Gun Control and Freedom, page 2

Courts have upheld over much time that citizen militias gain no protection under the constitutional definition of "militia"...it is referring to the national guard, this is how it is done these days.

Here this explains it well:

www.saf.org...

III. AN INTERPRETATION OF THE MILITIA CLAUSES FOR THE TWENTIETH-CENTURY MILITIA

Today's militia system has few common threads with the militia known to the Constitution's drafters. Modern warfare made changes necessary in order for the militia to emerge in the twentieth century as a viable military force. [143] However, most courts and commentators have failed to consider these changes when interpreting the militia clauses. [144] [p.977]

First, this Part examines the Second Amendment in light of the eighteenth-century militia. This Part demonstrates that the meaning of the Second Amendment is clear with respect to that militia system. Next, this Part examines various groups that have some claim to militia status in the twentieth century; the focus of this discussion is to determine whether or not these groups are entitled to any Second Amendment protection. This Part will show that both the organized and unorganized militia, as well as modern police forces, retain elements of the eighteenth-century militia and thus should receive Second Amendment protection to the extent that they have replaced the previous militia system.

A. Application of the Second Amendment to the Eighteenth- Century Militia

Unlike today's National Guard, the eighteenth-century militia generally consisted of all able-bodied adult male citizens. [145] Furthermore, the government not only allowed these citizens to keep their own weapons, but required them to do so. [146] The colonial governments could not have afforded to arm each militiaman even if they had so wished. [147] Therefore, this arrangement was necessary to maintain an effective fighting force. The Militia Act of 1792 [148] is entirely consistent with this view of the militia. This act defines militia as the armed citizenry, indicating that Congress still accepted this definition at the time they passed the Second Amendment. [149]

The wording of the Second Amendment becomes clear once one adopts the eighteenth-century militia definition. Since the drafters wished to avoid a federal standing army, maintenance of the militia was necessary for the country's protection. [150] Thus the Second Amendment begins, "A well regulated Militia, being necessary to the security of a free State. . . ." [151] Since the militia's very existence required individual ownership of arms, the [p.978] federal government could not deny the citizenry that right. [152] This was precisely the concern of the Anti-Federalists, that the Constitution left the federal government with the power to disarm the state militias at will. [153] Therefore, the Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed." [154] Congress did not tie this right of "the people" directly to militia membership because the militia was understood to consist of the general citizenry. [155] The collective-right view of the Second Amendment is thus essentially correct: the exercise of any Second Amendment protection is contingent upon membership in the militia. [156]

Congress's inclusion of the phrase "well regulated" within the Second Amendment has caused many gun-control proponents to conclude that the amendment protects only an organized militia, such as today's National Guard. [157] At least one state supreme court shares this view. [158] However, both historical and linguistic analyses demonstrate that the phrase is consistent with a militia composed of the general citizenry. Historically, the colonies organized their militiamen into units based on their locality; however, they used this organizational scheme for training only, not combat. [159] The colonial militia consisted of a pool of trained men that the government could call upon to fill whatever positions the situation required. [160] Therefore, an interpretation of "well regulated" to mean organized would be inconsistent with the militias existing in the colonies for two centuries. [p.979]

Furthermore, "well regulated" was eighteenth-century military jargon for government-trained, not government-controlled or organized. [161] This usage is entirely consistent with the colonial militias' structure: part of a government's duties was to train its militiamen. [162] Thus, with the adoption of the Second Amendment, Congress sought to protect the state militias as they then existed.

B. Second Amendment Protection for the Modern Militia System

The courts have struggled to analogize the militia system implemented in the eighteenth century to that existing today. [163] Yet the dramatic technological changes over the past two hundred years made the eighteenth- century militia system unfeasible and thus led to its decline. [164] However, the fact that the particular militia system known to the Constitution's drafters no longer exists does not necessarily mean that no Second Amendment claim can be made today. Supreme Court justices have often pointed out that the Constitution is a living document, which is adaptable to changes in the nation's societal and organizational structures. [165] Furthermore, federal courts have routinely adapted constitutional powers to reflect changes in technology that the Constitution's drafters could not have foreseen. [166] Therefore, any [p.980] modern organization which retains elements of the eighteenth- century militia should be entitled to some form of Second Amendment protection. [167] The breadth of Second Amendment protection an organization receives should reflect the degree to which it fulfills the purposes of the eighteenth-century militia. [168]

1. The National Guard

Most commentators have concluded that the organized militias of the states, which together comprise today's National Guard system, are the only groups that fit within the constitutional [p.981] definition of "militia." [169] Regardless, the National Guard has thus far needed no constitutional protection since Congress has explicitly excluded it from all federal firearms restrictions. [170] However, if Congress were to restrict the states' National Guard units from possessing certain weapons, the states would likely succeed in a Second Amendment challenge since the Guard's role in today's society is much like the eighteen-century militia's role in early America.

The National Guard clearly fulfills the first purpose of the eighteenth- century militia, that of protecting the nation against foreign aggression. The Constitution's drafters hoped that the militia would preclude a federal standing army; however, technological changes in the twentieth century made that hope impractical. [171] Yet today the National Guard, as a reserve force for the United States Army, [172] provides the bulk of the nation's military personnel available for service abroad. [173] The National Guard has proved itself necessary and effective as recently as the Persian Gulf War. [174] Therefore, the Second Amendment should protect the National Guard against disarmament as long as it continues to serve effectively in this role.

The National Guard has filled the second role of the eighteenth-century militia, that of providing law enforcement, in a variety of situations. [175] States have often called upon their National [p.982] Guard to provide control during times of crisis or civil unrest. [176] The National Guard has also proven effective in assisting police agencies to retard the flow of illegal narcotics into the United States. [177] Thus, the members of the National Guard have a strong claim to Second Amendment protections based on their law enforcement roles.

2. State Police Agencies

A state's police force is not commonly recognized as a branch of its militia. However, the professional police organizations so familiar in twentieth-century American society did not exist in the eighteenth-century. [178] In their place, the militia served in the role of protecting the public from criminal activity and bringing criminals to justice. [179] Since modern police forces have substantially replaced the law enforcement function of the eighteenth-century militia, the Second Amendment should provide protection against federal firearms regulations to state agencies that perform law enforcement activities. [180] Like the National Guard, police units have thus far been exempted from federal weapons restrictions. [181] However, if federal firearms regulations should become more pervasive, a state police force should be able to invoke Second Amendment protection against a federal regulation that restricts its access to weapons which have utility for law enforcement. [p.983]

3. The Unorganized Militia

The federal government has afforded the unorganized militia no protection from federal firearms regulations. [182] Since the unorganized militia's membership comprises much of the general citizenry, [183] Congress has indirectly applied all federal firearms regulations to this group. [184] While the unorganized militia may be entitled to some Second Amendment protection, the small role that states have given their unorganized militias limits the extent of this right.

The unorganized militia is wholly incapable of protecting the United States from foreign aggression, and thus cannot receive Second Amendment protection for this militia purpose. The unorganized militia has been called upon to fill this role in the past: governors have deployed their unorganized militias as recently as World War II to repel foreign invasion. [185] However, the rapid advance of weapons technology since that time has left untrained, lightly-armed individuals unable to resist any significant foreign threat. [186]

Modern police forces have generally replaced the eighteenth- century militia in the role of law enforcement. [187] However, governors [p.984] have occasionally called out their state's unorganized militia to quell civil unrest. [188] Sheriff's Departments across the country still use the common law posse comitatus concept to augment their law enforcement capabilities. [189] Additionally, individuals still use personally-owned firearms to prevent criminal activity or detain criminals until the arrival of police. [190] Thus, the Second Amendment may extend some protection to the unorganized militia in the role of law enforcement. However, the extent to which professional police provide for law enforcement today severely limits the unorganized militia's role.

4. Private "Citizen" Militias

Members of private militia organizations gain no Second Amendment rights by virtue of such membership. The debates surrounding the ratification of the Constitution make clear that the drafters' definition of "militia" did not include private armies. [191] The Federalists and Anti-Federalists disagreed over how militia control would be divided between the federal and state governments, but no one argued that the militia should be independent of all governmental control. [192] The concerns of the Anti-Federalists pertaining to the militia all involved retaining control over the militia for the state governments. [193] Thus, the inclusion of the Second Amendment in the Bill of Rights rose out of concerns over federalism, not the protection of individual [p.985] rights. [194] The Second Amendment should protect the individual state militiaman in the performance of his duties; however, that protection is ancillary to the protection afforded to the state militias. Thus, once a militia member steps outside of his role as a state actor, his Second Amendment protection ceases to exist. The private "citizen" militias, which generally have no state affiliation, [195] can therefore receive no special Second Amendment protection.

CONCLUSION

The definition of the term "militia" is a critical first step toward determining what protection the Second Amendment provides. This task is more complex because the eighteenth-century militia, which the drafters intended the Second Amendment to protect, no longer exists. In its place, a number of state organizations have evolved which provide comparable services in the twentieth century. Thus, the definition of the militia must involve an analysis of not only what governmental structures exist, but also what roles they play in society.

The individual-right view of the Second Amendment, that the amendment protects the right of everyone to own most any weapon for any purpose, is clearly incongruent with the intent of the Constitution's framers. However, the modern militia is not nearly so limited as recent federal court decisions have indicated. A number of organizations, including the National Guard, various law enforcement agencies, and the state unorganized militias, fulfill the eighteenth-century militia's purposes in today's society. Therefore, the Second Amendment should extend protection to members of all of these organizations while in the performance of their militia duties.

[Edited on 28-2-2004 by Shoktek]