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Thursday, November 11, 2010

Must Second Amendment Originalism Account for the Militia Clauses?

Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation. There's one place, though, where Second Amendment originalism does dovetail with some work I've done, and that's with regard to the "Militia Clauses" of Article I, which empower Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "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." 

To get to the point, here's my basic thought: As I've argued at some length elsewhere, the "militia" for constitutional purposes has basically become a dead-letter, thanks to both Congress and the Supreme Court. Congress has rendered the militia obsolete by (1) authorizing use of the federal regulars in circumstances where the Constitution appears to only contemplate use of the militia; and (2) setting up a "dual enlistment" system with the National Guard pursuant to which guardsmen are always federal regulars (and not militia) for constitutional purposes, even when they're only acting in their non-federal capacity. And the Supreme Court has sanctioned these developments in a series of lesser-known decisions, especially the Selective Draft Law Cases during World War I (which rejected an argument that draftees could only be used in the circumstances specified in the Calling Forth Clause) and Perpich v. Department of Defense in 1990 (which rejected a similar argument with regard to guardsmen).

If all of the above is true, i.e., if history (along with Congress and the courts) has rendered Article I's reliance upon the "militia" obsolete, should that have any bearing on whether we look to the original understanding of the militia in interpreting the Second Amendment? I recognize, as I must, that the ship has basically sailed. But isn't there at least an academic argument that where different provisions of the Constitution refer to the same entity, it makes little sense to apply different methodologies to interpreting those distinct provisions? Or, put another way, if Heller and McDonald are methodologically correct, might the Selective Draft Law Cases and Perpich be wrong?

Posted by Steve Vladeck on November 11, 2010 at 03:07 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I discuss this issue in detail in a article I finished drafting three days before this post, entitled "1792 National Militia Act, the Second Amendment, and Individual Militia Rights." I am not sure if Professor Vladeck was responding to that piece, but I think it answers all the "originalism" questions. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1705564. As far as Professor Rosenthal's argument is concerned, I have written a response to that as well, which will hopefully be up on Northwestern's website in two weeks, entitled "Scribble Scrabble, the Second Amendment, and Historical Guideposts."

Posted by: Patrick J. Charles | Nov 23, 2010 5:35:40 PM

I think any good theory of the Second Amendment has to take into account the militia.

What we have to ask is what was Madison and those who voted for the Second Amendment in Congress and in ratifying the Bill of Rights trying to do with that amendment?

The Bill of Rights as a whole was adopted to alleviate fears over various provisions of the new Constitution. The powers over the state militias granted to Congress were an especial concern. Madison didn't want to diminish those powers, but he wanted to minimize the concerns raised over them. What to do?

Madison's solution is a simple one: protect the individual right to keep and bear arms. By doing that, the states would always have recourse to an armed population from which to draw a militia, even if Congress exercised its authority over the milia and Federalized them.

Posted by: bacchys | Nov 22, 2010 6:32:36 PM

@ ohwilleke:

The militia in the context of modern law enforcement is a very interesting subject. Art. 1, Sec. 8, Cl. 15 & 16 make clear that the military functions '(repel invasion' and 'suppress insurrection') are but two-thirds of the full functions of militia, the remaining one being 'to execute the laws of the Union.'

The modern professional law enforcement regime at both federal and state levels answer every description of the 'select militia' described in Federalist 29. Law enforcement is plainly that latter function of the militia.

The original federal law enforcement officers -- the Marshals, were codified with powers in the Militia Act of 1792, as well as under the Judiciary Act of 1789 -- indicating their dual character. Under the Militia Act, the Marshals received the fines for militia discipline. They are granted, by the Militia Act, the same powers of sheriffs, notably including the posse comitatus -- which is merely the common law delegation function of sovereign power of the "calling forth" of the militia from the body of the people -- 'armed and equippped,' as the cases discussing it have described this power. Marshals are law enforcers, not military commandants, indicating the dual role, and dual structure, for the militia, in its non-military executive function.

Many cases ( e.g. -- U.S. v. Steele)have noted that while the Marshal of the District per se is an "Officer of the United States" -- his deputies are not. By extension, the federal law enforcement officers of rank less than that of District Marshals are not 'Officers of the United States' either, and cases have so held, while simultaneously recognizing the lawful enforcement power of state policemen under temporary appointment to federal agencies as nevertheless having lawful competent federal enforcement authority.

Law enforcement as a Constitutional matter is distinguishable from the purely policy functions of 'Officers' of 'Departments' whose function is merely to "give Opinions in writing" at the request fo the President. Since law enforcement agents have the express function of 'executing the laws of the Union,' a rather significant structural question is presented by the Militia powers. Their authority to execute the law is not in question and is plainly held to be lawful, notwithstanding this lack of competence as 'Officers of the United States.' It begs the question, though.

What are they, if not a federalized 'select militia' ? And if so, then the model for revived federalism is to return to the dictates of Art. 1, Sec. Cl. 16 and restore the appointment of federal law enforcement agents and the ordinary administration of them as select militia to the Governors of the several States for regular enforcement activities. This can be done without having to disturb any existing appropriations for those bodies of select militia -- only their immediate appointment and local oversight is in question -- not the ultimate authority to prescribe their rules or their funding, which remains with Congress. It redistributes the executive authority over ordinary administrative functions of their oversight and prioritization of executory efforts in various localities back to the States -- unless true exigency should require otherwise.

All it would take is a single Executive Order, and an offer to restore these functions to the States' governors.

Posted by: G.R. Mead | Nov 17, 2010 11:16:32 AM

One of the more useful insights in applying the concept of the militia to Second Amendment jurisprudence is the historical fact that the modern police force had not been invented when the Second Amendment was adopted or when the 14th Amendment was adopted.

Functionally, a town watch of locally recruited volunteers organizationally similar to a volunteer fire department today did much of the policinig that was done in the Second Amendment adoption era. Philadelphia in the U.S. organized the first modern U.S. police force in the late 1800s, and the first modern police force in the world was that of the Victorian era Scotland Yard in England, which was a new fangled experiment at the time the 14th Amendment was adopted and not yet conceived when the Second Amendment was ratified.

Local volunteerism as a means of maintaining pre-police force security was not the norm internationally. In places like France, Spain and Italy, local government, including local security, was vested in prefects appointed by the national sovereign, and remained so until quite recently (vestiges of that system remain even today). Some of this flowed from the tradition of giving the internal affairs division of the military authority over the civilian population. The United Kingdom still lacks local democratic control of local police forces, with the Interior Ministry and local appointed boards largely handling that function.

The point of all this is not to say that we are constitutionally bound to return to volunteer town watches and a sheriff raised posse. Instead, it is to view the militia, as including these local government institutions, and expressing a commitment to regulated citizen participation in the enforcement of criminal law, as opposed to seeing the militia in a sovereignty context in which militia's existed to resist tyranny and provide an armed base for insurrection.

Thus, in interpreting the scope of the Second Amendment, judges ought to think about whether regulation unduly interferes with legitimate citizen involvement in enforcement of criminal law, rather than with the role of the militia in fighting civil wars or foreign wars.

Posted by: ohwilleke | Nov 15, 2010 3:01:08 PM

If the second amendment is viewed as a response, in part, to the federal government's Article I authority to wholly divest the states of their armies, then the evisceration of the definition of "militia" should come as no surprise. Perhaps the states anticipated that the federal government would expand the use of its "militia" powers to exert its control over the states. In this context, the use of the term "people" in defining second amendment rights becomes even more important--and prescient.

Posted by: profdreamer | Nov 15, 2010 11:50:33 AM

I read Larry Rosenthal's article that I noted in an earlier comment. It is a concise 14 pages that incorporates much of the literature, including previous articles by Rosenthal, on Second Amendment issues both pre- and post-Heller and McDonald. Included with the download is Rosenthal's 8-page response to Prof. Joyce Malcolm's critique. Put together, many sobering thoughts and concerns are expressed regarding the future of the Second Amendment at both the federal and particularly the state levels with respect to standards of application. Unfortunately Prof. Malcolm's critique was not included with the download; hopefully it is available via SSRN. What is clear is that it will take many cases (at both federal and state levels) and years before the smoke clears from Heller and McDonald, unless SCOTUS comes to its senses. Strict scrutiny should not be the standard of review.

Rosenthal makes mincemeat of Justice Thomas' opinion in McDonald. Which reminded me that I continue to anxiously await Prof. Kurt Lash's Part 3 on the 14th Amendment that is to address that Amendment's "privileges or immunities" clause. We can't rely upon "law office history" that pervades Heller and McDonald.

Posted by: Shag from Brookline | Nov 14, 2010 5:29:48 AM

This government, "UNITED STATES", who has been pushing democracy for the past 100 plus years does not have to abide by any of the constitution that our forefathers founded for us at the cost of their spilt blood so long ago.
They are not the "republic form of government" that belongs to, and is guaranteed by the constitution for the united States of America. Our nation's lawful government has been usurped by this evil one. And just like it's father, Satan, it does it's very best to look and act like the real thing (the de jure). How else can a judge in a court room demand that you be found in contempt of court for simply mentioning the constitution??

There is good news though, if you're interested get back with me at [email protected] and I will see to it that you're filled in on all the "news"

Posted by: Henry | Nov 13, 2010 2:47:58 PM

This has triggered a lot of thoughts and reflections, and I hope that you will expand on it more. As any number of court cases over the years have demonstrated, there is often a point at which the "accepted wisdom" (and a few dozen or even a hundred years of decisions) gets thrown out the window and we go back to the law: the Constitution. As we recoil from the mess bequeathed to us by especially the last three administrations, the time to truly reappraise the role of federal versus state, and of militia versus regular, in defense of the nation may be nearing - or even here.

Howard, you make some excellent points, but you are about 20 years behind the times and the technology. Thanks to a whole host of things, including simulators, virtual reality systems, and changes in equipment and training methods - about 80% of the skills necessary for an 11B, 13B, or 19B (infantry, field artillery, armor) junior enlisted soldier can be learned in a local armory or a consolidated training facility withOUT 100,000 acres of maneuver space, and most of the skills of that soldiers chain of command can be maintained, if not necessarily learned, at that same armory or local CTF. The rest can be taught and skills maintained in annual 2- to 4-week rotations at the big training areas. And those are not just the big RA training installations and garrisons like Riley, Hood, or Carson, but state facilities like Grafton ND or Guernsey WY or Williams UT. The situation is similar for Air National Guard units.

It would take a MASSIVE shift in thought, but it is possible, within the current constitutional framework, to create a New Model Army for the United States in which the State Militias form the bulk of the military force and power, the National Guard continues (at a reduced size) its dual role, and the Regular Army and Air Force are streamlined and freed from today's obligations to become a very small and highly elite quick-reaction force that could be as small as a five- or six-brigade force of combat troops and a virtually soldier-free support network, thus removing Congress' and the President's temptation to use them for occupation duties of two-thirds of the world and nation-building whenever and where ever.

Indeed, if we are to retain any federal government system at all, this sort of shifting of the burden of defense, and giving up the burden of world policeman, is essential for one critical reason: we are out of money and out of time to get the money. It may be that only such a cataclysmic reordering and reorganization of our Union's military forces to allow the federal defense budge to be gutted as much as every other part of the budget provides any hope for paying off the debt AND not being subject to some version of what Russia, Prussia, and Austria did to Poland.

Posted by: Nathan Barton | Nov 13, 2010 10:45:29 AM

While I rarely advise people to not dwell too deeply on a subject,...in this instance, you might well be doing exactly that.

Just because a law has not been observed or enforced for a length of time has no bearing on its validity or soundness,...as I have been informed by different police officers over the years while filling out traffic tickets.

The law is the law is the law. And mere statutes, treaties and acts of Congress are inferior and subservient to it.

Posted by: Chip Saunders | Nov 12, 2010 4:18:53 PM

In its original meaning, the "militia" corresponded to the bunch of guys who lined up on the town green at Lexington. There may have been state militia, but they were not the "National Guard" in modern terms. Current US law defines the unorganized militia as being every able bodied male above the age of 17 and the female members of the organized militia (the Guard). So in some sense, the Article 1 clause enables Congress "To provide for calling forth the [male citizenry] to execute the Laws of the Union, suppress Insurrections and repel Invasions." Although we currently have a standing volunteer army, Congress is authorized in times of need to authorize a draft or even raise the citizenry in mass and organize them into a militia.

Before World War I, the West Point trained standing army was a small force of engineers and artillery officers. The states provided the infantry. As the Civil War showed, state militia could arrive with pretty uniforms but no meaningful training in combat or weapons. The Southern States did better than the North during the initial battles because their residents, before they were called up to military service, were better prepared with the skills of shooting, riding, and scouting than guys who grew up on the streets of New York or Chicago. Before the modern military system, the army did better if recruits came to camp already knowing how to load and shoot a rifle (or ride a cavalry horse for that matter).

It is not the structure of the National Guard that changes things, but rather technology that has rendered this concept obsolete by widening the gap between civilian and military skills. A farmer in 1840 may have already learned at home the important skills he needed to fight in the Mexican War, but today nobody learns at home how to load HEAT rounds into an M1A1 Abrams main gun.

Posted by: Howard GIlbert | Nov 12, 2010 3:47:11 PM

I just downloaded Larry Rosenthal's "Second Amendment Plumbing after McDonald: Exploring the Contradiction in the Second Amendment" available via SSRN:


that may shed some light on the concerns you express.

Posted by: Shag from Brookline | Nov 11, 2010 3:23:45 PM

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