The Militia Question, Resolved: Second Amendment 101
by Michael E. Kreca
"The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so. Indeed I would go so far as to say that the underdog is a sine qua non for the overthrow of any sovereignty. So let's not have any native militia or police. German troops alone will bear the sole responsibility for the maintenance of law and order."
~ Adolf Hitler, April 11, 1942, in “Hitler's Table-Talk at the Führer's Headquarters 1941–1942,” Dr. Henry Picker, ed. (Athenaeum Verlag, Bonn, 1951)
Twenty-seven words first published in 1790 are now the source of the bitterest controversy the USA has seen since the 1960s if not since the War Between the States a century before that. They are central to an issue that splits left and right, male and female, white and nonwhite, North and South, East and West, wealthy and not-so wealthy.
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.
Let’s get this straight right away. First of all, the inalienable right of individuals to keep and bear arms as a check on a tyrannical government predates our Declaration of Independence and Constitution. This, among other things, was clearly and eloquently expressed in Sir William Blackstone's 1768 "Commentaries On The Laws of England.” Hence, the Founders were operating within a long historical tradition based upon English common law.
Secondly, the term “well-regulated” meant something quite different two centuries ago. It is not today’s definition of “controlled,” “limited,” or “restricted” but was instead defined as “having proper kit and provisions” or in the case of objects or machinery, “properly maintained and kept in good repair.” The next is the Constitutional definition of the “militia,” and this what requires detailed explanation. The militia issue was extensively debated during the 1787–89 Constitutional Convention in Philadelphia and today has sadly been ignored by both sides in this issue.
Founder George Mason explicitly wished to have it clearly spelled out that the militia was “of the whole people," in effect, a “general militia” that was affirmed in the Second Amendment and the 1792 Militia Act. Mason and his supporters feared the development of "special militias" – ones much like the Puritan "Roundheads" led by Oliver Cromwell and their opponents, the “Cavaliers,” in the English Civil War of 1642–57. Special militias are nothing more than state-sanctioned paramilitary groups – witness the German Nazi SA and its successor the SS as well as the Italian Fascist "Blackshirts." In those cases, Nazi/Fascist Party membership was strictly required to join them as well as to legally own a firearm of any kind in either of those countries at the time.
These two groups were little different than standing armies. The difference is that they were created and used by the German and Italian governments to bypass any laws against using the military domestically against the people (or in the absence of such laws, to forestall the military’s unwillingness to do so) – in order to crush dissent and terrorize opponents. (Sound familiar?) Cromwell used his Roundheads to do much the same thing, even having King Charles I beheaded after a bogus trial, later closing Parliament and then invading Ireland with plans to wipe out the Catholic population, killing those of his comrades and anyone else who refused to comply.
Distressingly, we now have a lot of special militias in the USA – the Secret Service, FBI, BATF, DEA, IRS, the National Guard and today’s "near federalized" status of most state and local police departments – to name but a few. And they are all unconstitutional, if the plain meaning of the 2nd Amendment and the 1792 Militia Act is correct. George Mason's fears about them were well placed and have come tragically true. All these alphabet-soup special militias can do and have done (other than freely lapping up taxpayer money in ever-increasing amounts) is be responsible for numerous cruel and meaningless tragedies. These range from spying on, harassing and ruining the lives of anyone deemed an “enemy of the state,” to brutally breaking strikes, violently disrupting demonstrations and killing innocent people in places ranging from Kent State to Ruby Ridge and Waco.
Even the courts are beginning to revive this long forgotten but crucial “general vs. special” militia distinction. The 1990 Supreme Court case Perpich vs. Department of Defense is a case in point. Then Minnesota Gov. Rudy Perpich claimed the DoD violated the Constitution when it ordered the Minnesota National Guard (which he claimed was the 'state militia') to duty outside the state without his consent or that of the state legislature.
The Supreme Court ruled against Perpich. It held the National Guard is an integral component of the US Army Reserve system (it has been since 1916). It further supported its ruling by specifying the difference between the “special militia” (in this case the Minnesota Guard) instead of the “general militia” (citizens with privately procured and owned arms) as expressed in the 2nd Amendment. Also in 1990 the Court in another case affirmed the definition of “the people” expressed in the Bill of Rights as meaning individual persons, not a group.
So the statist left has its “militia” and the rest of us have ours. No wonder so many of them can’t free themselves from the false but mesmerizing aura of the “Militia = National Guard” equation. The statist left doesn’t want to because it’s interested not in the right of individuals to protect their lives and liberty against a tyrannical federal government, but in giving that tyrannical federal government a blank check, figuratively and literally, to indulge in state-sponsored terror under the tautological trinity of “crime prevention," "anti-terrorism" and "national security.” And Clinton Defense Secretary William Cohen has all but told us to “get used to the idea.”
So there it is. General militia versus special militia.
Which are you?
Think about that question the next time you are cajoled by otherwise-idle Million Mom March mavens to support “sensible gun laws” or are exhorted by the denizens of the pseudo-patriotic “law-and-order” crowd to “back the badge.”
Published in the May 26, 2000 issue of Ether Zone.
May 26, 2000
Michael E. Kreca lived in San Diego and had been a financial reporter for Knight-Ridder, Business Week and the Financial Times of London. On February 11, 2006, he was shot to death by a government cop.
Copyright © 2000 Ether Zone