Glenn Harlan Reynolds 5:24 p.m. EDT March 9, 2014
Our Framers didn't envision a free state with the current level of government control.
The Second Amendment to the United States Constitution reads, "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."
For a while, some argued that the so-called "prefatory clause" — "A well regulated Militia, being necessary to the security of a free State" — somehow limited the "right of the people" to something having to do with a militia. In its recent opinions of District of Columbia v. Heller and McDonald v. Chicago, the Supreme Court has made clear that the Second Amendment does recognize a right of individuals to own guns, and that that right is in no way dependent upon membership in a militia. That seems to me to be entirely correct.
But there is still that language. If a well-regulated militia is necessary to the security of a free state, then where is ours? Because if a well-regulated militia is necessary to the security of a free state, it follows that a state lacking such a militia is either insecure, or unfree, or possibly both.
In the time of the Framers, the militia was an armed body consisting of essentially the entire military-age male citizenry. Professional police not having been invented, the militia was the primary tool for enforcing the law in circumstances that went beyond the reach of the town constable, and it was also the primary source of defense against invasions and insurrection.
Calling out the militia thus meant calling out ordinary citizens, trained in military tactics (that's the "well-regulated" part), bearing their own arms. The Framers — who had a deep and abiding fear of professional standing armies because of abuses by the British Crown — thought this safer. A professional standing army could turn on the people, placing its loyalty with its paymasters rather than with those it was supposed to protect. The militia, on the other hand, couldn't betray the people because it was the people.
Even short of revolutions and coups, the militia had a different character in ordinary law enforcement than professionals possess. If called upon to enforce an unpopular law, or to enforce the law in an oppressive or unpopular way, the militia could drag its feet and fail to perform. (In this sense, the militia was like a jury, which is free to acquit even a guilty defendant if it thinks conviction would be unjust. In fact, Yale Law Professor Akhil Amar has likened the militia to jurors with guns because, like the jury, it was an institution made up of the people, through which the government must act, and one not susceptible to the kinds of corruption besetting professional institutions).
As Amar writes:
Like the militia, the jury was a local body countering imperial power — summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits.But although the militia survives in vestigial form in the statute books, as a functional institution, it no longer exists. For law enforcement, the militia has been replaced by professional police, with SWAT teams, armored vehicles and Nomex coveralls; for military purposes, the militia has been replaced by the National Guard, which despite a thin patina of state control is fundamentally a federal military force.
This makes life easier for the federal government. In 1912, when the federal government tried to send militia units into Mexico, the militias balked, noting that the Constitution allowed them to be called out only to repel invasion, suppress insurrection, or enforce the law — not to invade other countries. Surprisingly, perhaps, Attorney General George Wickersham agreed, leading to a change in the law that produced the modern-day National Guard, a force that is not so limited. Since then, America has been far more active abroad.
But this departure from the system the Framers set up has encouraged more intrusive law enforcement at home, and more military action abroad. So I'll ask you: If a well-regulated militia is necessary to the security of a free state, then are we insecure? Or unfree? Or both?
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.