The Janus-Faced Second Amendment: Looking Backward to the Renaissance, Forward to the Enlightenment
Georgetown Journal of Law and Public Policy (Forthcoming)
31 Pages Posted: 7 Sep 2019 Last revised: 11 Nov 2019
Date Written: September 2, 2019
The Second Amendment has two clauses, the first stating the importance of a “well-regulated militia,” and the second guaranteeing the “right of the people to keep and bear arms.” The interplay between these was prominent in the seminal case of District of Columbia v. Heller, 554 U.S. 570 (2008), and will return later this year in New York State Rifle and Pistol Ass’n v. New York, No. 18-280 (cert. granted, Jan. 22, 2019).
The Heller dissent saw the militia clause as explaining the purpose of, and thus imposing a limitation on, the right to arms clause. That is, the right to arms exists only insofar as necessary to service in a well-regulated militia (a term it nowhere defined). The Heller majority saw the militia clause as a preface, explaining why the right to arms merited express constitutionalization.
This article proposes third approach, which is better founded in the historical record. The militia clause and the right to arms clause are completely separate concepts. They have different origins, one looking back to the Renaissance, the other forward to the Enlightenment. In 1787-91 they largely had different constituencies: some Americans were concerned that the new Congress would neglect the militia, others that it might disarm the people. For most of this period, drafters of State declarations of rights, or of proposals for a Federal bill of rights, chose either to praise the militia as an institution, or to guarantee an individual right to arms, but never both.
The exception came in the Virginia ratifying convention of 1788, the eleventh hour of constitutional history, when the convention realized they could do both in one amendment, and joined a militia clause to the right to arms clause.
The practical significance of this is that the militia clause cannot be read to limit the right to arms clause. They were separate ideas from the start and at the end. Moreover, the historical record indicates that the right to arms clause was seen as, by far, the more important of the two.
This article also explores the question of whether the modern National Guard is the well-regulated militia of the Constitution, and concludes that is not. The test of World War II led to a variety of statutory changes, culminating in 1933, that converted the Guard into a reserve Federal force. The Framers envisioned the militia as a State force that would serve as a counterpoise to the plenary Congressional power to raise armies; thus States were expressly guaranteed the right to select militia leaders and the train the force, and Congress was made unable to send it overseas. But Congressional action 1903-1933 used the Army clause to reorganize the Guard so that its officers were Federally approved, its training federalized, and it could be deployed overseas. It remains a reserve military force, but no counterpoise to Congressional exercise of the Army Clause.
Keywords: Second Amendment, militia
JEL Classification: Z18
Suggested Citation: Suggested Citation