2nd Amendment & The Militia – My Response To Supreme Court Justice Warren Burger

One of my favorite people to debate on Twitter is @redwinepolitics.  They too have their own blog that I highly recommend.  They are insightful and willing to listen to an opposing view, which is not all that common I have found.  For that they have gained my utmost respect and I welcome any and all conversations they may propose.

RWP_Justice W Burger_2nd Amendment

This evening I saw a post on Twitter that @redwinepolitics made.  The quote by Supreme Court Chief Justice Warren Burger got me to thinking, and thus inspired this post as my response and thoughts on what he said.

The 2nd Amendment states: “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.”

In the infographic that you can clearly see where they highlighted the section discussing the militia, it’s role as it pertains to the 2nd Amendment and the defense of the state.  The text then continues to argue that that very language refutes the argument held by the “Gun Lobby’s” belief that it guarantees the right of every citizen to posses firearms.

I believe Justice Warren’s interpretation of what composes a militia is where his argument is lost.

The Federalist Papers are a collection of 85 essays published in support of ratification of the United States Constitution.  These essays were written by Alexander Hamilton, James Madison and John Jay and are frequently quoted by Supreme Court Justices when writing their decisions on a broad range of subjects, and the 2nd Amendment is no exception.  That is why I find it curious that Chief Justice Burger has such a different view of what a militia is, and is not, composed of.

Federalist No. 29 by Alexander Hamilton was titled “Concerning The Militia” and in it he touched upon that it would be necessary for the government to raise a specialized military focused on the defending of our nation when he wrote – “select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. “. 

The reasoning behind this was simple.  Militia’s were formed of ordinary citizens.

To properly train them in the defense of a nation would be futile and a waste of resources.  Hamilton expressed that very sentiment when he wrote “The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.”

Federalist No. 46 written by James Madison continued on Hamilton’s proposal that select corps be formed for the defense of our nation, but cautioned that those corps should never outnumber our citizens.  To that end Madison wrote “Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.” 

Madison’s explanation as to why there should be a limit on the size of those corps charged with defending our nation was, simply put, so that the army controlled by the government could not outnumber the citizens thereby leaving the citizens in the position to possibly overtake the government should it turn tyrannical in nature.  Madison referenced the Revolutionary War in his explanation saying “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.”

I agree with Chief Justice Burger’s assessment of what a militia’s purpose is.  However it is the composition of what makes a militia is where our opinions differ.

It is the everyday farmer, baker, candlestick maker, tailor, etc. who compose the militia and not specifically trained select corps as Hamilton and Madison pointed out in their Federalist Essays.  It is because of the fact that the militia is comprised of everyday citizens that the 2nd Amendment was written as it was.  So that the rights of those everyday citizens to possess the means necessary with which to form a militia in the defense of our nation if and when the need should arise is protected.

I contend that the wording of the 2nd Amendment was not ambiguous at all in nature as many have said.  Rather it was written with explicit intent behind it.

“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.”

We The People_Constitution

It is by no mistake or oversight that it hearkens back and pays homage to the first words written in the document that it amends.  As we all know, it begins with the simple yet elegant words that have come to embody the very patriotism, pride and sense of belonging we all feel when we see them written.

“We the People…”.

We the People of this nation, the very people who would form to defend our country and civil liberties, shall not have our right to keep an bear arms infringed upon thereby preventing us from having the ability to form a militia.

Of course in our current day and age our superior military is more than capable of defending our nation without the need of a militia composed of citizens.  I will not presume to wax so poetically as to not acknowledge that glaring reality.  But I can’t help but think that should the need ever arise that every able bodied citizen would, in fact, form up in a militia and do their best to defend our nation and our Constitution no matter the cost.  (okay, so maybe I am still waxing-poetic….it’s my blog – I’m allowed!)

It is that idea that takes me back to Federalist No.29 where Hamilton said “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” 

The 2nd Amendment is our guarantee that we can remain properly armed and equipped against whatever tyranny we may face in the future.

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