A Well Regulated Militia
December 16, 2012 [and updated to reflect Pub. L. 114–328 (Dec. 23, 2016) renumbering of sections within U.S. Code Title 10] — We often reflect on the meaning of the Second Amendment in the wake of shooting tragedies. Here is the text of the Second Amendment:
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.Clearly, the plain language of the Second Amendment mentions "a well regulated militia." We could read it to mean that only militia members should have a constitutional right to possess firearms. For perspective, we conduct a search for "well regulated militia" on LawFirmSearchEngine.com.
The results include a memo from Connecticut law firm Wiggin & Dana that summarizes the Supreme Court holding in District of Columbia v. Heller, 554 U.S. 570 (2008). Here is an excerpt of the memo:
The majority first dissected the Amendment's grammar, dividing it into two distinct pieces. The prefatory clause ("A well regulated militia, being necessary to the security of a free state . . .") simply stated one purpose of the right and did not contract or expand the scope of the right itself.Essentially, the Supreme Court has held the prefatory clause meaningless with regard to the right to bear arms.
Whether meaningless or not, when we look to federal statutes and regulations for guidance regarding the militia, we do not find very much. There are a couple sections of the U.S. Code that govern the militia, 10 U.S.C. §§ 246 & 247 [formerly §§ 311 & 312, renumbered by renumbered by Pub. L. 114–328]. Generally, the U.S. Code provides that all able-bodied male citizens at least 17 years of age and under 45 years of age and National Guard members are in the militia. This may come as a surprise to men between the ages of 17 and 45!
There is scant federal regulation of the militia. A search for "militia*" in the Code of Federal Regulations yields few results.
The states seems to provide a more developed body of law re militias, e.g., the Military Law of the State of New York. Notably, the U.S. Code provides that the President may call into service the militia of any state to enforce federal law and to put down insurrections. 10 U.S.C. § 252 [formerly § 332, renumbered by Pub. L. 114–328]. Good thing we haven't had to see this in effect! Maybe it is good there is scarce federal regulatory framework for the President to engage the militia!
What the President has done recently in response to the shooting tragedy in Newtown, CT, is said this:
And we're going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics.This likely means an effort to reinstate the Clinton-era assault weapons ban that expired in 2004, namely the Public Safety and Recreational Firearms Use Protection Act, Subtitle A of TITLE XI of Public Law 103-322, or to enact a similar law.
Turning back to Heller, the majority did possibly leave the door open to banning assault weapons as dangerous and unusual weapons. Here is an excerpt beginning at 2816:
Like most rights, the right secured by the Second Amendment is not unlimited.As for militias, the majority in Heller addressed a role for assault weapons for militia members. Here is an excerpt at 2817:
. . .
We also recognize another important limitation on the right to keep and carry arms.
. . .
We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.In contrast to the majority opinion in Heller, the dissenting opinion connected the prefatory clause with the individual right to bear arms. Here is an excerpt of the disenting opinion at 2822:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.We look forward to the day when the dissent in Heller becomes the foundation for a majority opinion holding that the constitutional right to bear arms belongs only to members of a well regulated militia. Until then, much more regulation of dangerous weapons - please.