Militia Second Amendment

Ever since then, gun control advocates have argued that the Second Amendment thus applies only to bearing arms as part of an organized militia, which today is the National Guard ... 

The State made the usual argument that the Second Amendment was not applicable to the states. It also argued that the prohibition of private militias was not in conflict with the power of Congress to oversee the organization of state militias. 

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. 

This view of the state constimtional provision is close to the viewpoint of most modern gun control advocates with regard to the Second Amendment Only the right of the state to form and operate a militia is protected the legislature is free to regulate or even prohibit the individual carrying of weapons. Certainly few people would assert that anyone has the right to carry a weapon while drunk. 

This short, rather cryptic decision has been interpreted in two different ways in the continuing debate over the meaning of the Second Amendment. Gun control advocates cite it as clearly stating that the Second Amendment must be interpreted in terms of the militia clause and does not give individuals the right to keep and bear any sort of firearm they want. 

The defendant argued that because the weapon was a military weapon and he was a member of the sedentary (or reserve) state militia, he was entitled under the Second Amendment to have it, as implied by the Supreme Court rejecting the shotgun in U.S. v. Miller as not being a military weapon. 

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. 

In U.S. V. Miller the Supreme Court rejects an appeal by stating that it had been given no evidence that a sawed-off shotgun was suitable for use in a militia, and because it is not, carrying it would not be protected by the Second Amendment. Because the decision also implied an individual right to bear military-type arms, it would be cited by both supporters and opponents of gun control. 

Barnett, Randy E. Guns, Militias, and Oklahoma City. Tennessee Law Review, vol. 62, Spring 1995, pp. 443ff. Explores the emergence of the militia movement and its social and cultural roots. Suggests that one source of the movement is frustration with the refusal of the courts to enforce the Second Amendment. 

Ehrman, Keith A., and Dennis A. Henigan. The Second Amendment in the Twentieth Century Have You Seen Your Militia Lately University of Dayton Law Review, vol. 15, 1989, pp. 5-58. Argues that the Second Amendment guarantees an individual right to keep and bear arms only to the extent it is necessary for the maintenance of an effective militia. Because the federally directed National Guard has replaced the old state militias, it is no longer necessary for private individuals to have firearms, and there is no obstacle to prohibiting them. 

Sprigman, Chris. This Is Not a Well-Regulated Militia. Open Forum, Winter 1994, n.p. Reviews Supreme Court cases and concludes that the Court has interpreted the Second Amendment as protecting state militias, not as an individual right to bear arms. Sprigman cites United States V. Miller (1939) and argues that the militia concept is probably not relevant to modern America. 

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. 

Halbrook, Stephen P. Target Switzerland Swiss Armed Neutrality in World War II. Rockville Centre, N.Y. Sarpedon, 1998. Argues that Switzerland s armed neutrality during World War II was made possible by its decentralized federal system and its unique system of citizen soldier militia. Although the book does not focus on gun rights, the relationship of the Swiss system to the U.S. Second Amendment and collective self-defense makes this book relevant to the gun debate. 

Federal 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. (Second Amendment)... 

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon. 26 F. Supp. 1002, reversed. 

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. ... 

In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals rather, it merely recognizes the right of a state to arm its militia. This states rights or collective rights interpretation of the Second Amendment has been embraced by several of our sister circuits. The government commended the states rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens. 

The government s brief thereafter makes essentially two legal arguments. First, it contends that the right secured by the Second Amendment is only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state. Id. at 15. This, in essence, is the sophisticated collective rights model. 

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. Id. at 818. 

These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old... 

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