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Washington Post on "a 'Militia' Means Just That":

An excerpt from the Washington Post's coverage of the D.C. Circuit's Second Amendment decision:

U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, upholding the D.C. law, and saying the Second Amendment was narrowly tailored to membership in a "militia" — which he defined as an organized military body.

The case moved on to the appellate court, with the National Rifle Association and numerous states siding with the pro-gun faction, and the Brady Center to Prevent Gun Violence and other states and cities joining with the District.

In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that. Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense.

This is either a big editing error — the "that" in "means just that" referring to a definition given three sentences and two paragraphs earlier — or an unwarranted bit of snide (snidish?) editorializing. If the case was just a question of whether "'militia' means just that," the collective rights argument might be stronger. But here's what "militia" means even today:
1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
So what exactly does "'militia' means just that" mean (other than "'militia' means what I want it to mean")? (On top of that, the right is expressly said to be a right "of the people," so what "militia" means is hardly the end of the story.)

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

Thanks to PostWatch for the pointer.

33yearprof (mail):
Any interpretation of the Second Amendment other than the individual rights view requires astounding mental gymnastics.
3.9.2007 10:42pm
Gordo:
This is making a mountain out of a molehill. Clearly, the article refers to the definition of militia referred to earlier in the story.

Speaking of "snide"...
3.9.2007 11:04pm
Dave Hardy (mail) (www):
1. Madison's draft, as introduced in the House, used the term "free country," suggesting that "free state" meant "free political state."

2. The phrase is swiped from the VA declaration of rights of 1776, and as I recall VA then and now called itself a "commonwealth," not a "state."

3. I have some vague memory that an equivalent phrase is found in some British milita law of the 18th century, maybe of the 1760s, but never went back to find it.
3.9.2007 11:18pm
Eugene Volokh (www):
Gordo: So you think that in "a 'militia' means just that," the "that" refers back to something said three sentences and two paragraphs ago? It's possible -- that's why I noted it -- but it seems pretty odd, no?
3.9.2007 11:19pm
Joshua:
First of all, has anyone else here been having problems accessing this blog in the past couple of days? Lately I've been getting frequent 404 errors when trying to visit VC. Prof. Volokh and company need to be made aware of this, if they're not already.

Anyway, getting back on topic:

4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.

This item might be amended to read "...and typically regarding themselves, and/or portraying themselves to the public, as defenders..."

A big part of the problem with tying Second Amendment rights to militia membership is that it's next to impossible to craft a legal definition of a militia that can reliably and consistently distinguish between a "genuine" militia (i.e. one whose actual purpose is consistent with #4 above) and a sham one (i.e. one whose publicly stated purpose is consistent with #4 above, but whose actual purpose is something else entirely).

Since our legal system can only judge a militia by what it can glean (and demonstrate in court) about that militia's character, #4 above effectively extends Second Amendment rights to any armed organization with enough legal and political savvy to pass itself off as a bona fide militia. This becomes a problem when said armed organization is actually just a front for, say, a street gang, a Branch Davidian-style religious cult, a hate group of some kind, or yes, even a terrorist cell.

Of course, this is a truism that goes well beyond the Second Amendment, namely that there's no such thing as a system that can't be gamed. Equally obviously, doing away with the militia requirement leaves the door at least as wide open to this kind of abuse, if not more so. But at least that approach doesn't create a legal mechanism by which any manner of scumbags can portray themselves to the public as righteous defenders of individual rights against the Big Bad Government(TM).
3.9.2007 11:20pm
Kevin Murphy:
aside(Joshua): Some nameservers, including my usual one (dns1.dslextreme.com), don't resolve volokh.com, or do so only intermittently. This appears to be a network issue getting to, or a standards issue with, the Volokh.com authoritive server (DNS1.REGISTERFLY.COM). Seems to have started this week.

Doesn't the issue of what a "militia" is really only matter if the Amendment is limited to militias? Once you accept any part of the individual argument, however regulated, you have to stop parsing "militia" as it no longer matters.

I'd strongly advise folks to READ the opinion, as it states the individual case very clearly and succinctly. Also read the dissent which is, in a word, embarrassing.
3.9.2007 11:51pm
peter jackson (mail) (www):
Someone should remind Bill Miller and Robert Barnes that "the right of the people means just that, the same thing it means in the first and the fourth amendment.

yours/
peter
3.9.2007 11:58pm
Lev:
USCode TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
3.10.2007 12:02am
Christopher Fotos (mail) (www):
Someone should remind Bill Miller and Robert Barnes that "the right of the people means just that

Heh.

I wish I'd written that.
3.10.2007 12:03am
Gary Rosen:
Given the sentence that follows "... a 'militia' means just that[.]", I think the Post may have been trying to say something entirely different (though very poorly worded). Here is the sentence:

"Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense."

So I think the "just" in "just that" refers not to the dispute over the definition of militia ("organized group" vs. "all the [adult] people" but to the central dispute over whether the meaning of the 2d Amendment is confined only to the use of guns in a militia (however that is defined) or really is an individual "right to keep and bear arms".

I read parts of the decision, and the majority referred to an "intermediate" point of view that the right is individual, but only applies to the use of guns by an individual as a member of a militia. They concluded that this point of view was ultimately indistinguishable from the "collective right" point of view that they rejected.
3.10.2007 1:04am
Carolina:

Also read the dissent which is, in a word, embarrassing.


Agreed.

Judge Henderson's name was one of those tossed around by the cognoscenti for the most recent nominations to the Supreme Court.

In the event we still have a Republican president for the next vacancy, I would humbly submit her dissent has taken her out of the running.
3.10.2007 1:05am
theobromophile (www):
I find the idea that the residents of DC (being directly ruled by the federal government) have less need to fight the tyranny of the federal government than the residents of the States, to be utterly amusing.

Judge Henderson made much ado about the "standing army" of the federal government, but, unless I'm missing something (and someone please clue me in), funds for the Army may only be allocated two years at a time.

Blame it on growing up in Massachusetts, but I acquired a notion of Colonial national defence as one made up primarily of Minutemen. A "militia" was all of the nice young boys* in town. While any federal army would not be adverse to helping out, it generally took them a while to get there (telegraphs for communicating the invasion and tankers for moving troops not having been invented yet). Judge Henderson would seem to require a standing army in DC to offer the same protection to that area - one that would miraculously be more benevolent to residents of DC than Congress.

*Or girls who dressed up as prepubscent boys, whichever.
3.10.2007 1:43am
Mike G in Corvallis (mail):
Judge Henderson's name was one of those tossed around by the cognoscenti for the most recent nominations to the Supreme Court.

In the event we still have a Republican president for the next vacancy, I would humbly submit her dissent has taken her out of the running.


Hmmm ... I wonder whether she might be gambling that the next occupant of the White House might take notice of her "brave, lonely dissent" ...
3.10.2007 3:01am
magoo (mail):
"I find the idea that the residents of DC (being directly ruled by the federal government) have less need to fight the tyranny of the federal government than the residents of the States, to be utterly amusing."

Assuming arguendo that there is a "need to fight the tyranny of the federal government," I find the idea that possessing handguns in your home will help anyone do so to be utterly amusing.
3.10.2007 9:43am
Charlie (Colorado) (mail):
Assuming arguendo that there is a "need to fight the tyranny of the federal government," I find the idea that possessing handguns in your home will help anyone do so to be utterly amusing.

Ignorance is no excuse.
3.10.2007 12:23pm
Dave Hardy (mail) (www):
Doesn't the issue of what a "militia" is really only matter if the Amendment is limited to militias?

That was what struck me about the question, which seeks to contrast the ruling that the 2nd is an individual right, with another ruling that supposedly says the term militia means what it says. Huh? Where's the contrast/conflict between those two statements?
3.10.2007 12:28pm
Clayton E. Cramer (mail) (www):
magoo writes:


Assuming arguendo that there is a "need to fight the tyranny of the federal government," I find the idea that possessing handguns in your home will help anyone do so to be utterly amusing.
In an urban setting, a semiauto handgun can actually be pretty useful as a revolutionary weapon--and since it is concealable, it doesn't have to stay in your home.

Significantly, when Britain adopted the Firearms Act in 1920 that regulated rifles and pistols, it was specifically stated by members of the Cabinet that the object was to prevent a Bolshevik revolution. In public, of course, they pretended it was a crime control measure, until one of the idiots admitted it in Parliamentary debate.

After discussing Henry VII's attempt at disarming the great nobles, Kenworthy pointedly warned that disarming the population would not be an effective way of breaking popular control:

I do not know whether this Bill is aimed at any such goal as that but, if so, I would point out to the right hon. Gentleman that if he deprives private citizens in this country of every sort of weapon they could possibly use, he will not have deprived them of their power, because the great weapon of democracy to-day is not the halberd or the sword or firearms, but the power of withholding their labour. I am sure that the power of withholding his labour is one of which certain Members of our Executive would very much like to deprive him.[90]
The Earl of Winterton responded that Kenworthy,


holds the most extraordinary theories of constitutional history and law. His idea is that the State is an aggressive body, which is endeavoring to deprive the private individual of the weapons which Heaven has given into his hands to fight against the State.... Holding these views, and believing that it is desirable or legitimate to arm themselves, with, as far as I understand his remarks, the ultimate intention of using their arms against the forces of the State, he objects to this Bill. There are other people who hold these views in this country, and it is because of the existence of people of that type that the Government has introduced this Bill....[91]

[90]Parliamentary Debates: Official Report, House of Commons, 5th series, 1920, 130:658-9.

[91]Parliamentary Debates: Official Report, House of Commons, 5th series, 1920, 130:662-3.
3.10.2007 1:29pm
Basilisk (mail):
There is an additional interesting effect of the holding in Parker v. D.C. In reviewing the history of firearms ownership and the requirement that citizen soldiers provide their own weapons (including pistols for officers), The D.C. Circuit explains that handguns are clearly within the ambit of protected weaponry under the Second Amendment. It is clear that in considering application of the Second Amendment in conjunction with modern advances, assault weapons such as M-16s and AK-47s would also be clearly within the ambit of protected weaponry. Consequently, legislation banning the possession or sale of assault weapons would also be unconstitutional.
3.10.2007 3:55pm
wuzzagrunt (mail):
Only the "Reality Based Community" could conclude that the 2nd Amendment was contructed, and inserted into the Bill of Rights, in order to guarantee the government's right to own guns.

/Bartender! Gimme one of whatever they're drinking.
3.10.2007 4:00pm
Dilan Esper (mail) (www):
Professor Volokh is eliding over one of the fundamental weaknesses in the pro-gun rights interpretation of the "militia" language. Yes, the original intent was clearly that the militia comprised able bodied adult males. But how, exactly, do women get a right to bear arms? That wasn't the original intent of the Second Amendment. And it wasn't the original intent of the 14th Amendment either.

Of course, one can dispose of original intent and just say that the meaning of the words "right of the people to keep and bear arms" refers to an individual right. I am not much of an originalist and happen to believe this is true. (Subject, of course, to the proviso that the militia be "well regulated", i.e., regulation, but not prohibition, is constitutional.)

But if you are trying to do it by means of original intent (and I know a lot of gun rights advocates want to do this because that way they can circumscribe the type of "regulations" that are constitutional based on what was permissible and customary in the 18th Century), there is NO original intent basis for women having a right to bear arms.
3.10.2007 6:06pm
Californio (mail):
I note that no newspaper account places the context of the decision explicitly in terms of "individual right" vs "collective" right. Indeed, reading the LA Times, these words do not appear anywhere. Is it because the individual right orientation sounds better? I also note that no one seems to have highlighted that the Miller decision (lauded so by the newspaper articles) also noted that a sawed-off shotgun was not a militia type weapon, hence weakening the second amendment article - therefore an AK-47 today would be less prone to restriction under Miller, right?

And what of militia= national guard. Does this mean the states and not the Feds control these armed units? Is it not a infringment on states powers to have federalized Guard units as a matter of course? Can California have a Navy then? Marines? Air Force? Hmmmmmm.
3.10.2007 6:11pm
Truth Seeker:
Assuming arguendo that there is a "need to fight the tyranny of the federal government," I find the idea that possessing handguns in your home will help anyone do so to be utterly amusing.

Four presidents were shot by handguns and one by a rifle. Make that five if you count ex-presidents. Five and a half if you count as half killing the mayor near the president.
3.10.2007 8:42pm
Jamesaust (mail):
Since the object is not "militia" but rather "well-regulated militia" then #3 and #4, and possible #2 are out of the running, being that they are not "regulated" (let alone "well-regulated") at all.

Further, I note that the paragraph (quoted) beginning, "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense," continues with:

"'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Please note "enrolled"(can one overstate the ensuing uproar if the government took "to enroll" gun owners on a Master List?), and the implication of a Duty to Serve. Thus, all those who cannot be compelled by law to serve - the vast majority of citizens - are NOT a militia.
3.11.2007 4:15pm
Clayton E. Cramer (mail) (www):

Professor Volokh is eliding over one of the fundamental weaknesses in the pro-gun rights interpretation of the "militia" language. Yes, the original intent was clearly that the militia comprised able bodied adult males. But how, exactly, do women get a right to bear arms? That wasn't the original intent of the Second Amendment. And it wasn't the original intent of the 14th Amendment either.to bear arms.
Because "right of the people" is the operative phrase, and there were no laws regulating free white women having guns (or even free black women in a number of the states). Furthermore, "head of household" was obligated to own guns for militia aged men in your household. In a few places, such as Maryland, the statute is even explicit on this: "his her or their...."
3.11.2007 5:37pm
Christopher Fotos (mail) (www):
By the way, folks, I think we can put to rest the possibility that "just that" in the story referenced the District of Columbia's contention about militias being organized military bodies. In a story that's actually pretty sympathetic to the plaintiffs, reporters Elissa Silverman and Allison Klein write:

The court ruling hinged on the Second Amendment, which 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."

The District said the amendment applies solely to militias -- a position endorsed in the past by all but one of the nation's federal appeals courts.


I think enough editors and reporters at the Post have sprinkled the word "militia" without further ado to indicate the meaning is obvious--except, as our host has noted, it isn't.
3.11.2007 10:18pm