A supposed “gotcha” often heard from anti-gun extremists is the notion that the right to keep and bear arms was contingent on membership in a militia and, there no longer being militias, the right was transferred to their successor, the armed forces. It’s nonsense of course, privileges are contingent, rights are not, and the Supreme Court agrees, if only in the same sense they agree with gravity, less than readily and with a dollop of adolescent petulance from the dissenters.
Supreme Court, 2008- We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank , 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…
US Supreme Court, Heller Decision at scotusblog.com
This decision goes on to say,
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
US Supreme Court, Heller Decision at scotusblog.com
Anti-gun fanatics willingly and knowingly disregard the Constitution by acting on their bizzare and indefensible interpretation of the Second Amendment. The people’s right to keep and bear arms is clearly and definitively upheld in principle by the court in this and other decisions. But it does bring up the fate of “well regulated militia” and, by extension, the security of a free state. The short version is: more than a century ago we had a red blooded All-American and oh-so-legal Night of the Long Knives where the well regulated militia were well regulated into federal service.
Sadly, and perhaps disastrously, the citizens’ militia were absorbed into the standing army, which ironically enough the Constitution defines as a temporary expedient for emergencies, to be funded for a maximum of two years. This makes the argument about the standing army having an exclusive right to bear arms untenable by itself, yet we hear it even now in various forms: “get weapons of war off our streets” for one, and “only the armed forces should have assault weapons” for another.
While it’s true the leaders of state militia were made an offer they couldn’t refuse, or at least didn’t refuse—many Governors valued their own worthless careers above their duties then as now—it’s hardly reasonable to say a specific civil liberty went into captivity along with the militia. No person or organization has possession of the right to keep and bear arms, or any other right, then or now. Nor can anyone legitimately grant or deny it to others. This isn’t a radical notion, in addition to natural law it’s both black letter and settled law.
The original militia concept was uncannily forward looking, almost as if they had anticipated modern Switzerland and 4GW on the same day. Such a citizens’ militia would be a formidable force were they assigned to and trained for their proper duty: home defense in depth. The Second Amendment says a well regulated militia is necessary to the security of a free state. It doesn’t recognize militia as a right but rather a duty. Since nationalization, DC and the states consider unsanctioned—by them—organized militia to be vigilantes, terrorists or extremists, depending on their rhetorical needs at the moment. Self-declared citizens’ militia who defy this notion have the legal standing of armed partisans and are treated as enemy combatants.
Perhaps the idea of bearing arms being conditional on membership in an organized militia is about to make a reappearance. By more or less requisitioning the state militia, a significant military vacancy was created. This hasn’t gone unnoticed by DC. Political theorists note a well regulated militia is also necessary to the security of a police state. While indigenous militia are denied legal standing and hounded out of existence, or at least out of sight, a federalized equivalent is under construction:
We cannot continue to rely only on our military in order to achieve the national security objectives we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.
Pres. Obama, 2008, quoted by Joseph Farah at wnd.com
This “select militia” is to be directed by the DHS. Not coincidentally the DHS is buying arms and ammunition in quantity, and all the while redefining who a reliable citizen is, definitions which exclude much of the armed forces below flag rank, oddly enough. We’re already seeing how that’s playing out . The unorganized militia is being disarmed as if the Second Amendment never existed, which makes no sense if this national security force is to be as powerful and strong as the armed forces. Unless they plan to hire Hessians in large numbers, membership must come from the same unorganized militia they’re disarming.
The otherwise inexplicable disarmament becomes clear if it’s in anticipation of a partisan federal militia with local franchising. Only the unreliable are to remain unarmed. Where our historic militia was a “bring your own bottle” affair, DC’s militia—the civilian national security force—would be provided weapons just as powerful as the infantryman’s, be led by reliable loyalists, manned with diverse volunteers to “look like America”, have police-state latitude, access to the Stasi-like surveillance already in place and air cover on the cheap with armed drones. Achieving “national security objectives” through a series of bloody regional emergencies would prove their value to a grateful nation. That’s the theory anyway.
Finally, for those who still find themselves confronted with the “well regulated militia” argument, here is a non-exhaustive, bare-bones account of the militia laws.
The Constitution of the United States, effective March 4, 1789, Second Amendment
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.
Comment: The right to keep and bear arms is reserved by the people, singly and individually. The court has definitively and specifically decided the “well regulated militia” phrase neither grammatically nor legally creates a condition for the “shall not infringe” phrase.
The Constitution of the United States, effective March 4, 1789, military and militia powers granted the federal government, Article I, Section 8, in part:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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; …
The First Militia Act of 1792
Provided for the authority of the president to call out the militias of the several states.
The Second Militia Act of 1792
Provided for the organization of the state militias, conscripting every “free able-bodied white male citizen” between the ages of 18 and 45 into a local militia. Members were to arm themselves with a musket , bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gunpowder, 20 rifle balls, a shooting pouch, and a knapsack.
The Militia Act of 1903
Repealed the Militia Act of 1792 and established the Reserve Militia, defined as all able-bodied men between 18 and 45, and the Organized Militia—the National Guard, which effectively converted state militias into an asset of the federal government.
Comment, the Guard in World War I – After mobilization, federal draftees and reserve officers were used to bring Guard units to full strength, diluting their character as state units. A major reorganization of American tactical organizations, prompted by the demands of combat in Europe, caused further dilution. Once in federal service, many Guard units were reorganized, disbanded, or converted to a different type of unit. Many Guard commanders were relieved and replaced by Regulars. After the war, the Army discharged all Guardsmen as individuals instead of releasing them from federal service with their units.