This is part 3 of a chain of posts concerning the Supreme Court’s decision in District of Columbia v. Heller. [Part I, Part II, Part III, Part IV]
The text of the Second Amendment‘s prefatory clause is as follows: “A well regulated Militia, being necessary to the security of a free State . . . .” Though the Court’s treatment of the clause was brief, it did reach non-obvious conclusions.
A Well-Regulated Militia
In the first place, the majority read the term “militia”—for purposes of both the Second Amendment and Article I, § 8—as referring to all able-bodied men, as opposed to members of the formal, government-managed bodies identified by modern law as “the organized militia.” 10 U.S.C. § 311. Here, the Court found it significant that Article I, § 8 appeared, on its face, to contemplate the pre-existence of the militia. Congress, after all, had power only to “[t]o provide for calling forth the Militia” and for “organizing, arming, and disciplining” it; there was no enumerated power of creation. And Congress had power “not to organize ‘a’ militia . . . but to organize ‘the’ militia, connoting a body already in existence.”
In support of its broad reading of “militia,” the majority cited United States v. Miller, 307 U.S. 174, 179 (1939), and a handful of founding-era sources. The Miller passage cited by the Court affirmed, with reference to the founding era, that “the Militia comprised all males physically capable of acting in concert for the common defense.” By itself, however, this language was ambiguous: Had the Miller Court adopted a definition of the term “Militia,” or had it merely been describing the militia as then constituted (i.e., as constituted in the founding era)?
The following excerpt sets the passage in its immediate context:
The Constitution, as originally adopted, granted to the Congress power—”To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.” With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
The language cited by the majority in Heller was preceded, then, by a sentence in which the Miller Court had purported to find the “signification attributed to the term Militia” in “the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.” Id. at 179. That certainly provides support for a definitional reading. But the opinion went on to endorse, in the very next sentence, this more restrictive definition: “A body of citizens enrolled for military discipline.”* Id. That suggests the Miller Court’s statement may well have been merely descriptive, after all.
Ultimately, the founding-era sources cited by the Court were arguably more significant than what the ambiguous Miller opinion may or may not have said. But these, too, were less helpful than the Court let on.
First up was Noah Webster’s celebrated American Dictionary of the English Language (1828), which defined “militia” as follows:
The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.
The first sentence, in supposing that a person must be “enrolled for discipline” to qualify, actually clashed with the Court’s reading. Perhaps for that reason, the Court relied only on the second. But even the second sentence supported the majority’s position only if everything after “able bodied men” was merely descriptive, while those words themselves were definitional. That seems unlikely.
The Court also cited Federalist No. 46, in which “Publius” had spoken of “a militia amounting to near half a million of citizens with arms in their hands.” It seems clear that founding-era militia service was a duty imposed upon (roughly) all able-bodied men; and so it is no surprise that Madison’s figure would approximate their number. A description, however, is not a definition. Under our Constitution, the presidential qualifications are “natural born” citizenship (subject to an obsolete qualification), being 35 years of age, and 14-year residency in the United States. U.S. Const., Art. II, § 1. But this tells us nothing about the definition of “presidential qualifications.” The same logic applies to the militia.
The Court’s final citation was to a letter penned by Thomas Jefferson in 1811, the relevant passage of which is as follows:
You apprehend that a single executive, with eminence of talent, and destitution of principle, equal to the object, might, by usurpation, render his powers hereditary. . . . I do not believe . . . that this danger is lessened in the hands of a plural executive. . . . [T]he true barriers of our liberty in this country are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed. Seventeen distinct States, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration, regularly organized with legislature and governor resting on the choice of the people, and enlightened by a free press, can never be so fascinated by the arts of one man, as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess. While that may paralyze the single State in which it happens to be encamped, sixteen other, spread over a country of two thousand miles diameter, rise up on every side, ready organized for deliberation by a constitutional legislature, and for action by their governor, constitutionally, the commander of the militia of the State, that is to say, of every man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry and artillery, trained under officers general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience.
Letter to Destutt de Tracy (Jan. 26, 1811), printed in The Writings of Thomas Jefferson, Vol. 9, pp. 308–309 (P. Ford, ed. 1898) (emphasis added). This example is somewhat better, but in the end, still inadequate. It’s true that not literally “every man . . . able to bear arms” would have been enrolled as a member of the militia (narrowly defined). But given that Jefferson’s letter refers to the governor as the commander of this militia (“that is to say, of every man in it able to bear arms”), it seems likely that he was simply speaking loosely.
There was greater trouble beneath the surface. As recounted above, the Court insisted that the militia had been a pre-existing body, whose existence was not dependent on federal law. In the course of this argument, it described a 1792 militia statute, 1 Stat. 271 (Act of May 8, 1792), as a mere exercise of Congress’s “plenary power to organize the units that will make up an effective fighting force.” While the statute obviously excluded some number of able-bodied men, “the federally organized militia” (reasoned the Court) could consist of “a subset of them.”
Note, however, that the Act had provided that this “subset of them” “severally and respectively be enrolled in the militia.” What did “the militia” mean here, if not what the Court called “the organized militia”? And there is more; the Act bore the title, “An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States” (emphasis added). If the “militia” necessarily referred to all able-bodied men, Congress would scarcely have been able to “establish[] . . . a[] Uniform Militia.” At the very least, then, the term was susceptible to a narrower definition. And as we have seen, none of the sources cited by the Court clearly embraced its able-bodied men definition.
The House debate on the Militia Bill, as recorded in the (admittedly imperfect) Annals of Congress, casts further doubt on the Court’s populist definition of “militia.” After the first section of the bill was read,
Mr. Struges [a Connecticut representative] said, that he conceived some amendment was necessary to this section. It appears to consider the militia of the several States, as the militia of the Union; whereas the Constitution considers it as belonging to the respective States; that the States alone are to say of what description of persons the militia shall consist, and who shall be exempt from militia duty; Congress have only power to organize them, when thus designated. He therefore moved that the section should be amended, by striking out the clause, which he considered as involving the principle he was opposed to.
3 Annals at 418–419. Struges, then, seems to have shared the Heller Court’s narrow understanding of the term “organiz[e].” He reached, however, a very different conclusion: to him, this established that the militia’s composition was a matter of state law. Representative Livermore of New Hampshire concurred, evidently endorsing the argument from pre-existence: “It is the militia of the several States that Congress have power to organize and provide a mode of discipline for. It is not a militia to be formed, or created—it already exists.” 3 Annals at 419. (The Annals do not make clear whether the congressman was relying on the a-vs.-the argument.)
Not everyone was impressed with these arguments, and Struges’s motion failed. 3 Annals at 420. Yet no one appears to have embraced the view that the militia was, at least for constitutional purposes, simply all able-bodied men. No one claimed that Congress, in providing for enrollment of men in the “organized militia” was merely designating what portion of the militia at large would be federally organized.
Other defenses of congressional power were made. Connecticut Representative Hillhouse retorted that Congress’s power to “organiz[e]” the militia would be useless under such a stingy reading. He insisted that Congress was “empowered to organize the militia, to say what descriptions, ages, &c., the militia shall consist of; to form them into companies, corps, and regiments, &c.” 3 Annals at 419. Representative Wadsworth (CT) objected that “[t]he people in several States already avow the sentiment, that they think that Congress alone has the power to form the militia.” Id. at 420. And Representative Murray (MD) argued that “[t]he militia, contemplated in the Constitution, certainly does not mean an existing militia; for many of the States have no militia nor militia laws; and therefore the clause must respect a militia to be formed or created.” Id.
Those arguments were made. But no one seems to have made the very different argument that the Supreme Court was to embrace roughly 220 years later. This silence is striking, for this was, after all, merely the Second Federal Congress. If the Heller Court was correct about the original understanding, it seems that understanding was lost rather quickly.
(To be clear, I don’t claim to know for certain that the Court was wrong. Perhaps there is evidence, not cited by the Court, that I’ve overlooked. At the very least, however, there’s reason for skepticism.)
A Well-Regulated Militia
Much more straightforward was the Court’s (correct) conclusion that the adjective “well-regulated,” as used in the Second Amendment, meant “nothing more than the imposition of proper discipline and training.” This traditional usage is clearly illustrated in a passage from Federalist No. 29:
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States.
Similarly, William Rawle’s celebrated work, A View of the Constitution of the United States of America (2d ed. 1829), contrasts a “well regulated” militia with a “disorderly” one, and speaks of “such regulations as will tend to make good soldiers.” Id., p. 125. And Joseph Story, in his Commentaries on the Constitution of the United States (1833), laments that “though . . . the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations.” Id., Vol. 3, pp. 746–747.
Necessary to the Security of a Free State
Lastly, the Court concluded that the term “free state” referred, in the Second Amendment, to a “free polity” or “free country.” It did not refer specifically to a member of the union. Intuitively, that strikes me as correct, and the Court marshaled some historical evidence for it. For a lengthier commentary reaching the same conclusion, see Eugene Volokh, Necessary to the Security of a Free State, 83 Notre Dame L. Rev. 1 (2007).
For the next post in this chain, click here.
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[*] — Here, the Miller Court was presumably quoting from Jeffers v. Fair, 33 Ga. 347, 349 (1862). Though the Court gave no direct citation for the quoted definition, it did cite Jeffers v. Fair in a footnote identifying “some of the more important opinions and comments by writers.” Miller, 307 U.S. at 182, n3. Note that in Jeffers, the Georgia Supreme Court was wrestling with the meaning of the Confederate States Constitution.