The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights: A Legal and Historical Perspective
70 Pages Posted: 10 Nov 2010 Last revised: 12 Oct 2011
Date Written: June 30, 2011
In Ezell v. City of Chicago an interesting lawsuit was filed by the Second Amendment Foundation, asserting that Chicago Municipal Code § 8-28-280 violates their right to "meet for voluntary discipline in arms." The legal challenge began when the City of Chicago amended its gun laws to comply with the Supreme Court’s rulings in McDonald v. Chicago and District of Columbia v. Heller. In particular, Chicago amended its laws by placing a prohibition on shooting galleries and target ranges within the city limits, thus making it unlawful to discharge firearms unless it is for self-defense or in defense of another person. In challenging the constitutionality of these laws, the Second Amendment Foundation argues individuals have a right to train by discharging their personal firearms, albeit within city limits, as a means to exercise their constitutional right to armed individual self-defense of the home.
Certainly, the challenge itself is interesting to those who are closely monitoring the development of Second Amendment jurisprudence. Perhaps what is most interesting is the manner in which the Second Amendment Foundation is arguing it. Not only are they asserting that Chicago's gun laws violate our First Amendment right to associate by discharging firearms, but it is also asserted that Chicago's gun laws impede the people from comprising the Constitution's "well-regulated militia."
The First Amendment argument is interesting in what it omits. This being that the First Amendment has never been historically associated with the discharging of firearms for personal self-defense. In fact, there exist numerous historical examples of limiting the discharging of firearms within populated areas. Thus it is unlikely that the First Amendment argument would pass Heller's traditional regulatory prohibitions.
This leaves us with the Foundation’s second argument; that Chicago's guns laws impede on what they define as the "core" of the Second Amendment, i.e. the people need to be able to effectuate the Constitution's "well-regulated militia" by individually learning to use firearms. In crafting this argument, the Foundation cites to the 1792 National Militia Act, the modern day Civilian Marksmanship Program, and a few appellate court decisions that loosely interpret what comprised the Founders' militia or "well-regulated militia."
This is perhaps the strength of the Second Amendment Foundation's argument. The Foundation understands that in order for Second Amendment rights to advance as they advocate, it will require a loose interpretation of what comprises the United States militia and the means or bounds by which this militia may train. In other words, the baseline argument is that "the people," as a "militia," have the right to associate and train to effectuate the Second Amendment’s original purpose - the national defense and to provide a constitutional counterpoise standing armies. On its face, this argument seems to be a credible. Generally, eighteenth century militias were comprised of all male freeholders capable of bearing arms from the ages of sixteen to sixty years. This constituted a large segment of the male population. Thus, under this basic historical construction, one would argue the Founders viewed the militia as comprising the majority, if not all of the people; an argument that has been consistently asserted by pro-gun advocates, lobbyists, and Individual Right Scholars. Unfortunately, this argument is fatal if a court were to fully investigate what constituted the Second Amendment’s "well-regulated militia" as the Founders understood it. The right to "keep and bear arms" in a "well-regulated militia" was not a license to individually train or discharge firearms. What constituted a "well-regulated militia" was a carefully planned constitutional military force controlled by the State and federal governments. This fact was frequently conveyed in militia law preambles. Even the infamous Massachusetts militia that assembled at Lexington & Concord was a well-regulated and disciplined force that had been performing military exercises for a year. Not to mention, there is a long chain of historical evidence that counters the assertion that the individual exercise of arms is what accomplishes the Second Amendment’s purpose. It is well-documented that the Founding Fathers did not equate a random assemblage of armed people as comprising a "well-regulated militia," and instead viewed this assemblage as a dangerous mob. Despite these proven historical and legal facts, pro-gun advocates, lobbyists, and scholars are not deterred from asserting otherwise. Their interpretation of history is one of voluntary militia associations where arms are the centerpiece of the militia right to keep and bear arms. It is asserted that militia "arms bearing" is not dependent or contingent upon military training and discipline, and instead is an independent function of what constitutes the Constitution’s "well-regulated militia" - organized and unorganized. In fact, this argument has already been successfully litigated using the 1792 National Militia Act as proof. In Parker v. District of Columbia, it was argued that the Act’s structure conveys that the Founders distinguished between an organized and unorganized militia, and that militia enrollment was constitutionally distinct from armament. This argument is an erroneous interpretation of eighteenth century militia law, but the Parker court agreed and regurgitated the argument as follows: [I]n the 1792 enactment, Congress defined the militia broadly…[It] provides a detailed list of directions to both individuals and states that we take as an indication of what the drafters of the Second Amendment contemplated as a "well regulated Militia." It will be recalled, the second Militia Act requires that eligible citizens enroll in the militia and, within six months, arm themselves accordingly. Subsequent to enrollment, arming oneself became the first duty of all militiamen. The Act goes on to require of the states that the militiamen be notified of their enrollment; that within one year, the states pass laws to arrange the militia into divisions, brigades, regiments, battalions, and companies, as well as appoint various militia officers; that there be an Adjutant General appointed in each state to distribute all orders for the Commander in Chief of the State to the several corps, and so on. The statute thus makes clear that these requirements were independent of each other, i.e., militiamen were obligated to arm themselves regardless of the organization provided by the states, and the states were obligated to organize the militia, regardless of whether individuals had armed themselves in accordance with the statute. We take these dual requirements - that citizens were properly supplied with arms and subject to organization by the states (as distinct from actually organized) - to be a clear indication of what the authors of the Second Amendment contemplated as a "well regulated Militia."
Few will disagree with the Parker court that the 1792 National Militia Act provides great insight into understanding the Second Amendment’s protective scope. The proximity of its adoption with that of the Bill of Rights (the Act was debated from December 1790 through March 1792) gives historians a better understanding of how the Founders sought to incorporate the States' preexisting militias within the constraints of the Constitution. Where the Parker court erred in its analysis, however, is that it completely misstated eighteenth century militia law, failed to carefully read the entire text of the National Militia Act or in context, did not properly examine the State-federal spheres over the militia, and did not at all touch upon the contemporaneous legislative history.
Naturally, all these errors are intimately related and intertwined, for the Act's text incorporated commonplace eighteenth century militia law and practice, all the while preserving the State and federal balance as to the arming, organization, and disciplining of the national militia. Indeed, the Parker court is correct that the text of the 1792 National Militia Act, in itself, does provide legal, historical, and philosophical insight into what constitutes the Founders' understanding of a "well-regulated militia." To effectively accomplish this, though, the text and history must be placed in its proper context.
Keywords: second amendment, militia, national militia act, bear arms, well-regulated militia, ezell, mcdonald v. city of chicago, district of columbia v. heller, militia rights
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