With the Supreme Court’s landmark 2008 ruling in D.C. vs. Heller, declaring that the Second Amendment protects an individual right to keep and bear arms, we might think that the debate over the Second Amendment has been put to rest. However, we gun owners can’t get complacent. As the saying goes, “the price of liberty is eternal vigilance.” We need to keep educating ourselves and our neighbors about the Second Amendment.
The Second Amendment to the U.S. Constitutions reads simply, “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.” People who dislike civilian gun use often focus on the phrase “a well-regulated militia” as proof that the amendment doesn’t protect civilian ownership.
So, who are the “militia” referred to in the Second Amendment? For the definition of the militia at the time that the Bill of Rights was written we must look at the statements of the Founding Fathers who were alive at the time. Here are a few examples:
George Mason: “[W]ho are the militia? They consist now of the whole people, except a few public officers.” State Gazette of S. Carolina (Sept. 8, 1788): “Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” Samuel Adams: “The militia is composed of free citizens.”
Tench Coxe: “Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
The Founding Fathers drew a distinction between the “general militia” composed of the body of the people and a “select militia” which received special weapons and training from the government (like today’s National Guard). They viewed “select militias” with almost as much suspicion as they did standing armies, as the following quote demonstrates.
Richard Henry Lee: “A militia when properly formed are in fact the people themselves… and include all men capable of bearing arms… To preserve liberty it is essential that the whole body of people always possess arms… The mind that aims at a select militia, must be influenced by a truly anti-republican principle.”
Shortly after the ratification of the Constitution, the U.S. Congress passed The Militia Act of 1792 that declared that all free male citizens between the ages of 18 and 44 were members of the militia. It also stated that “[e]very citizen… [shall] provide himself with a good musket, or flintlock, a sufficient bayonet and belt, two spare flints…[,]” in short, that every male citizen be armed. As with other rights, such as voting and owning property, the right to keep and bear arms was slowly extended to women and minorities through the years.
U.S. Senate Subcommittee on the Constitution (1982): “In the Militia Act of 1792, the second Congress defined ‘militia of the United States’ to include almost every free adult male in the United States. These persons were obligated by law to possess a [military-style] firearm and a minimum supply of ammunition and military equipment… There can be little doubt from this that when the Congress and the people spoke of the ‘militia,’ they had reference to the traditional concept of the entire populace capable of bearing arms, and not any formal group such as what is today called the National Guard.”
It is clear that when the founders referred to “the militia” they meant all law-abiding citizens.