The Second Amendment continues to be a hot button, divisive issue that becomes more contentious with each passing day. The fact that this issue has us so divided should be a clear indicator that something has gone awry and, more importantly, that something else is going on. Rest assured, this division isn’t homegrown; it’s been manufactured. But by whom? Well, go ask your local conspiracy theorist. It seems he's being proved right these days a lot more than he's been assumed wrong...but I digress. Let's get back to gun rights.
A quick look at the amendment should reveal something obvious that too often goes overlooked:
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.
Anybody without an axe to grind, who is also being intellectually honest, should notice there are two central aspects here: the militia and the people. Thus, a correct interpretation must include both aspects. So, what is this relationship and how does it impact America today?
What both sides of this issue fail to address when arguing with each other is that back in the late 1700s, all free men from age 18-45 were required to be members of the local or state militia. This requirement was codified into law with the Militia Act of 1792.
Here are a few excerpts of the law:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…
And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment...
Thus, there can be no doubt that the law required all free men to be enrolled in the militia from ages 18-45.
Now, let’s take a look at what the law required in terms of firearms:
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided...
Did you see that? Every citizen shall provide himself with a weapon. The law repeats this requirement numerous times:
...and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid...
In 1792, it was required that every man from age 18-45 be enrolled in the militia and that every member of the militia provide his own firearm, not to mention his own ammo too!
And now it becomes very obvious what the Second Amendment is addressing. Had a law been passed back then that prohibited a free man from owning a weapon, he would not have been able to fulfill his obligations to mandatory militia service.
At this point, it is safe to say that those who view the Second Amendment as a constitutional right are actually in the right. Unfortunately, this is where things get confusing.
The nation no longer has a militia as defined in the Constitution (Article 1, Section 8). To be sure, there are many militias out there today, but these are not what we could call Constitutional militias. The Constitution states: “The Congress shall have power to…Provide for the calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel invasion.”
The point is, today’s local militias do not serve Congress; they serve themselves. Furthermore, Congress would never call them out should the need arise. In fact, today’s National Guard units have essentially assumed the functions of the colonial militias. This is the organization Congress would call to suppress insurrections and repel invasions, not the local militias.
But this brings us to another problem. Today’s National Guardsmen do not provide their own weapons; the federal government does. Furthermore, the officers in the guard are commissioned by the federal government, however, the U.S. Constitution directs that officers in the militia be appointed by the states.
Bottom line: The National Guard, while similar to the colonial militia, is not a militia. Yes, it does serve at Congress’ behest and, yes, it is under state control when not serving Congress. However, it is clearly not the same thing as defined by the Militia Act of 1792 and by the U.S. Constitution itself.
And this is where the Second Amendment problem resides. This is why we cannot, as a nation, agree. The issue is not about weapons and their ownership; the issue is that the militia has been replaced with a National Guard, and that the National Guard is nothing more than an extension of the U.S. military. Or to put it simply, the National Guard is not the militia. The militia has been terminated, which should raise some eyebrows and force us to ask questions.
Because it is now ASSUMED that we do not need those old type militias, the right for the people to bear arms is now open to interpretation. Remember, this amendment had everything to do with free men being able to own weapons so they could fulfill their obligations to mandatory militia service. But if the militia no longer exists (and if the Federal Government is issuing weapons to the National Guard), it becomes very difficult to maintain that gun ownership is a constitutional right.
What needs to be addressed is how and why the militia, as defined by the Constitution and the Militia Act of 1792, has been disbanded and replaced with a National Guard. If we don’t have a militia, then we don’t have need for a constitutional right to bear arms. The two go hand in hand.