark decision because it guarantees that the Second Amendment applies to state and local governments as well as to the federal government.

 

The Original Intent of the 2nd Amendment & The Creation of the Bill of Rights

James Madison initially wanted to incorporate the amendments to the Constitution into the text of the original document. However, other delegates disagreed with the idea, and in the end, Madison and company attached the Bill of Rights to the tail of the Constitution. Madison and crew arranged the 10 amendments in a particular order, and many people today consider the Founding Father’s high placement of the Second Amendment within the first 10 Amendments as a measure of its importance.

Amendment I, people argue, is the most important of the amendments because it makes it clear that the Federal Government could not establish a national religion, and could not suppress the right to free speech, the right to a free press, the right to peaceful assembly, or the right to petition the Government.

Right after it, we find Amendment II, appearing to many as a continued narrative on individual rights. However, there is more evidence that shows that the delegates ordered the amendments according to how they would naturally fit within the existing composition of the Constitution; and not ordered by perceived importance. For example, the First Amendment relates to the powers of the legislature, and begins with “Congress shall make no law”, so its placement would naturally occur after Article I, Section 8, which begins with “Congress shall have power,” and within Article I, Section 9, which is a list of proscriptions. Because the Second, Third, and Fourth Amendment also limit what Congress has the power to do, they would also fall into Article I.

Article II of the Constitution moves onto executive power, but there are no amendments within the Bill of Rights that pertain to the executive branch. Article III of the Constitution establishes the court system, so Amendments Five through Eight fall into that section because they deal with juries, bail, and cruel and unusual punishments. Amendments Nine and Ten would be a postscript to the Constitution because they deal with the interpretation of the Constitution and the other amendments in their entirety.

The conundrum is how the Second Amendment slides between the two ideas found in the First and Third Amendments. The First Amendment clearly deals with the individual rights of the people to particular freedoms that include religion, speech, press, assembly, and government petition. The Third Amendment deals with power of Congress during war, providing that Congress could not quarter soldiers in the homes of citizens. In the middle, we have the Second Amendment that discusses a militia like those found in Lexington and Concord where the first battle of the Revolutionary War began. The colonial militias were autonomous groups that self-trained in weapons, tactics, and strategy several times each year, and were responsive to threats against their territory from any enemy that might venture into their town. That threat eventually became the British Redcoats, and the militias held their own during the prologue of war as the Continental Army formed to coordinate the military efforts of all the colonies during the Revolutionary War. The importance of the militia to those early American delegates is obvious. Before the Continental Army organized to a full realization under George Washington, the only line of defense in colonial America was the individual militia groups that dotted the landscape.

 

Why is the idea of “A Well Regulated Militia” coupled with the “Right Of The People To Keep and Bear Arms”?

Coming back to the Second Amendment, the question for some becomes, why is the idea of “a well regulated Militia” coupled with “the right of the people to keep and bear Arms.” The argument for those in the “gun control” quarters is that if the right to bear arms is an individual right, it would be found in the First Amendment where individual rights are targeted in a clear and meaningful way. Instead, Madison and his men placed the right to bear arms after those First Amendment rights and coupled it with the delegate’s stance on militias.

There are many who debate the meaning behind the right of each state to maintain a well-regulated militia, but no one has ever tested its definitions in a real way at the Supreme Court level. For the most part, citizens understand that each state’s National Guard provides for this nation’s militias. Some disagree, but the National Guard and the United States Government do not.

The National Guard takes the stance that the “first militia regiments in North America were organized in Massachusetts. Based upon an order of the Massachusetts Bay Colony’s General Court, the colony’s militia was organized into three permanent regiments to better defend the colony.” Today, the descendants of these first regiments make up the 181st Infantry, the 182nd Infantry, the 101st Field Artillery, and the 101st Engineer Battalion of the Massachusetts National Guard. “December 13, 1626, thus marks the beginning of the of the organized militia, and the birth of the National Guard’s oldest organized units is symbolic of the founding of all the state, territory, and District of Columbia militias that collectively make up today’s National Guard.”

The United States Congress codified the notion that each state’s National Guard is its militia by order of the Constitution by enacting the “Militia Act” in 1903, and subsequent acts pertaining to the National Guard over the years. Each time the act evolves, the Federal Government takes bolder steps towards complete ownership of its identity. However, the National Guard’s roots are found in English common law and American colonial customs, and the first Militia Act that the newly-formed United States enacted was in 1792, the year after the states ratified the Bill of Rights. From that early date, the President of the United States could call upon the militia as needed to serve the needs of the Federal Government. This Act required every able-bodied man from 18 to 45 to serve in a militia, which the state legislature would direct, and these men had to “arm” themselves with a musket or rifle at their own expense and participate in a yearly military inspection. The Federal Government called state militias into action during the War of 1812 and the Spanish-America War in 1898. Through the 1800s, the militia system became an unorganized and under-funded entity that required reform.

 

“Organized Militias” vs “Unorganized Militias”

The Militia Act of 1903 organized the National Guard into a component of the U.S. Military with funding provided by both the Federal and state governments, and made it clear that the U.S. Government could federalize the National Guard for national security reasons. Therefore, National Guard members recite a dual oath to the United States and their state government. Although, to complicate matters, the Militia Act of 1903 classified the militia in two ways:

  • The organized militia, which consists of the National Guard and the Naval Militia
  • The unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

The Act goes into great detail about the “organized” militia, but nothing more is said to define the “unorganized militia”. Basic theory suggests that the unorganized militia pertains to able-bodied men that are not in the National Guard, Reserves, or the U.S. Military, who are subject to military conscription through the Selective Service System.

 

The Bedrock of the Second Amendment and its Application Today

King James II

The bedrock of the Second Amendment is found in the Glorious Revolution that occurred in 1688 on the British Isles. The Revolution began when influential Protestants thought King James II was attempting to suppress and potentially destroy the Protestant religion because of his stanch Catholic loyalty. As part of this extirpation, Protestants were said to be “disarmed” of their firearms. This fear led to an insurrection and the collapse of King James’s regime as well as his exile. Afterwards, William III and Mary II, James’s daughter, took over the Monarchy, and created the English Bill of Rights of 1689 that restored “ancient rights”, one of them being “the right” to have arms. As the American Colonies grew larger, beginning with the establishment of a permanent colony in Jamestown Virginia in 1607, settlers required arms for hunting and protection, and were afforded the right to own firearms because of ancient rights, followed by the English Bill of Rights of 1689, which extended to the colonies. When it came time for the American Colonies to separate themselves from the British, the colonists were heavily armed. The only way for the Redcoats to gain an advantage over the weaponized militias that existed in the Colonies was to seize hundreds of barrels of gunpowder in storage locations around the burgeoning America. Early on, the British had success, but the colonists considered this seizure as an act of war, and the Revolutionary War began.

Therefore, when the 13 original states unified to form the United States, the delegates called upon the lessons they learned from the War and British control, and required in their Constitution that ancient rights could not be taken from individual citizens by a central government. They also made it known that armed militias were necessary in order to maintain those individual rights if the Federal Government became tyrannous against them, as they felt the British Monarchy had become before the War.

 

Should The Second Amendment Be Updated To Account For Modern Society & Technological Advances?

This is a difficult question for many reasons. Obviously not everyone should be able to posses nuclear technology, drone controlled armies, and other advanced weapononry the future has in store for us. Pragmatic minds certainly understand the original intent of the Constitution and the Bill of Rights, and it is why these rights are still in place and have been protected in one way or another by the Supreme Court for all these years. The question has become, though, whether or not the Second Amendment should be updated to align with the current state of the United States because of crime-riddled urban areas and high profile mass killings. Some people believe in the idea that Constitution is dynamic and should be viewed as a “Living Constitution” with evolving interpretations that are contemporaneous with modern society. The Supreme Court makes decisions based on their interpretation of the Constitution, but the Court does not amend the Constitution through their decisions. Changes to the constitution by amendment are proposed either by Congress through a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called by two-thirds of the State legislatures. From 1789 to January 3, 2017, there have 11,699 proposed amendments, but only 27 of those propositions have actually led to amendments, and 10 of those came with the Bill of Rights. An example of a proposed amendment is Senator Barbara Boxer’s proposal on November 15, 2016, to abolish the Electoral College and instead use the results of a direct popular election to decide the President of the United States. The proposal has gone nowhere like some many proposed amendments before it.

The last amendment to be ratified was the Twenty-Seventh Amendment, and it was submitted by Congress to the states for ratification in 1789, but it did not initially pass through. In 1992, nearly 203 years later, it finally became Constitutional law, prohibiting Congress from passing any legislation that would increase or decrease their current salary.

The process to amendment is difficult, and because of crippling political partisanship that is wrapped in party loyalty and polarized on a daily basis, any change to the Second Amendment will certainly have to develop when one party owns two-thirds of the votes in Congress. The question by many today is whether the Second Amendment should be amended to deal with current issues of gun violence in the United States. Because the militia and gun ownership are bound by one amendment, the notion is complex. In essence, militias are designed to protect Constitutional rights whether from the tyranny of the Federal Government or the invasion of a foreign entity, which makes it hard to say that militias are irrelevant in America’s current age, or any age. Additionally, in order to have an effective militia, either organized or unorganized, firearms are required– but should everyone have the right to gun ownership or only militia members? To curb violence in America, gun restrictions could hypothetically provide some relief, but overturning the Second Amendment and taking guns from the public puts the entirety of the Constitution in danger for the reasons discussed.

Unfortunately, the U.S. Federal Government in its current state does not provide a bi-partisan think tank capable of working together to solve the issues surrounding the country’s violent culture, which is a complicated issue that is a tangle of matters that includes mental instability, poor education, oppression, varying ideologies, anti-nationalism, and the easy accessibility of guns on the black market.

What are your thoughts on the subject? Comment below!