[Webstral]

“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.”


I’ve been doing research on the Second Amendment over the past few years. My ideas on the subject have changed somewhat since I started. I’m fairly certain Raellus’ recollection is directed at something I wrote. I don’t remember writing it, but the idea of universal service in the militia for all gun owners sounds like what I used to advocate.


The questions posed here are good ones and deserve thoughtful reply. I will try to reply thoughtfully to the best of my ability without regurgitating the 80,000 words of notes I have taken over the past few years.


I think the place to start is to outline the thought process. The Second Amendment was written in the second half of the 1780’s. We are obliged by mandate of intellectual integrity to develop of thorough understanding of what the Second Amendment meant at the time. This means having an honest look at history—not really our strong suit in modern America, but a necessity. Then we can look at how that original meaning might be applied to modern America.


Based on 150 years of tradition with the militia, their experience in the American Revolution, and the strategic situation at the birth of the United States, the Framers of the Constitution decided to base the security of a free state [State] at least in part on the militia—preferably a well regulated militia. A well-regulated militia being necessary for the security of a free state, the Framers committed the State to a guarantee of access to arms by private citizens. Many questions rise from the turn of phrase used in the Second Amendment. They have been debated exhaustively over the years, almost always by people who knew what outcome they wanted before they started their analysis. The results are tragi-comic. Very few Americans seem very satisfied with the current state of affairs, but we seem tied in a Gordian knot on the subject. My goal has been to help us live within the terms of the law as written and as intended, insofar as such a thing may be possible today.


Definition of terms comes next. It’s impossible to analyze the Second Amendment without having a definition of the terms. This, too, has been undertaken with tragi-comic results. In part, the poor results stem from a paucity of genuine historical knowledge and a lack of military experience on the part of modern Americans. In part, the poor results stem from a predetermined outcome forcing unreasonable and sometimes laughable definitions to be superimposed on the terms. Everyone seems to understand, if only subconsciously, that rigging the definition of terms can fix the analysis favorably. So let’s look at the terms and try to place them in an historical context.


We must start with “militia”. This word has an American context applicable to 1787. How other countries, even England, may have used or currently use the term us not relevant. In its American context, a militia is a reserve formation of citizen-soldiers organized, trained, and equipped along the lines of regular formations. “Reserve” means part-time, non-professional, and drilling [training] according to a specified schedule. An American militia as it existed for the 150 years prior to the drafting of the Second Amendment operated under the command of the colonial (cum state) executive, who delegated his authority to the officers commissioned within the militia and to lesser executives within the colony. Regulation of the militia once assembled for drill or mobilized under the command of the authorized executive was conducted according to the equivalent of a colonial UCMJ (Uniform Code of Military Justice) which was drafted and ratified by the colonial-cum-state legislature. Among the regulations passed by the legislature were a schedule of drills, pay (as applicable), conditions of mobilization, duration of mobilization in terms of the maximum number of days per annum that a militiamen could be mobilized, and what amounted to a TO&E (table of organization and equipment) for the period. It’s worthwhile to note that among the applicable regulations was the rule that militia could not be compelled to serve on the soil of another colony/state, much less a foreign country. Volunteers could go where they wanted, and militia units were fruitful recruiting grounds for ventures outside a given colony and even foreign ventures. But the militia unit itself could not be compelled to go, nor were its members subject to a draft of any sort. Traditionally, the militia provided its own weapons; however, by the eve of the American Revolution militias often maintained small arms for poorer members of the militia and crew-served weapons held at the local armory.


Having defined the term “militia” in its context in the 1780’s when the Second Amendment was written and ratified, I’ll look at a few things the militia is not.


The militia is not the Regular Army. The Regular Army is a professional force of full-time soldiers. They, along with their predecessor the Continental Army, serve under the command of federal (continental) leadership. They can be compelled to serve anywhere in the world at the discretion of national leadership.


The militia is not the Army Reserve. The Army Reserve is a force of citizen-soldiers under the command of the federal executive. There is no effective limit on the number of days per year a reservist can be mobilized. They can be compelled to serve anywhere in the world at the discretion of national leadership.


The militia is not the National Guard. While it is true that the National Guard is descended from the states’ militia, since 1903 the National Guard has been a joint state-federal reserve force of citizen-soldiers. The federal government is the senior partner, which means the federal government is authorized to take command of the National Guard at will. There is no effective limit on the number of days per year a National Guardsman can be mobilized. The National Guard can be compelled to serve anywhere in the world at the discretion of national leadership.


The militia is not law enforcement. Law enforcement is predominantly full-time professionals enforcing the law. Generally they are not organized along the lines of military units, although a few police units cross the line into paramilitary status. The principal mission of law enforcement is law enforcement. They are authorized to take life on an as-needed basis in the execution of arrests and warrant serving, etc. in a civil setting. The militia is for making war, which means deliberately taking life for the purpose of achieving military objectives. Though there might be some crossover, the roles are distinct. One might argue that police auxiliaries could constitute a militia. I am open to further discussion on this point.


The militia is not any of the so-called “constitutional militias”. “Constitutional militias” are gangs of armed civilians operating on their own recognizance. They are not commanded by the state executive or any of his designees. They are not paid or regulated by the state legislature.


These distinctions are not arbitrary. They are meaningful in that the defining qualities of the militia I listed above reflect a philosophy that was relevant in the 1600’s when the first militia units were formed and remains relevant today. The distinctions between the Regular Army, Army Reserves, and National Guard on the one hand and the militia on the other come down to ownership. The federal government owns the first three groups, though the states pay to use the National Guard when the feds don’t have a job for the Guard. The states own the militia. This distinction plays into the ability of the militia to execute its two primary missions: defense of the state against foreign aggression and defense of the state against domestic tyranny. I’ll come back to this later.


The other important distinction goes to who has authority to kill—particularly, who has the authority to kill agents of the State as required. Self-defense covers some types of homicide, but this is not what the so-called “constitutional militias” have in mind. Taking life outside of a self-defense situation is called murder. This is especially true when the person killed is an agent of the State carrying out his assigned duties, like serving a warrant, keeping the peace, protecting a government facility, etc. The State delegates the right to kill people outside of self-defense situations. Only those serving the State (or state) under the command of civil authority and regulated by the legislature can be delegated the right to employ lethal force outside of a self-defense situation. In short, folks can’t just go running around killing whomever they please under whatever pretext serves—including claiming that they are overthrowing tyranny. The right to overthrow a tyrannical government, including killing police and soldiers, is a natural right. However, the Second Amendment is a binding contract between the State and the citizenry. The State cannot possibly authorize the citizenry to overthrow the republic on their own recognizance. A method has been put in place for the citizenry to overthrow tyranny, though.


The militiaman possesses the authority to take life while mobilized because he is delegated that authority through the chain of command which has the state chief executive (governor) at its apex. The chief executive is an elected official. He is authorized to act in the interests of the electorate. Therefore, his delegation of the authority to kill reflects the will of the electorate. The electorate is the basis of authority in the republic. The authority to kill originates with the electorate, passes through the elected executive, and is passed down to the troops serving under the command of the elected executive. Authority to regulate the militia originates with the electorate and is passed to the elected legislature. Absent the authority originating with the electorate, people may not kill other people (outside of self-defense) legally. For this reason, so-called “constitutional militias” are not militias at all. They are armed mobs. Their internal decision-making mechanisms are irrelevant. Absent authority of command and lethal action delegated by the executive and absent regulation by the legislature, these armed groups cannot possibly be considered militia.


I will come back to the authority to kill agents of the State as required later. For now, suffice to say that the organizations that have it belong to the federal government or law enforcement, while groups that would like to have that authority don’t have it.

In fact, there is no organization in modern America that meets the definition of “militia” as the Framers would have recognized it in the 1780’s. What was the militia became the National Guard over the course of a century-long transformation. The closest entities to militia in modern America are the State Guards, which I will refer to hereafter as State Defense Forces (SDF) for the sake of clarity. The SDF, which belong entirely to the states and which have no federal mission [The legality of this claim is under debate.] basically meet the definition of militia. Where they fall down, though, is that they are so wretchedly and pitifully incapable of executing either militia mission (defense against foreign aggression and/or domestic tyranny) that I shudder to call them the same thing as the 14,000 man force of Massachusetts militia that harried the British all the way back to Boston in April 1775 and established a siege of the city thereafter. Still, the SDF represent a viable kernel for a force that not only technically meets the definition of a militia but also might be able to execute one or both militia missions as well as crack the code on one of our most irritating gun control problems.


Having defined the term “militia”, I will look at “well regulated”. How do we recognize a well regulated militia from one that is not well regulated? Why would this matter? At the time the Second Amendment was written, “well regulated” meant “well disciplined” or “well functioning”. Any combat unit needs to be disciplined and


I want to examine the two missions of the militia next. Examination of the missions will tie back into the definition of the militia and why none of the organizations mentioned above except the SDF possibly could meet the definition of “well regulated militia”.


The “well regulated militia” had two primary missions in the late 1780’s: defense of the country against foreign aggression and defense of the country against domestic tyranny. These missions survive in the oath of service for all components of the military, which includes defending the Constitution against all threats foreign and domestic. Both of these missions involve the militia taking to the field (going into combat) against professional troops. These missions in turn necessitated ensuring that the citizenry comprising the militia have access to military grade small arms. Even the secondary mission of the militia—namely, support of law enforcement when armed and organized criminals and/or rebels become too powerful for law enforcement to tackle without additional combat power—requires access by the citizenry comprising the militia to military grade small arms.


What leads one to believe that the two primary missions of the militia would be combat against foreign professional troops and domestic tyranny? The Second Amendment points us in this direction: “A well regulated militia, being necessary to the security of a free state…” In what way, we should ask, is a well regulated militia necessary to the security of a free state? In what way is a disciplined and well functioning body of citizen-soldiers related to the security of a free state? Clearly, violence organized on a large scale must be involved in any threat to the security of a free state such the militia would be necessary for the purpose of guaranteeing security. After all, any military formation exists for the purpose of employing organized violence on behalf of its leadership. If the purpose of the leadership is served merely through a convincing threat of violence, so much the better. Who, then, would be capable of employing organized armed violence that would require a disciplined and well functioning force of citizen-soldiers to oppose it? Professional troops top the list.


At the birth of the United States, the country was in a poor security situation. The population of roughly 3 million was scattered along the Atlantic seaboard between Maine and Georgia. The federal government was destitute. The Regular Army amounted to less than 5,000 troops, and they were widely dispersed. Any of the major European powers could have landed more troops than the Regular Army possessed anywhere along the coast at will. The only hope the United States had of facing such an eventuality was the militia. Given Washington’s experience with the militia during the Revolution, a well regulated militia was vastly preferable to a half-assed militia, which would in turn be vastly preferable to a bunch of anonymous dudes with guns who would be unable to even organize themselves into the firing lines stipulated by the weapons and tactics of the day, much less endure trading volleys with professional troops. The militia was not the ideal choice, but it was the best option available to a State with nearly empty coffers.


Even if the early federal government had possessed the means to field a Regular Army sufficient for the security needs of the young republic, the Founding Fathers probably would not have wanted to maintain such a force. They were deeply suspicious of standing armies. Many of the Founding Fathers were classically educated men. They understood that standing armies can become the tools of tyranny. The Roman Republic began its transition to the Roman Empire when Caesar crossed the Rubicon with troops more loyal to him than to the ideals of the Republic. The King of England attempted to enforce sharing the burden of the French and Indian Wars on the American Colonies through his professional force. The Framers of the Constitution understood that the discipline that makes an army effective in the field can be turned to the purposes of a domestic despot. Thus a well regulated militia was necessary for the security of a free state that might under invasion by professional troops fielded by England, France, Spain, or even the Netherlands.


The same thinking that made the Framers mistrust standing armies meant that they had to accept that whatever professional force the United States might possess could be turned to the purposes of a domestic tyrant. The Framers understood that loyalty might flow from the troops to whomever sat at the apex of command. Therefore, a force of drilled and disciplined professionals would have to be counterbalanced by a much larger force of reservists if the qualitative advantages of the professional troops were to be offset. Loyalty to the chain of command would have to flow someplace besides to the chief executive of the federal government.


The situation set up by having multiple chains of command conforms to the Enlightenment philosophy of regarding separation of powers which is found everywhere in the Constitution. A professional force with standards of quality comparable to that of other professional forces would operate under federal command. A much larger force of reservists would operate under the command of the various state governors. The rise of genuine tyranny could not help but produce a backlash from the various states. Together, the states would field a force far too powerful for a domestic despot controlling only federal territory and only federal troops to overcome. Singly or in small groups, the states would not have the combat power to overcome federal forces. Thus a situation arising from the republican process which favored the majority would not result in a successful military resolution of grievances by the minority. [See: the American Civil War.] The balance of power between a numerically inferior but qualitatively superior professional force and a numerically superior but qualitatively inferior force of citizen-soldiers loyal to their various state chief executives would secure the status quo so long as the federal government didn’t do anything to piss off all or most state governments (such as falling into the hands of a domestic despot).


This ideal regarding an internal balance of power ran afoul of military considerations fairly quickly. I’ll come back to that.


I’ll sum up what I’ve written so far before delving into more of the details. The Second Amendment was written to ensure that the states’ militia had access to military grade small arms with were necessary for the execution of their two principal missions. The militia referred to in the Second Amendment has several defining characteristics which are not met by the Regular Army, the Army Reserve, the Army National Guard, professional law enforcement, or any of the so-called “constitutional militias”. The only organization in modern America that could be called a state militia is the conglomerate of State Defense Forces. The missions of the militia when the Second Amendment was written are the defense of a free state [State] against foreign aggression and the defense of a free state against domestic tyranny. Both of these missions require the militia to go into combat against professional troops.


Now I want to look at an idea that many Americans will find heretical: the Second Amendment was not written to protect private ownership of firearms for self-defense or hunting. That’s the bad news. The good news is that guns designed for self-defense don’t need the protection of the Second Amendment. Self-defense is a common law right. Access to a firearm designed for self-defense is part and parcel with that right. The Supreme Court clearly says so in the majority ruling of Heller v DC. They also say that one does not have to be in a militia to own a gun. This means that there is no connection between owning “a gun” and being in the militia. [Nod to Raellus] It’s noteworthy that the Supreme Court doesn’t define “a gun”, even though anyone who knows anything about firearms knows that an M1911, an M1903, and an M4 are drastically different machines operating on similar principles but with such different characteristics in terms of volume of fire and effective range that lumping them together as “guns” is about as serviceable as lumping a Mini Cooper and a commercial tractor trailer together as “automobiles”. I suspect that the author of the majority opinion deliberately avoided more specific terminology.


A right to self-defense means that the defender has the right to use lethal force. Obviously, most of us prefer that the defender not kill the assailant, if for no other reason than killing other human beings scars the psyche of the killer. No matter how much some of us may believe that Slasher the Mad Dog Rapist deserves a timely end to his criminal career at the hands of his intended victim, killing Slasher will affect the defender in ways that stunning him, disabling him, or crippling him will not. This much said, if the choice is between Slasher getting two to the chest and one to the ocular cavity or Slasher carrying through on his intended violation, I think people generally will support the former.


Self-defense has limits. If an armed intruder breaks down the door and refuses to believe that my wife will shoot him even though she has my revolver in hand and my kids crying with fear behind her, then his death can be ruled self-defense. On the other hand, a bunch of private citizens can’t go rolling into the neighborhood of some other private citizens on a shooting spree on the basis that “We know THEY are a threat to us, so we got them first.” Somewhere between these two extremes has to be drawn a line that separates self-defense from other types of homicide. This relates back to the tools used.


For the sake of drawing a line between self-defense and offensive homicide, I’m going to state with confidence that using lethal force against anyone 100 meters cannot be considered self-defense except under very special circumstances. A firearm optimized to service a target at ranges less than this can be considered a weapon optimized for self-defense. A firearm optimized for some other range cannot logically be considered a weapon optimized for self-defense. A firearm optimized for self-defense can and should be safeguarded for access by civilians under the common law right to self-defense.


Now, we all know a guy who can shoot the wings off a mosquito at 200 meters with a .44 revolver with a 4-inch barrel. That’s not what the weapon is engineered to do. Each manufacturer will make a different claim about maximum effective range of its .44 revolver with a 4-inch barrel, but very few of them will claim that the average shooter can get a 3-inch grouping at 100 meters. So the definition of maximum effective range, which plays into whether a firearm can be classified as optimized for self-defense or not, has to based on the machine-determined maximum effective range is modified by the ability of a gun owner who is firing a realistic number of rounds per month and who has little or no professional training.


A number of years ago I read an FBI report saying that 80% of gunfights in the civilian world occur at ranges of 21 feet or less. 40% of gunfights in the civilian world occur at a range of 5 feet or less. I think 100 meters is absurdly generous, but I’m willing to be ridiculous to draw a distinction between self-defense and non-self-defense that cannot be argued against by anyone who hopes to win a court case.


The point of all this fussing about ranges is that some types of firearms are covered by the common law right to self-defense. Some are not.


The guy with the AR-15 at home asks indignantly why his AR-15 shouldn’t be covered. That’s his first choice for home defense, after all. The answer is that use does not define capacity. The AR-15 is designed to deliver a high volume of fire accurately against human targets at ranges to 300 meters. This is inconceivable in a self-defense application. One might as well claim that an 18-wheel tractor trailer should not have to be registered as a commercial truck because the owner pinky promises he’s only going to go down to the corner store for cigarettes in it. Let’s be honest with ourselves: no one with any sense buys an AR-15 buys it because he thinks it’s better suited for home defense than a handgun or a shotgun with the shortest legal barrel. He buys an AR-15 specifically for the high volume of fire and the fact that he can hit a man-sized target 3 football fields away 50% of the time if he’s as good a shot as I am—more frequently if he’s a better shot, which is not that hard to imagine. (I’m not a great rifleman. I’m serviceable. I’d probably have been recycled a half-dozen times if I had gone through Marine Boot.) He buys the AR-15 specifically because it is the [equivalent of the] personal weapon of the infantry.

A firearm optimized for self-defense is not going to help a militiamen provide the security of a free state very much. The professional troops he’s supposed to be fighting, foreign or domestic, will be armed with whatever the standard small arm of the day is. A handgun can make a militiaman dangerous to one or more soldiers of the opposing force under the right conditions. A handgun is a useful backup weapon for CQB. It is not a serviceable primary weapon for a soldier of the infantry. Soldiers who are issued side arms as their primary weapon are not expected to engage in combat personally. They are literally issued side arms for self-defense.


Bringing this all back to the militia and the meaning of the Second Amendment, the Amendment was written so that a well-regulated militia could guarantee the security of a free state. The militia is a combat unit composed of citizen-soldiers. They are expected to go into combat against professional forces. The Second Amendment was written to guarantee the citizen-soldiery access to the primary weapons necessary to fight professional troops. If firearms for self-defense are not useful as a primary weapon for militiamen fighting professional troops, and if access to firearms for self-defense is already guaranteed by the right to self-defense, then what good purpose is to be served by imagining that the Second Amendment secures a right such that the securing is not very useful and redundant? The answer is that there is no good purpose served.


Several important items remain to be addressed.

• What about hunting and firearms optimized for hunting?
• If the Second Amendment was written to ensure that the citizen-soldiers of the militia have access to the appropriate firearms, how do we determine which firearms are covered?
• What happened to the militia?
• The rifles of the infantry are already out there in some numbers. Since there is no militia, now what do we do?