The NRA’s Unlikely Role Model, Ctd

Several readers beg to differ with this one:

“The right to bear arms was an essential right in 1787 because of the risk of Indian incursion, not as a bulwark against tyranny or a defense against foreign invasion.” Your reader is missing a bit of history of the Revolution. The fact is that the British authorities were doing exactly what the correspondent suggests they were not – seizing arms (gunpowder and weapons) – in a bid to squelch resistance in New England. The inaugural event of the Revolution, the April 19 raid on Lexington and Concord, was in fact triggered by Army regulars (Redcoats) marching to seize these arms. Nor was this the first instance of this behavior, there were many raids on New England’s powder houses in the preceding year. What Paul Revere and his fellow riders achieved was to get word of the impending seizure out in enough time for the well-regulated militias of the towns to the West and North of Boston formed up and able to resist.

In short, a tyrannical government seizing arms in a bid to prevent citizens from protecting their liberty was a very real experience for the Constitution’s framers and to suggest otherwise “shows a complete lack of understanding of both the document and the history of its writing.”


If your reader is interested in knowing what the Founders actually considered a “well regulated militia” to be, I refer him or her to the Militia Acts of 1792 passed by the second Congress, in which a good number of those Founders were sitting and knew perfectly well what they meant by “well regulated”. And what they meant bears absolutely no resemblance whatsoever to what your reader just wrote.

Those acts conscripted every able bodied white male between 18 and 45 years of age in the country (with some exceptions based on occupation) into the militias. It mandated they be organized into divisions, brigades, regiments, battalions and companies organized by the state legislatures. It required all members in those militias to provide specific items of equipment (musket, ammo, knapsack, bayonet, gunpowder, etc.). To regularly report for muster and training. Militia members were subject to court martial for disobeying orders. And they were at the call of the president to either defend the nation against invasion or to enforce the laws of the nation if he felt it necessary to employ them to that end. One example is the Whiskey Rebellion, when President Washington personally marched 13,000 militia out to Pennsylvania to inform a bunch of farmers threatening tax collectors that, oh yes, they WOULD pay their taxes.

THAT is what the Founders idea of a well-regulated militia was. We know because they created them. The idea that it was any yahoo with a rifle who wanted to call himself a member of “the militia” is a modern invention created by people like the NRA.


I have to take issue with your reader’s relatively condescending comment that the earlier reader comment showed a “complete lack of understanding of the [the Bill of Rights] and the history of its writing.”  I think the evidence is strong that Madison modeled the Second Amendment after the English Declaration of Rights of 1689, and that the amendment’s inclusion was due to the fear in the Southern States that the centralization of military authority in Congress could subject them to the risk of slave rebellions if Congress were neglectful of the safety of the Southern slave owners.  (I recommend Volume 31 of the University of California at Davis Law Review (1998) on page 309 for the article “The Hidden History of the Second Amendment”, for an analysis of this point.)

What is clear is that the idea that the Second Amendment’s inclusion in the Bill of Rights was driven by some wish to arm insurrectionists so as to renew the Tree of Liberty in a Jeffersonian sense, is simply not supported by the records of the discussions leading up to it.  The 1994 article by Joyce Malcolm on insurrectionists rights theory,goes to great lengths to explain away English history for inclusion of arms provision in the 1689 Declaration, in order to come up with this right.  This fore-bearer to our Second Amendment provided “[t]hat the subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law.” It is more likely that the “as allowed by law” language was to define the right’s applicability to parliament as opposed to the King, and was not a call to create in individual right.

I think it is clear that there were multiple reasons for the Second Amendment, but insurrectionists’ rights were not high among them.  At one level, the amendment supported conscription for the militia by having a source of guns among the population, and at another, the right to have the militias addressed the fears in the south that inadequate financing or deployment of the militia could be used by the Northern states to end slavery.

One more:

Your reader’s criticism of another reader who had earlier referred to the NRA’s having found a Court willing to ignore the words “militia” and “well-regulated” in the Second Amendment is itself flawed, at least with regard to its reliance on the amicus brief filed in the McDonald case by Jack Balkin and other constitutional law professors.  That amicus brief addresses only the issue whether

the Privileges or Immunities Clause of the Fourteenth Amendment was intended to protect substantive, fundamental rights, including the individual right to keep and bear arms at issue in this case.

That’s from the first page of the amicus brief. Remember that the Court had found the individual right to keep and bear arms under the Second Amendment earlier in Heller.  But the amendment only limits the power of the federal government. The question in McDonald was whether the ruling in Heller applied to the States and their political subdivisions via the Fourteenth Amendment.  This was the narrow legal issue the amici law professors argued was settled among legal scholars of the left, right and center.  The brief specifically disclaimed taking any position on the question whether the Court’s reading of the Second Amendment was right, and certainly cannot be read as supporting that interpretation.  Immediately after the passage quoted above, the amicus brief states:

Amici do not, in this brief, take a position on whether the particular regulation challenged in this case is constitutional in light of the individual privilege to bear arms, which, as the Court noted in District of Columbia v. Heller, 128 S. Ct. 2783, 2816 (2008), may be regulated to a certain extent.