Militia Constitution

Andrew Fletcher, who survived a death sentence from James II and went on to help establish the new government, discussed the role of the armed citizen in A Discourse of Government with Relation to Militias (1698), where he said the constitution should put the sword into the hands of the subject. And I cannot see, why arms should be denied to any man who is not a slave, since they are the only true badges of liberty. i°... 

The Court sided with the State s argument. There is no constitutionally protected right to march as part of a private armed militia. The Second Amendment does not apply to the states. 

This decision gained some recent relevance with the formation of many private militias in the 1980s. Gun control advocates see Presser as denying any constitutional protection to such organizations, as well as reaffirming that the Second Amendment is not a bar to state or local gun regulations. 

The Bill of Rights to the U.S. Constitution is approved. It includes the Second Amendment, which guarantees the right to keep and bear arms to maintain a strong militia as a protector of liberty. 

Volokh, Eugene. The Commonplace Second Amendment. UCLA Law School. Available online. URL http //wwwl.law.ucla.edu/ volokh/ common.htm. Posted in 1998. Argues that the unusual structure of the Second Amendment (with its introductory clause about the militia) was actually a quite common construction in contemporary American constitutions. A change in the conditions used to justify a right does not imply that the right will expire. 

A duly interposed demurrer alleged The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution— A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed. ... 

Joseph Story, Commentaries on the Constitution of the United States 708-709 (Carolina Academic Press 1987) (1833) (emphasis added). Justice Story calls the right of citizens to keep and bear arms the palladium of our liberties. He viewed the private ownership of firearms as reducing the need for the maintenance of large standing armies by promoting the vitality of the militia, and laments that militia participation is on the decline, fearing this will result in fewer Americans being armed. 

Coxe, Teneh (1755—1824) was a Pennsylvania lawyer and merehant. After the Declaration of Independence made the war official, he resigned from the Pennsylvania militia and joined the British army. Captured by American forces, he was paroled and joined the patriot side. He was a delegate to the 1786 Annapolis Convention and, under the pseudonyms A Freeman and An American Citizen, wrote pamphlets in support of the new constitution. He served under President Washington as Assistant Secretaiy of the Treasury and shortly thereafter as Commissioner of Revenue until removed from office by President John Adams in 1797. Coxe became an ardent Republican and a friend and ally of Jefferson and Madison, serving in the administrations of both from 1803 until 1812. 

---