Brannon P. Denning[*]
Glenn Harlan Reynolds[**]


A. A Brief History of the Militia in the United States
Though largely forgotten, militias were once an important institution in America.[74] The Constitution, for example, mentions militias in several places,[75] most notably in the Bill of Rights.[76] James Madison considered the (p.196)militia to be one of the bulwarks of American liberty.[77] Madison’s sentiment was echoed by the famous nineteenth century constitutional commentators Joseph Story[78] and Thomas Cooley.[79] But what was the “militia” of which the Framers wrote? In a nutshell, the Framers’ militias were “comprised [of] all males physically capable of acting in concert for the common defense,”[80] or, in other words, they were “citizens primarily, soldiers on occasion.”[81]

Militias were part of an inherited, English, radical Whig ideology vigorously opposed to “standing armies”–those armies comprised of professional soldiers–as being inimical to the liberties of the people.[82] The historian (p.197)J.G.A. Pocock described the tradition as a civic and patriot ideal in which the personality was founded in property, perfected in citizenship but perpetually threatened by corruption; government figuring paradoxically as the principal source of corruption and operating through such means as patronage, faction, standing armies (opposed to the ideal of the militia), established churches (opposed to the Puritan and deist modes of American religion) and the promotion of a monied interest …. Not all Americans were schooled in this tradition, but there was (it would almost appear) no alternative tradition in which to be schooled.[83]

Not surprisingly, this Whig tradition, also called republicanism or civic republicanism,[84] is an intellectual antecedent of Communitarianism.[85] Independent militias were sometimes organized prior to the Revolution, in part as a counterweight to the Tory-controlled regular militias,[86] and worked closely with the military force of the Continental Army.[87] During the Revolutionary War, these colonial militias performed admirably,[88] particularly when operating close to their home towns and villages, although they often were disparaged by professional military officers as ill-disciplined and unsuited for extended campaigning. This clearly illustrates that militias were primarily intended to be defensive; indeed, those who refused to leave their homes and towns still played an important role in preventing any counterrevolutionary activity from establishing a foothold. Nevertheless, as Professor Robert Cottrol has written, it is important to keep in mind “that the armed population and the militia were intended to serve more than a simple military function. They were seen as fulfilling political and perhaps moral purposes as well.”[89] This latter point seems lost on most modern critiques (p.198)of the militia as an institution, which seem solely concerned with the militia’s military capabilities, or lack thereof.[90]

As previously mentioned,[91] the militia was featured prominently in the text of the Constitution, and heated debates occurred regarding the extent of federal government control over the state militias.[92] In the end, there was a compromise:[93] the federal government retained the power to call up the militia and to prescribe its training;[94] the states retained the power over the militia members’ actual training and could prescribe the method by which officers were chosen.[95]

Initially, Congress took seriously its responsibility toward the militia,[96] passing an act in 1792 that detailed uniform standards for the militia of all (p.199)states, down to the number of rounds of ammunition a militiaman was expected to have on hand.[97] As Hamilton foresaw,[98] by the mid-nineteenth century, the militia had declined.[99] The federal government came to rely more on a professional military, and the states simply were unwilling to shoulder the financial burden of maintaining militias.[100] Nevertheless, the militia was still seen as a valuable community institution.[101] The decline, no doubt, accelerated as the United States began to aspire to empire in the late nineteenth century. National authorities, frustrated by their inability to send state militias outside the country’s boundaries, sought a new organization–one that could remain under the nominal control of the states until such time as it was called into service of the United States.[102] In 1909, the National Guard was born.(p.200)

B. The National Guard and the Death of the Universal Militia
The Dick Act,[103] passed in 1903, “signified the … [end] of the old, … state-controlled, system”[104] by introducing significant federal requirements for the training and equipping of state militias. The National Defense Act of 1908[105] followed the Dick Act and authorized the use of the newly constituted “National Guard” to serve outside the boundaries of the United States.[106] Congress passed another national defense act[107] in 1916 as part of general preparedness in the face of an escalating European war. Among the increased requirements placed upon the states (and upon the United States Army, the administrator of the requirements) was an innovative solution to the constitutional prohibition against the foreign use of militia troops: the President was authorized to draft state Guard members into national service as federal reserve troops.[108] Furthermore, the National Defense Act of 1916, which acted as a condition precedent to the states’ receipt of federal funds, forced the states to cede most of whatever control they retained over the militia, including the constitutional prerogative to appoint officers to command the militia.[109] As one commentator has noted, “A recurring fact (p.201)pattern emerges: the states, faced with ever more demanding standards but unable to pay for upgrading, are forced to accept both federal funding and the resulting loss of control that goes along with that funding.”[110]

This pattern continued into the 1930s with the establishment of a “dual enlistment policy,” whereby each member of a state National Guard unit simultaneously became a member of the United States National Guard.[111] Though militia members retained their status as members of the state National Guard, Congress could order them into actual service for the United States[112] whenever it declared a national emergency. During such service, members lost their status as members of the state National Guard.[113]

In 1952, Congress removed the national emergency requirement as a prerequisite for federal control of state militias and, instead, authorized federal control for “training” purposes regardless of the existence of national emergency.[114] This power was subject to gubernatorial approval, a requirement removed in the mid-1980s by a Congressional amendment precipitated by some governors’ refusal to send forces to train in Central America.[115] Thus, in less than a century, state militia systems were dismantled piecemeal; what remains today is, at best, a “select militia” which, because it lacks universal membership, would be viewed by the Framers as little better than a standing army.[116] More ominously, the destruction of state militias removed an important civilian check upon federal military power:

By providing for a militia in the Constitution, the Framers sought to strengthen civilian control of the military. They postulated that a militia composed of citizen- soldiers would curb any unseemly ambitions of the small standing army. Today’s National Guard is often perceived as the successor (p.202)to the militia, and observers still tout the Guard’s role as the ultimate restraint on the professional military.

The reality, however, is much different. Today’s National Guard is a very different force from the colonial-era militia. With 178,000 full-time federal employees and almost all of its budget drawn from the federal government, the National Guard is, for all practical purposes, a federal force.[117]

C. Mandatory Militias?
Despite some interest in militias in the early twentieth century[118] and more recently in a few communities around the country,[119] the federal government, and the populace in general, seems uninterested in reestablishing a universal militia.[120] Nevertheless, a Communitarian approach to the Second Amendment that focuses on the Constitution’s militia clauses makes a case that Congress is obligated to provide the states with the ability to maintain a militia that the Framers would recognize, rather than merely providing for the operation of the National Guard. If one accepts the Communitarian platform’s community-oriented approach,[121] it can be argued plausibly that the Second Amendment actually requires the maintenance of a universal militia. After all, the opening clause of the Second Amendment begins, “A well regulated Militia, being necessary to the security of a free State ….”[122] Thus the Framers considered a well-regulated militia to be, well, necessary to the security of a free (p.203)state. [123] Add to this straightforward textual language what we know about the historical background, particularly the Framers’ Whiggish hostility toward standing armies,[124] and the idea that the federal government, and perhaps the states as well, possess an absolute obligation to maintain a universal militia seems reasonably well-founded. This intent is evident in light of the 1792 Militia Act,[125] which is entirely consistent with this understanding.

Of course, such a duty could be meaningless in practice. Similar obligations of the federal government, after all, have largely been interpreted out of existence. The Guaranty Clause of Article IV, Section 4,[126] for example, was the subject of judicial near-abnegation,[127] with its goal being achieved, if at all, by such other provisions as the Due Process Clause and the Equal Protection Clause. In general, courts are far more willing to entertain claims based on individual rights than on government obligation.[128]

In this light, the Second Amendment could be understood as an example of very careful drafting indeed: a government obligation (to maintain a militia) coupled with an individual right (to keep and bear arms) that ensures that the key element of a universal militia (an armed citizenry) cannot be extinguished by government neglect.[129] At the very least, the clear constitutional statement regarding the necessity of a well-regulated (universal) militia for the security of a free state should give us pause. The logical consequence of this statement is that a state lacking such a militia is either insecure or unfree.[130] In light of what is known about the purposes of the (p.204)Second Amendment and the Framers’ views regarding standing armies and armed citizens, an interpretation of the first clause of the Second Amendment as requiring universal militias seems well-founded. It is certainly better grounded in the Constitution’s text, history, and purposes than many other constitutional arguments that have attained general acceptance.[131]

Nor is that the only consequence. Accepting, arguendo, that a court lacks the power to order the creation of a universal militia, the absence of such a militia could still have legal (and political) consequences. One can imagine the following exchange between a government representative and a member of one of today’s neomilitias:
GOVERNMENT: You have no right to operate a private militia. The only militia recognized under the Second Amendment is a state-sponsored militia. Private groups have no standing.[132]
MILITIAMAN: A state-sponsored militia, eh? Which one is that?
GOVERNMENT: The National Guard, of course.[133]
MILITIAMAN: Don’t be silly. The National Guard is not universal, and it isn’t state-controlled. At best, it’s a select militia of the sort that the Framers disliked.[134](p.205)
GOVERNMENT: Oh, all right. The truth is, we allowed the real militia to die. It wasn’t good for much. We couldn’t even use it to invade Mexico or Canada. Furthermore, the professional military didn’t like it.[135]
MILITIAMAN: Fine. Because you admit you’ve defaulted on a constitutional obligation that is “necessary to the security of a free state,” we’ve resorted to self-help. We’d rather see a universal militia of the sort the Framers envisioned, but only the government can create that. We’ve done the best we could in light of your default. And you should be stopped from complaining, until you have lived up to your constitutional obligation.[136]
GOVERNMENT: But private militias are dangerous. They don’t necessarily represent the whole community; only portions of the community join such groups. They are prone to being infiltrated by malcontents, and they scare people.[137]
MILITIAMAN: All true. That’s why we should have a universal militia. Too bad you guys have fallen down on the job.

Despite its half-whimsical treatment here, the argument is a serious one. (p.206)If a well-regulated militia of the sort the Framers envisioned is as important as a Communitarian interpretation of the Second Amendment suggests, then there is a constitutional argument for self-help in the event of a government default. Such an argument would likely fail in court, but that does not necessarily diminish its political, or even its constitutional, force. The easy solution is to take seriously the Second Amendment’s first clause. Doing so, however, is likely to pose problems for the Communitarians’ stated goal of domestic disarmament.

D. The Communitarian Militia
Critics will no doubt label militias as quaint anachronisms, unsuited for either modern military service[138] or local law enforcement,[139] activities viewed as best left to “professionals,” though the recent record of some law enforcement professionals should give one pause.[140] Despite what critics say, states continue to take their militias semi- eriously: almost every state in the nation has a statute that designates the citizenry of a specified age as the “unorganized militia” of the state.[141] Many states even have updated their unorganized militia statutes in recent years to include women.[142] Although geopolitical realities probably preclude reliance on the militia as the keystone of our military strategy, this is not a flaw of militias; rather, it speaks to the role the United States has assumed in world affairs, a role the Framers had not likely intended. Using a militia to service the security needs of states and communities, on the other hand, makes good sense [143] (p.207)and can be done in a way that constitutes a perfect fit with Communitarian principles.

In the eighteenth century, universality was viewed as the great virtue of militias.[144] The militia was seen as incorruptible and thus incapable of tyranny because the diversity of membership was thought to be a powerful guard against any one element in a community gaining sway over the whole.[145] Militia service brought together community members from varied backgrounds.[146] (Communitarian reticence about acknowledging the virtues of militias is especially puzzling given the strong, community-centered and self-reliant elements in the Communitarian platform.[147] ) Further, if cultivated, the militia could reinforce the idea of duty to the polity in the deepest sense by obligating members to take up arms for the community’s defense and by accepting responsibility for the safety of residents and visitors.[148] A (p.208)reconstituted militia serving individual communities under the aegis of the state also would accomplish the Communitarian goal of resolving problems by use of the smallest possible societal unit.[149]

More importantly, the existence of a citizen militia responsible in some way for the security of a given community also might reintroduce responsibility into the administration of law enforcement. Although law enforcement officials formerly were liable, for example, in trespass for improperly serving a search warrant or for breaking into the wrong house to make an arrest, legal fictions such as sovereign immunity and qualified immunity now present almost insuperable barriers for citizens wishing to hold law enforcement officers accountable for mistakes or abuses.[150] Further, the recent phenomenon of the “militarization” of law enforcement at all levels of government evokes sinister analogies to authoritarian regimes and the much feared “midnight knock at the door.”[151] Professional law enforcement officers clad in Nomex coveralls and face shields, after all, hardly seem to represent the community even in their own minds, much less in the minds of many onlookers. Encouraging communities to take responsibility for their security might also have the effect of making those charged with law enforcement duties morally responsible to their friends and neighbors, and thus help them exercise greater care and restraint in carrying out their law enforcement duties. Though many might raise the specter of vigilantism and argue for respecting the domain of law enforcement professionals,[152] the recent behavior of some law enforcement agencies implies that a “professional” record is not always something to which communities should aspire.[153] Likewise, charging members of a community with its security will sensitize them to the link between rights and responsibilities. Moreover, requiring that community members police the “rights-responsibilities” boundary will highlight the social cost that accompanies the exercise of rights in a diverse and plural community.[154](p.209)

A universal militia also would take advantage of some important characteristics of human psychology.[155] At the risk of sounding too flip, if militias are outlawed, only outlaws will join militias. Conversely, the establishment of a government-sponsored universal militia would produce a very different dynamic. Rather than a way to rebel against the status quo, militia service would be a means of community service, similar to jury duty. As with jury duty, those lacking community spirit would probably devote their energies to finding ways of avoiding service. A universal militia of a very different character than the private groups extant today possess–a character far closer to what the Framers envisioned would result. Similarly, mandatory training in the use of arms in connection with militia service similarly would further important Communitarian goals. It could teach forbearance, illustrating that the right to keep and bear arms does not give one the right to be a “gunslinger.” At the same time, arms education also would address one of the “clear and present dangers” to the public health cited in the Communitarian platform: deaths caused by accidental gunshot wounds.[156] A return to the Framers’ universal militia, then, would obviate the need for “domestic disarmament” by eliminating the platform’s reason for it. In addition, it would provide a meaningful Communitarian interpretation of the Second Amendment, just as the Communitarian platform commands.[157]

One thing should be obvious from this discussion: in principle, it is possible to have “community militias” composed of all law-abiding citizens or to have domestic disarmament, but not both, as the Communitarian platform demands. If all law-abiding citizens belong to the universal militia, then they will be armed; that is what belonging to a militia means, as the Supreme Court made clear in United States v. Miller.[158] The platform does not address this contradiction, and the other Communitarian discussion of guns is so unrelentingly hostile to gun ownership by individuals that it is difficult to believe Communitarians take seriously their own beliefs in this context. As the following discussion demonstrates, that is unfortunate.

To be continued…

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