Right to Bear Arms and Militia

The Second Amendment is clear: “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 right to keep and bear arms is taken as in existence in this language. That right is taken for granted. The amendment provides a reason in structuring the political system why that pre-existing right shall not be infringed. That reason is that it ensures a well regulated militia, meaning a militia with arms and ammunition that has the know-how to use them. But the purpose of that militia is what is important: The militia is said to be necessary to a free state’s security. The state cannot be a free one unless the right to keep and bear arms is present and operative among the people. (State here doesn’t mean government; it refers to the mode of being of the people or the body politic.)

The Supreme Court’s words in 2008 more or less get some of this right: “In the 2008 case District of Columbia v. Heller, the Supreme Court held that the ‘Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.'”

Thomas Cooley, who was Justice and Chief Justice on the Michigan Supreme Court, explained it in 1898 as follows:

“The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon…. [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order.” (Thanks to Teddy Johnson for this passage)
— Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]

This passage has an important idea in the middle, which is that one of the purposes of each person having a right to keep and bear arms is to “hold in check” the government. That is some of what is meant by the right to keep and bear arms being necessary to a state in which freedom is secure.


4:55 pm on June 5, 2020