A Well Regulated Militia
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 – Second Amendment
I am a retired history teacher. I spent a career talking about the United States Constitution, from its advent to its current interpretation. With all of the controversy about the role of guns in American society, I decided to go back to my “roots” and re-read the decision of the US Supreme Court in 2008, The District of Columbia v Heller.
This was the last case argued over what the twenty-six words in the Second Amendment to the Constitution mean. It also changed over sixty years of Court decisions. It featured the giant of the Federalist Society and the doctrine of Original Interpretation, Justice Antonin Scalia, writing for the majority in a five to four decision. Chief Justice Roberts and Justices Thomas, Alito and Kennedy joined in the majority.
Writing the dissent was Justice John Paul Stevens, joined by Justices Souter, Breyer and Ginsburg. It was near the end of Stevens’ long service on the Court; he retired two years later. The dissent is why I went back to the Heller case, as Stevens, now 98 years old, wrote an editorial in the New York Times last week calling for the repeal of the Second Amendment. This has raised the stakes of the current gun debate, lending some credence to the NRA’s claim that “…they are trying to take away our guns.”
Scalia was the leading Supreme Court product of the Federalist Society, a conservative movement in US law schools started in the early 1980’s. The Society believes that the only correct interpretation of the Constitution is the original intent of the words of the founding fathers. This group has been the source of Conservative Republican appointments, including Roberts, Alito and Gorsuch. Scalia looked not only to the founding fathers (James Madison actually worded the Amendment) but to the English Common Law that predated our statutory law.
Scalia interpreted the Amendment as forming two distinct parts: the establishment of militias by the states, and the individual right to bear weapons for the purpose of hunting and personal self-defense. This was a novel interpretation of the Amendment; in the past the first section, “a well regulated militia,” was seen as modifying the second clause. Scalia and the other Society Justices saw the second clause as free standing.
This overturned the significant precedence of earlier decisions that saw the government as having a clear ability to regulate weapons, based on the first clause, the “well regulated militia.” The outcome of the decision placed limitations on the local and state government’s ability to control weapons, and also put decisions on future actions on a “case by case” basis, without a clear standard that could be applied to every situation. Could, if there was the political will, the national government ban “assault style weapons?” That law, clearly allowed until the Heller case, now would have to be re-argued to the Supreme Court. What the Court’s decision would be is unclear.
Justice Steven’s dissent matched the precedence of earlier Court decisions, but it also went back to the original intent of the Founding Fathers. Stevens explained that the core issue of the Second Amendment was the fear of a national standing army. The American Revolution was fought in part over the constant presence and cost of keeping a British Army in the colonies. The Declaration of Independence spoke of the abuses of those troops, and the Third Amendment spoke directly to the struggles with a standing Army:
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. – Third Amendment
Stevens wrote that the fear of a standing army led to the need for local militias, or civilians who were organized into military units to respond quickly. A limited standing army would be unable to protect against attacks in a far-flung frontier; “…well regulated militias…” were needed. And to be ready to respond, those militiamen needed to be able to “…keep and bear arms…”
Fear of a standing army: a statement that goes directly to the fears of many who demand the right to possess semi-automatic weapons with high velocity rounds in high capacity magazines today. It isn’t about hunting, in fact, James Madison had the right to bear arms for hunting and self protection as one of his choices in writing the amendment. He didn’t include it.
Today it is accepted that the “well regulated militia” is the individual state’s national guard. As far back as 1886 in Presser v Illinois, the Supreme Court ruled that private militias are not “well regulated militias” as defined by the Amendment. The state National Guard serves the purpose of a quick mobilizing local force while not acting as a national standing army. We do have a standing Army (and Air Force, and Marines, and Navy); but they are prevented from acting in the United States by the Posse Comitatus Act. This law, written to put an end to the Union occupation of the South after the Civil War, prevents the military from engaging in policing duties in most cases.
Stevens in his dissent, saw the Scalia decision as opening the door to greater gun availability in the United States. His dissent outlined how the US could gain control of guns, but as a dissent, had no legal authority. So now, ten years later, Stevens sees the only way to overturn Heller is to repeal the amendment itself.
Stevens is retired, replaced by Justice Kagan. Souter retired as well, replaced by Justice Sotomajor. The court still has a five to four conservative majority: the biggest prize of the 2016 election was the appointment of Gorsuch, a conservative, and the potential right to appoint the next justice should a position become available.
What will happen with guns in the United States is about what the Congress and individual state legislatures will do, but it is limited by what the Supreme Court will allow. It all depends on the meaning of those twenty-six words.
