March 5, 2012 – Essay #11 – Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment II:

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.

 

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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27 Responses to “March 5, 2012 – Essay #11 – Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Gil says:

    This is awesome. Thank you.

  2. Marie says:

    It completely makes sense why the 2nd Amendment is so harshly under attack. We would be easily controlled with the 2nd Amendment gone. In my opinion, there is a sinister reason behind wanting to disarm Americans. Let’s pray they don’t have a sinister way to cause good Americans to hand over their weapons without a fight. I’m convinced they have a way, and that is why they are so smug. I hope Americans wake up, but I’m afraid it might already be too late…

    • Nowell says:

      I am also afraid it may be too late. Muddle headed American’s sit in front of their large TV’s and soak in everything the biased liberal pro socialist media feeds them.

  3. Jon says:

    The foundation for the second amendment has always fascinated me. I don’t have any expectation that today’s judges have any concern for its foundation so I don’t look to them. For insight I look to time frames where the highest degrees of consensus existed and action took place.

    “Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.”

    Samuel Adams, The Rights of the Colonists, The Report of the Committee of Correspondence to the Boston Town Meeting, Nov. 20, 1772

    As I read Locke, Sidney or Montesquieu I’m persuaded the second amendments foundation is ultimately this first fundamental “Law of Nature”, self preservation. All of the judicial rulings from here to kingdom come make no difference to me on this point. I have a right to defend my life and the State cannot deny me the means to do so.

    • Jon, excellent point. I have often argued that, regardless of the specific textual meaning of the 2nd Amendment, there is a natural right to self-defense. That right has been recognized by innumerable philosophers over the course of Western Civilization. There must be reasonable means to exercise that right which includes, in our society, use of a handgun. As a constitutional matter, if there is an (unenumerated) right under the due process clause to obtain an abortion even up to the point of birth simply for health reasons (including psychological distress), there clearly is a right to protect oneself from an aggressor seeking to kill. Any attempt by the state to make that right ineffectual itself would violate the due process clause.

  4. Rosine Ghawji says:

    Americans never experienced real socialism on their soil. It is a slow process which can start very slowly by taking away rights or which can start very fast after a revolution or a bloody uprising At the end of the day ,the result will be the same.
    People will loose their freedom and will become more dependant from Washington.
    One of the most important goal of socialism is to take away the right to bear arms for regular citizens.People should be following very carefully what is going on in the legislature of the state and in the House and the Senate in Washington. Any effort to pass a law that will modify the second amendment should exposed and defeated right away.

  5. Jet Graphics says:

    The professor made a mistake – ” Militia service in the colonies/states extended to all MEN able to bear arms, subject to some variations as to age and race.”

    That should read “all male CITIZENS”.

    The legal obligation to train, fight and die, on command, would be a violation of one’s right to life, if mandatory on “all men”. Only those who consented to be governed were so obligated.

    Citizenship was and is a voluntary assertion. . . At least it was under the republican form of government. In the People’s Democratic Socialist Republic of America, submission may be presumed.

  6. Randolph Leslie Smith says:

    Unfortunately, our government is so powerful today, we the people would be utterly defenseless against the havoc it could wreak upon us thru many ways bullets can’t stop, such as starvation, water contamination, chemical spills, outbreaks, and so on.
    A militia of today could not stand unless our brothers, sisters, fathers and sons in ALL uniformed services would refuse to comply with the corruption of government that would try to have them use their armed force against we the people; and though other methods of destroying us, from within, are much more effective tools in today’s world, taking guns from individuals is far from being ignored as a high priority option.
    We can all be thankful the Good Lord has the final say in all things, and in all things He is just, and so shall His love, judgment, forgiveness, and wrath be upon us all, respectively.

    • Nowell says:

      Randolph,
      These have been my thoughts also. THANK GOD THAT HE IS IN CONTROL!!! I try to remember to PRAY for our country and encourage others to also PRAY for The Republic of the United States of America. Thank you for your encouraging words.

  7. Ralph T. Howarth, Jr. says:

    The 2nd is the only Amendment in the federal Bill of Rights that actually applied to the state governments.

  8. Linda & Halley says:

    As for me and my house, we will support the second amendment and conceal and carry. Prior to gun rights being abridged, it seems likely the government would require some sort of permitting process. This would, in my mind, lead to the government having knowledge of just WHO the gun owners are and where they live. There are positives and negatives to this amendment, but the right to bear trumps everything. God bless the hunting and rifle associations for their parts in attempting to keep the “sheeple” informed.

  9. Marc W. Stauffer says:

    Excellent essay!
    It is said that our right to bear arms kept Japan from moving beyond Hawaii and attacking the US mainland in WWII, as their generals believed that; “behind every blade of grass would be an armed citizen”. Whether an accurate statement or not, I believe it is that thought that keeps any tyrannical thoughts our government might have in check.

  10. Lance says:

    “As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant.”

    This passage is why Obama, and left-wing nuts alike, oppose the second amendment.

  11. gina doran says:

    Personal liberty stolen by Republican’s and Democrats and I have been calling the house and senate for decades, Its started with the congress writing laws that mandated states to pass laws in order to secure funding help for the programs the federal Government decided must become law thanks to lobbyist . now they are talking about writing a new mandated that all new cars will have to have back up sensor’s installed on them ( republican house ) that infringes on my right to chose what options I want to pay for with my personal property just like the Obama care bill. they took our rights locally away to decide what I kills will learn in our local schools, then they due to the Insurance lobby passed the personal seat belt law, which takes away my liberty My seat belt only effects me and no one else my liberty to chose my path. now they have taken our liberty to chose our own light bulb and once again they have taken my liberty to choose if I want to pay for the morning after pill, or contraceptives on my health insurance policy, They refuse in the white house or the dept of HHS to see that being pregnant or not is not a health issue it is the natural order of life that if you play you pay, in one form or another, If you chose to be active in this area then it is your private and personal responsibility to chose your own path. it is not my responsibility to pay for your Private choices. the supreme court rule that pregnancy is a privacy act, this turns it into a government act, which opens the door to government deciding like another nation when and how many times you can get pregnant
    H>H>S director said in the house hearing that not getting pregnant keeps cost lower and the insurance company’s will pay for these services because it is cheaper to provided for the morning after pill. abortions, and sterilization than it is to have babies,
    We must get this word out watch the hearing on cspan, They are going to engage in population control thru the dept of H.H.S and the ability to decided what treatment is worth the cost, some say they are talking about the more babies the higher the carbon out put.
    Please wake up we can no longer afford to wait we must elect a true constitutionalists one that believes what it says, not one that wants to make it say what it does not. yea social security is not in the constitution , education is not in the constitution , government enforced provided health care at hospitals is not in the constitution. but the right to be responsible for your self is.

  12. Ebben Raves says:

    Aside from the fact that there were set piece battles fought by the militia on the first day of the revolutionary war, April, 19, 1775, which can be expounded upon by others, the author has written an excellent article and truly understands the meaning of the second amendment.

    What I would like to add, though, is look at how far we have fallen compared to these men. U.S. Code Title 10, Section A, Chapter 13, sec 311 states:

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    I will bet most Americans that fall into this category have no that idea they are part of the unorganized militia who’s responsibility was outlined by our founders and presumedly passed on to our generation. How did we let this occur?

    As with other things, people have allowed government to perform tasks that citizens themselves did in the past. For example, the first city police force in this country was established in Philadelphia in 1751 and New York’s didn’t come about until 1845. Prior to this, citizens either took care of defending themselves or hired private individuals to combat criminals. With all government services, the level of customer satisfaction varies, however, changing service providers is much more difficult than in the private sector. When you read the 2005 Supreme Court ruling that police do not have a constitutional duty to protect, you have to wonder why so many are in favor of Americans not being able to protect themselves. Is it ignorance or apathy?

    That brings us around to today. Sadly, many so called second amendment believers have no idea of its real intent. Some who follow strict disciplines such as bench rest shooting, would probably take up RC airplanes without too much fuss if they were adequately compensated for their guns. Others, such as hunters, can easily be whtittled down to single shot rifles as demonstarted by increasingly restrictive gun laws in the more progressive states.

    Continued….

  13. Michael says:

    How did Hamilton die again?

  14. Ebben Raves says:

    Although modern gun owners can in no way match the firepower of the military and would be slaughtered if they tried, it would not be without cost to the oppressing forces. Irregulars have fought foreign armies to a standstill, as evidenced today in Afghanistan and recently in Vietnam. In fact, most success by foreign armies against insurgencies was by a campaign of scorced earth extermination. Look back at the civil war and imagine Sherman’s march happening today. Imagine ‘yard farming’ in your neighborhood. Unfamiliar with the term? Look up “operation garden plot yard farming”. Couple that with the NDAA and the Patriot Act and you could have a difficult time if you are labeled a dissident. One problem these planners have yet to overcome though, is that it would be American forces aginst American citizens on a large scale. Since the armed forces are drawn from all over the country, retribution towards family members would be swift and brutal. Doubtless, many will refuse to fire on fellow citizens and this would throw the convential military into disarray. This is why in other societies that practiced this, the forces used would consist of other ethnic groups and would usually be preceded by disarmament. We’ve heard from this president that “We cannot continue to rely only on our military in order to achieve the national security objectives that 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” If and when this force begets units of racial, ethnic, religious or political homogenity, disarmament is sure to follow. Chilling thoughts, but not out of the realm of the possible, especially with history as a guide.

    So, where does this leave the American who understands the true intent of the second amendment? His is a hard road, left in disrepair for generations. His only hope is for others to join him in reconnecting with their heritage as the true defenders of liberty in this country. He is a sheepdog guarding the flock from an ever-tightening circle of wolves, villified by the media and seen by some as a threat to the state. He is the last bastion of liberty in this country, the final defender from ‘all threats, foreign and domestic’. Won’t you join him?

    Ebben Raves
    Project Appleseed Shoot Boss

  15. Ralph G. Barkley says:

    I would like you all to read a book by William Cooper; BEHOLD THE PALE HORSE. There are several passages that cover the whole gambit of things that will happen when national marshal law is declared. Get the book and read it. You will be very surprised and enlightened.

  16. Ebben Raves says:

    I want to take a minute to clarify my remarks. They are in no way meant to condone, promote or instigate taking up arms against our government or commiting acts of violence. They serve merely to point out the true meaning of the second amendment and to give readers an opportunity to reflect on the impossibility of the imposition of tyranny when citizens understand their heritage and are proficient with legally owned modern rifles. Fortunately for us, our founders paid a price in blood so we have these privledges and also the ability to express ourselves through civic involvement. We owe them a debt of gratitude that we can scarcely repay.

  17. I agree with the sentiments of the post completely. Our constitution is extremely important. In the last 100 years of this country we have allowed the U. S. Constitution to be subverted. Changes have been allowed to be made to the constitution that have severely altered the established “checks and balances” the Founding Fathers had placed in the constitution. These changes have allowed the run-away debt we now find ourselves facing.

    The 2nd amendment is essential to preserving the freemons of the citizenry of the United States. Loss of this freedom may quickly lead catastrophic results. For a more complete explanation of the changes allowed to be made to the constitution check out: http://www.thomasjeffersoncenter.com/1925-supreme-court-changes-to-the-united-states-constitution/

  18. Rochelle Porto says:

    I don’t trust this administration or anyone who is “openly” against the US Constitution. As one mentioned above these progressives have been slowly chipping away at our freedoms and liberties and if history isn’t taught, Americans will roll over and give up their all their rights including the 2nd Amendment. Most of us here are the choir – we know and love and will defend our right to bear arms- but too many under educated in America today aren’t getting it. The 1st Amendment is being watered down by “contraceptives”. Our 2nd Amendment has been under “fire” from the left because they say “guns” kill people and we need “gun control.” Of course we know that it is People who kill People and they use weapons – guns, knives, cars – but to control the citizens of the USA they spew rhetoric about “gun control.” Fellow Patriots, I know your won’t stop fighting to protect our rights and I’m right there with you. Share history with others who weren’t taught and who today are busy with life. How busy will they be when they’re working for the STATE? Our founding fathers were intelligent. It is evidenced by their arguments and ultimately in the final writings of our Constitution. We can’t let the LEFT and socialists/progressives with an agenda tear apart our liberties they way they have since 1885. America is so UNIQUE – our Constitution was so purposefully crafted by Geniuses. I’m praying for all of us to open America’s eyes to the truths right in our faces. The truths that there are people who want to tear down America and replace the Constitution with European style government and God forbid Sharia Law. We are an educating – Militia equipped with truth and knowledge. We reserves the right to have and bear arms and to peaceably assemble and petition the government with grievances. God’s blessings as we share and educate before its too late. Thank you Professor Joerg Knipprath for this enlightening essay filled with great information. Thank you CA for publishing it too.

  19. George Hacker says:

    Excellent essay. The laws of nature include the right to self-preservation. The 2nd Amendment was written to codify that concept in the laws of the United States. In the same way the founders envisioned our country to be self governed, they expected their posterity to take responsibility for providing for themselves and to protect themselves.

    When I attended my first Project Appleseed event (http://www.appleseedusa.org), I heard the stories of April 19, 1775. The colonists had their local governments and courts replaced by those who were devoted to the crown. They were oppressed by an occupying military who raided their gunpowder, leaving them defenseless against indians and unable to use their muskets for hunting. A police state is undesirable because it promotes tyranny, not liberty.

    The 2nd Amendment is what distinguishes the United States from the rest of the world. It demonstrates that our government is really the people and not in the representatives and officers.

    I volunteer as a Project Appleseed instructor because I want to teach others about the sacrifices that were made to secure our freedom. I want to wake up sleeping Americans and help them rediscover the principles of liberty that this country was founded upon. I don’t ever want to hear my grandchildren ask me, “Grandpa, what was it like when America was free?”

    “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin

  20. Freddy says:

    Its time once again to come togeather and FIGHT!!!!!

  21. Brian Buxton says:

    Jamine; keep up the fight! Love the work you are doing!

  22. Brian Buxton says:

    Janine! If I could spell.

  23. Tim Shey says:

    Thank you Professor Knipprath for your excellent essay. I know that the Lord has a plan for the United States. The Lord has used this country to free itself from the abuses of King George III. He has used this country to free other countries from Nazi, Communist and Islamo-Fascist Slavery. We need to put God first, preach and live the Gospel, stay well-informed and . . . praise the Lord and pass the ammunition.

    Here is an excerpt from “A Revolutionary People at War: The Continental Army and American Character” by Charles Royster.

    “Prologue: The Call To War, 1775-1783”:

    Page 5: “Many revolutionaries believed that God had chosen America to preserve and to exemplify self-government for the world. The revolutionary generation had to fulfill God’s purpose against the attacks of men who, they thought, knowingly strove to sap or smash self-government everywhere. History was full of tyrants who ruled because they alone were strong or because the people had decided to share the rulers’ corruption by selling themselves into slavery. Seen in this light, the British attack was no surprise, just as America’s freedom was no accident. Britain sought to subjugate America partly out of envy of America’s strength, prosperity, and liberty. Britain and America were like Cain and Abel, but Americans would defend themselves. Having been chosen by God to show how self-government enabled a people to flourish–and holding this promise in trust for the world–what could Americans expect but assault? In the New Jersey Journal, ‘A Soldier’ said, ‘We ought to rejoice that the ALMIGHTY Governor of the Universe hath given us a station so honourable, and planted us the guardians of liberty, while the greatest part of mankind rise and fall undistinguished as bubbles on the common stream.'”

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