McFreedom

Randy Barnett, guest-blogging for Glenn Reynolds, has a thought-provoking article on the Second Amendment. He discusses specifically the makeup of The Militia, which is defined in Federal law by US Code Title 10, Sec. 311, "Militia: composition and classes." This law specifies that the militia is "all able-bodied males at least 17 years of age...and under 45 years of age" and goes on to note that, while the National Guard are the "organized militia," the "unorganized militia" "consists of the members of the militia who are not memebers of the National Guard or the Naval Militia." Interestingly, this is not just some remnant left over from 1776; this law was most recently amended in 1993.

So, it would seem that, under Federal law, I am a member of said Militia and that my right to keep and bear arms "may not be infringed." I believe that most gun-control proponents would, at this point, argue that simply because there is a law that states what the Militia is does not make the Militia "well-regulated," and that, hence, my right to keep and bear arms may be infringed.

Such argument misses two important points. First, while there is some argument that "well regulated" did not mean to colonial ears what it does to modern ones, even if we allow it to mean what it seems to, today - that the militia needs to be regulated by a controlling power - I would argue that this clause merely lays a duty upon the Federal government to implement this. Their failure to do so does not eliminate my right. The Third Amendment proclaims, "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." Would anyone argue that, should Congress fail to "prescribe by law" when soldiers may be quartered in private houses in time of war, that would mean that the right was eliminated? Clearly, it would mean that Congress has failed to fufill its constitutional obligation, not that homeowners lose their rights under the Third Amendment. If you believe Congress has failed to regulate the Militia well, the logical outcome is that Congress should be made to regulate the Militia better - not that "the people" be stripped of their constitutional right.

Second, who are you to determine what is "well-regulated," anyway? As I earlier alluded, there is some controversy over its meaning: It either means "functioning" (its aparrent colonial usage), or, it means what modern readers would presume - that Congress has the duty to ensure that the Militia is well-run. If the former, the "there's no Militia argument" doesn't have much meaning. The strongest pro-gun-control argument I could envision from such a reading would imply that, if a bunch of able-bodied males got together and started drilling, they would be able to have guns, but that anyone not doing so and not a male between 17 and 45 would not be able to have guns, as they would not be a member of the functioning militia. Surely encouraging rednecks to get together and practice marching isn't the primary goal of Handgun Control, Inc.

Given a more modern reading, it would presumably be up to the Supreme Court to determine whether Congress' actions regulated the Militia correctly. Such specific oversight is something the Court has been correctly reluctant to do. The argument could be made that US Code Title 10, Section 311 does a perfectly fine job of regulating the Militia, thank you very much, and I hope that the Supreme Court would not wish to meddle in Congressional affairs on this topic. Even should they, the obvious remedy is not to strip the rights from the people granted in the Second Amendment, but to compel Congress to better-regulate the Militia.

What about Congressional ellimination of the Militia simply by making it impossible to be a member? I'd think such a thing would be obviously be unconstitutional, anymore than (say) the Third Amendment could be gotten around merely by Congress passing a law stating that the Army may move into anyone's house in time of war that they wanted to. In both cases the justification is there to give guidance on how to balance competing concerns. That does not mean that one concern may be allowed to completely outweigh the other.

Mr. Barnett goes on to speculate on what the Congress might do to "well-regulate" the militia, which is an interesting thought-excercise in itself. I hope that it will be fascinating to watch the law on this topic in the coming decades. It is my opinion that we aren't fufilling our constitutional obligations: Either the Militia needs to be training more in order to be "functional," or Congress needs to regulate it better. Either way we have work to do to uphold the vision the Founders had of a society in which every citizen is a bulwark against enemies, foreign and domestic.