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2nd Amendment: “Individual Right Only” Theory is Wrong

The theory that “the individual right” to personal self-defense lies at the heart of the Second Amendment is plainly wrong.

No matter how many jurists and intellectuals may embrace it, the theory that “the individual right” to personal self-defense lies at the heart of the Second Amendment is plainly wrong. This is not to say that the Amendment, correctly construed, does not effectively ensure for almost all individuals a right of personal self-defense with firearms. It does, but (in most cases) with every kind of firearm that is in any way suitable for any type of Militia service, not just handguns kept in one’s home. Moreover, it guarantees for almost all individuals various rights to employ firearms for purposes far beyond the narrow confines of their own personal self-defense at home.

Each individual enjoys “the right * * * to keep and bear [his own] Arms”,[1] not simply so that he can defend himself, but so that all individuals can act in concert in “well regulated Militia” to preserve their communities as “free State[s]”.[2] Thus, nothing could be more erroneous—and even destructive of the purpose of the Second Amendment as well as the Militia Clauses of the original Constitution—than the notions that not only does “the right of the people to keep and bear Arms” embrace an “individual right to possess and carry weapons in case of confrontation”, “having nothing whatever to do with service in a militia”, but also individual self-defense is “the central component of the right itself”.[3]

Thus, at least insofar as it is made to rest upon the right of personal self-defense, the supposed “individual right” to possess firearms is the spawn of confusion. Worse yet, it is the source of delusion as to what actually needs to be done to enforce the Second Amendment. For, notwithstanding that all too many naive patriots believe it to be correct, and even though it may provide some protection for “the right of the people to keep and bear Arms” in isolated instances, at base the notion that the Amendment primarily concerns itself with only an “individual right” is part and parcel of the strategy America’s enemies are employing in order so to befuddle “the people” that they will not seek to organize themselves in the one and only way the Constitution itself tells them is “necessary to the security of a free State”.

Lexington Green does not merely recall an historic event. More importantly, it also teaches a profound lesson in the philosophy and practice of popular self-government. The Minutemen were no happenstance bunch of individuals some of whom accidentally gravitated to Lexington Green and the North Bridge on the 19th of April in 1775. They were no mere crowd of farmers, artisans, and tradesmen who stumbled together with no coherence, no general self-consciousness, no collective purpose or resolve.

To the contrary: They were members of an organization which included all free adult able-bodied men throughout Massachusetts, with like organizations in each of the other twelve American Colonies. An organization which had existed in Massachusetts herself for almost 150 years. An organization with legal—indeed, governmental—authority: The Militia of Massachusetts.

And they assembled there, not to break the law, but to witness to it, to defend it, and if possible to enforce it against British troops who were, they rightly believed, breaking the laws of Massachusetts, abridging the Colonists’ rights as Englishmen, and flouting what the Declaration of Independence later called “the Laws of Nature and of Nature’s God”.

At Lexington, the Militiamen did not at first intend to fight—they meant only to demonstrate their disapproval of the incursion into their town by General Gage’s troops, to embody in their own persons on the green their legal authority, and to present a living remonstrance through a muster of physical—but even more importantly, of legal and moral—strength, rather than an act of outright forcible resistance.

As Pastor Jonas Clark wrote in The Battle of Lexington: An Eyewitness Narrative of That Day, the Militia of Lexington was alarmed and ordered to meet on the usual place of parade; not with any design of commencing hostilities upon the king’s troops, but to consult what might be done for our own and the people’s safety: And also to be ready for whatever service providence might call us out to upon this alarming occasion, in case overt acts of violence or open hostilities should be committed by the British. So, recalled Reverend Parker,

alarm guns were fired and the drums beat to arms; and the militia was collecting together. Some, to the number of about 50 or 60, or possibly more, were on the parade, others were coming toward it. In the meantime, the [British] troops, having * * * stolen a march upon us * * * , seemed to come determined for MURDER and BLOODSHED; and that whether provoked to it, or not! When within about half a quarter of a mile of the meetinghouse, they halted and the command was given to prime and load; which, being done, they marched on ’till they came * * * in sight of our militia * * * . Immediately upon their appearing so suddenly and so nigh, Capt. [John] Parker, who commanded the militia company, ordered the men to disperse and take care of themselves, and not to fire. Upon this, our men dispersed; but many of them, not so speedily as they might have done, not having the most distant idea of such brutal barbarity and more than savage CRUELTY from the troops of a British KING as they immediately experienced! For no sooner did they come in sight of our company, but one of them, supposed to be an officer of rank, was heard to say to the troops, “Damn them; we will have them!” Upon which the troops shouted aloud, huzza’d, and rushed furiously towards our men. About the same time, three officers * * * advanced on horseback to the front of the body and * * * one of them cried out, “Ye villains, ye Rebels, disperse; damn you, disperse!” or words to that effect. One of them * * * said “Lay down your arms; damn you, why don’t you lay down your arms!” The second of these officers about this time fired a pistol towards the militia as it was dispersing. The foremost, who was in a few yards of our men, brandishing his sword and then pointing it towards them, with a loud voice said to the troops, “Fire! By God, fire!” which was instantly followed by a discharge of arms from the said troops, succeeded by a very heavy and close fire upon our party, dispersing, so long as any of them were within reach. Eight were left dead upon the ground! Ten were wounded. The rest of the company, through divine goodness, were (to a miracle) preserved unhurt in this murderous action!

We learn from this account that, pursuant to orders, Lexington’s Militiamen were in fact dispersing when the British opened fire on them. Dispersing, but not laying down their arms. They knew that, by themselves alone, they could not effectively resist the overwhelming force the British had amassed against them in the field. Nevertheless, they refused to surrender their legal and moral authority. And later, they—along with Militiamen from Concord and other towns throughout the surrounding area—combined that authority with sufficient force, and drove the British back into Boston.

When thousands of Militiamen appeared outside of Boston, Massachusetts, on 19 April 1775, were they acting solely in pursuance of an “individual right”? Did “the embattled farmers” fight only as individuals? Were they just a lawless mob? Was their victory at the Battle of Lexington and Concord the lucky result of martial anarchy? Of course not.

Very few “civilians” (in the purest sense of that term) were involved on that fateful day. Most of the men who mustered were members of Militia companies that had been training assiduously for some time theretofore. (And the ones who were not, because they were too old to be required to serve, but who fought anyway, had been members of the Militia when young.) Had not that been the case, the Militia would never have been able to assemble so many men, on such short notice, from beyond Concord all along the road back to Boston.

Neither did “the embattled farmers” fight merely as individuals. They may have employed the tactics of irregulars—neither maneuvering in parade-ground formations nor presenting a concentrated target to their enemies—but they always operated in set units, typically Militia companies, which averaged about 50 men apiece when at full complement. The Militiamen’s success was based upon

organization—being called out in a systematic fashion by riders, bells, or the firing of shots;
equipment—being adequately armed and accoutred; training— knowing what to do, under their designated officers; morale— being psychologically ready and confident; and especially
authority—knowing that they had the legal right, power, and duty to take action, because British General Thomas Gage, and the Ministerial Government behind him, were the usurpers and law-breakers.

Particularly revealing is the background to Lexington and Concord. Gage’s descent on Concord was only his last misstep in a series of oppressive maneuvers. Disarming the Militia by means of the seizure of their

[g]unpowder was undoubtedly on Gage’s mind when he began sending his troops on marches in the [Massachusetts] countryside early in 1775. * * * Each march also tested the provincial warning system. Gage hoped that if five or six alerts turned out to be false alarms—the regulars were just marching along molesting neither persons nor property—the minutemen might grow weary or careless about responding.

Instead of growing weary, the Americans turned out in force every time the British appeared outside Boston. They saw these confrontations in different terms. When the British turned back, the minutemen were convinced they had done so because they had lost their nerve.[1]

After the battle of Lexington and Concord, though,

[Lord] Percy[, one of Gage’s best officers,] recognized, with the eye of an intelligent soldier, one of the least understood realities of April 19th. The Americans who responded to the British challenge were not a mass of disorganized individuals; they were a well-supplied rudimentary army which had been organizing and training for 6 months. They were in a state of battle readiness, much better prepared to fight than the British soldiers who marched out of Boston. A heavy proportion of the American officers were veterans who knew how to lead men into battle. Their training and the knowledge that they outnumbered the British five to one (even counting all the men Gage had in Boston) added to the confidence with which they responded to the alarm when the fighting began. In short, April 19th was a victory of preparedness. It was not the product of spontaneous enthusiasm. The militiamen of Massachusetts knew their strength, and, more important, they knew they had the ability to use that strength effectively.[2]

Footnotes:

1.) Thomas Fleming, The First Stroke: Lexington, Concord, and the beginning of the American Revolution (Washington, D.C.: National Park Service, United States Department of the Interior, 1978), at 35.

2.) Id., at 92-93.

The right of individual self-defense is not mentioned in the original Constitution or in the Second Amendment—because it did not have to be. Self-defense is a foundational right. Everything else in America’s legal system builds upon it. It precedes the institution of government. Finding its basis directly in “the Laws of Nature and of Nature’s God”—in service to and conformity with which proper “Governments are instituted among Men, deriving their just powers from the consent of the governed”[1]—the right of personal self-defense does not depend upon the existence of “a free State” in particular, or even of any “government” in general. It does not depend upon the existence of a Militia, “well regulated” or not. And it does not depend upon any “right to keep and bear arms” specifically enumerated in some constitution or statute. Moreover, as Blackstone emphasized,

“[s]elf-defence * * * , as it is justly called the primary law of nature, * * * is not, neither can it be in fact, taken away by the law of society”.[2]

As a matter of fact, exercise of the right of personal self-defense does not depend upon one’s possession of a firearm. If an individual does have a “right * * * to keep and bear Arms” for any purpose, and in reliance on that right has happened to obtain a firearm, and has it at hand, then of course he is capable of defending himself with it when the occasion arises. Yet, if that same individual has no “right * * * to keep and bear Arms”, and therefore finds himself without a firearm when danger threatens, he is still capable of defending himself with some other implement—or even with his bare hands, feet, and teeth. Thus, the exercise of the right of personal self-defense has no logically or existentially necessary connection with “the right * * * to keep and bear Arms”. Banning the right of personal self-defense might provide a rationale for outlawing the possession of firearms. But banning the possession of firearms would not in and of itself deny anyone the right to defend himself.

For example, throughout American history slaves were generally denied any right to possess firearms, except under the most stringent controls. As Blackstone observed,

[t]wo precautions are * * * advised to be observed in all prudent and free governments: 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen.[3]

Footnotes:

1.) Declaration of Independence.

2.) Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 3, at 4.

3.) Id., Volume 1, at 416.

As with all half-baked ideas, the mental oven from which the “individual right” only theory emerged contains some crumbs of legal substance. Of course the possession of “Arms” suitable for collective service in “[a] well regulated Militia” also provides each individual with the means to defend himself personally. So, of course “the right * * * to keep and bear Arms” is instrumental for both an individual and a collective purpose. But this is only part of the recipe that must be consulted. The important ingredient is the insight that a right and even a duty “to keep and bear Arms” solely for the individual purpose of personal self-defense could never guarantee, and would not even go very far towards, fulfillment of the collective purposes of fielding “[a] well regulated Militia” and thereby guaranteeing “the security of a free State” through community self-defense. Worse yet, a “right * * * to keep and bear Arms” for the purpose of individual self-defense “having nothing whatever to do with service in a militia” would in principle preclude a “right of the people to keep and bear Arms” for community self-defense. For, if an individual may be called upon to protect his community at the cost of his own life, then whatever “right * * * to keep and bear Arms” he may enjoy for purposes of personal self-defense must be subordinate to his duty “to keep and bear Arms” in order to participate in collective self-defense. Whereas, if an individual’s “right * * * to keep and bear Arms” “ha[s] nothing whatever to do with service in a militia”, then the duty of community self-defense through “[a] well regulated Militia” must be subordinate to the right of personal self-defense—which necessarily would mean that the clause “[a] well regulated Militia, being necessary to the security of a free State” has no operative effect (that is, no legal consequence), but amounts merely to some sort of vapid constitutional “window dressing”. Not only would this conclusion contradict the rule that, “‘[i]n expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added’”,[1] but also it would make an indigestible historical, political, and philosophical hash out of the Second Amendment, the Militia Clauses of the original Constitution, and even the Declaration of Independence.

Thus, the essence of the Militia—and of all the rights, powers, privileges, immunities, and especially duties pertaining to the Militia, including “the right of the people to keep and bear Arms”—derives from the people’s collective right of self-defense, to which each individual’s personal right of self-defense necessarily contributes, but is not superior.

Footnotes:

1.) Williams v. United States, 289 U.S. 553, 572-573 (1933), quoting Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-571 (1840) (opinion of Taney, C.J.). Accord, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). See also Griswold v. Connecticut, 381 U.S. 479, 490-491 (1965); Myers v. United States, 272 U.S. 52, 151-152 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-261 (1898).

The contemporary “individual right” “to keep and bear Arms” concerns itself entirely with the needs and actions of individuals as such, not with “well regulated Militia”. Ordinary Americans’ exercise of the ”individual right” does not establish “[a] well regulated Militia”, or secure its existence, or aid in its operations. Indeed, proponents of “the individual right” turn logical and linguistic somersaults in their bootless attempts to prove that, notwithstanding the actual wording of the Second Amendment, “the individual right” has nothing whatsoever to do with the Militia.

Moreover, Americans who exercise merely “the individual right” cannot fulfill any of the responsibilities assigned to the Militia. Article I, Section 8, Clause 15 of the Constitution empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. But—

    • People exercising “the individual right” in isolation or ad hoc groups can neither “repel Invasions” by foreign nations capable of invading the United States, nor “suppress Insurrections” on any scale worthy of that name. For such people can draw on no collective organization, training, discipline, governance, or extensive logistical support equal to those tasks.
    • Being burdened with similar deficiencies which prevent them from functioning as competent law-enforcement officers, people exercising merely “the individual right” are incapable in fact of “execut[ing] the Laws of the Union” (or of their own States, either). Of even more consequence, mere individuals have no governmental authority to execute any laws other than those few encompassed within the law of personal self-defense.

As with any other statute, the Constitution must be read as an entirety, consistently interrelating all of its provisions.[1] The selfsame mode of construction applies to the Second Amendment. For all parts of the same law “must be read in relation to each other”,[2] and “reconciled so as to produce a symmetrical whole”.[3] All other things being equal, “identical words used in different parts of the same act are intended to have the same meaning”.[4] So “[w]hen the same term which has been used” in one clause of the Constitution is used in another, “it must be understood as retaining the sense originally given to it”.[5] Therefore, when the Constitution first empowers Congress “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”,[6] “the Militia” and “them” must refer to “the Militia” in the Constitution’s next relevant clause:namely, “the Militia of the several States”, of which Militia the President “shall be Commander in Chief * * * when [they are] called into the actual Service of the United States”.[7] And these “Militia of the several States” must be the very same “well regulated Militia * * * necessary to the security of a free State” of which the Second Amendment then speaks, if only because each and every State in the Union—that is, “the several States”, as the Constitution always describes them collectively[8]—must be taken to be “a free State” within the Amendment’s understanding of that term. So, “the Militia of the several States” that Congress is empowered “[t]o provide for organizing, arming, and disciplining” must also be understood as consisting of “the people” as a whole in each of those States. Furthermore, “the people” with respect to whom the Second Amendment commands that “the right * * * to keep and bear Arms, shall not be infringed” must be the largely selfsame “WE THE PEOPLE” who “do ordain and establish this Constitution for the United States of America”.[9] For nothing in the Constitution or any of its Amendments identifies any other “people” as entitled to any rights, powers, privileges, or immunities.[10] And the “Arms” to which “the right of the people” pertains must be the “Arms” necessary for them to serve in “well regulated Militia”, which must be the very same “Arms” (at least in the general terms of purpose, type, and quality) with which Congress is “[t]o provide for * * * arming * * * the Militia”.

S & S p. 79-80

Footnotes:

1.) See Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 332 (1964); United States v. Wong Kim Ark, 169 U.S. 649, 653-654 (1898); Cherokee Intermarriage Cases, 203 U.S. 76, 89 (1906); Talbott v. Silver Bow County, 139 U.S. 438, 443-444 (1891); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).

2.) United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 222 (1952).

3.) Federal Power Commission v. Panhandle Eastern Pipe Line Company, 337 U.S. 498, 514 & n.21 (1949). Accord, e.g., Richards v. United States, 369 U.S. 1, 11 (1962).

4.) Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Accord, e.g., Commissioner of Internal Revenue v. Lundy, 516 U.S. 235, 249-250 (1996); Gustafson v. Alloyd Company, Inc., 513 U.S. 561, 569-570 (1995); Ratzlaf v. United States, 510 U.S. 135, 143 (1994); Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 342 (1994); Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509 U.S. 209, 230 (1993); Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993); Estate of Cowart v. Nicklos Drilling Company, 505 U.S. 469, 479 (1992); Sullivan v. Stroop, 496 U.S. 478, 484 (1990); Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860 (1986); Morrison-Knudson Construction Company v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624, 633 (1983). Of course, this rule is only presumptive, not absolute. Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86-87 (1934); Atlantic Cleaners & Dyers, 286 U.S. at 433-434.

5.) Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 453 (1805).

6.) U.S. Const. art. I, § 8, cl. 16.

7.) U.S. Const. art. II, § 2, cl. 1.

8.) See U.S. Const. art. I, § 2, cls. 1 and 3, and § 8, cl. 3; art. II, § 2, cl. 1; art. IV, § 2, cl. 1; art. V; art. VI, cl. 3.

9.) U.S. Const. preamble.

10.) See U.S. Const. amends. I, IV, IX, and X.

The inescapable fact is that whatever “individual right” “to keep and bear Arms” emerges from the Heller case (or any case for that matter) will not provide “the security of a free State” at which the Second Amendment aims. True, tens and tens of millions of Americans possess firearms and ammunition; and perhaps large numbers of these firearms are suitable for Militia service. But the armed individual, simply as an individual, is not enough.

All too many individual gun owners are not even aware of each other. Although some are members of firearms ranges or gun clubs, hardly any if them are organized for anything akin to Militia purposes. They are not members of specific units. They have no designated leaders. They lack systems for communications within or among units, or among individuals for that matter. (Where, for example, is the gun-owners’ equivalent of a “Neighborhood Watch” against local usurpation and tyranny?) Even within their own neighborhoods, among families and friends, they make no attempts to insure uniformity or completeness of equipment. They lack sufficient, and often necessary, education and training. They have prepared no plans to deal with various contingencies, let alone have assigned tasks to be carried out in anticipated emergencies. More crucially, they do not understand their constitutional status, purpose, and especially authority. Many, if not most, of them have no idea what they would be defending with their “individual rights” “to keep and bear Arms”—other than, perhaps, simply maintaining possession of their own firearms for purposes of possible self-defense. So, absent direct attacks on their own persons, how many gun owners today, anywhere, no matter how serious the crisis confronting the rest of society around them, would exercise their “individual rights”? Or could effectively do so? And to what end?

In the “well regulated” form which the Constitution requires, “the Militia of the several States” are nowhere to be found in America today:

    • The National Guard and the Naval Militia in which some Americans are enrolled are not “militia” of any sort. Rather, they are the “Troops, or Ships of War” which the States may “keep * * * in time of Peace” “with[ ] the Consent of Congress”, pursuant to Article I, Section 10, Clause 3 of the Constitution. This (among other things) explains why they are not based upon near-universal compulsory membership, and why they can be called upon to perform services for the United States beyond the three specified in Article I, Section 8, Clause 15 for which alone Congress may “provide for calling forth the Militia”.
    • The so-called “unorganized militia” to which most Americans are consigned by statute—in 10 U.S.C. § 311(b)(2) and, for example, Code of Virginia §§ 44-1 and 44-4—is no constitutional Militia, either. For no part of any constitutional Militia can be “unorganized”. Indeed, Article I, Section 8, Clause 16 of the Constitution of the United States empowers Congress “[t]o provide for organizing, arming, and disciplining, the Militia”—not for leaving the Militia “unorganiz[ed]”. And Article I, Section 13 of the Constitution of Virginia defines “a well regulated militia” as being “composed of the body of the people, trained to arms”—which, plainly enough, an “unorganized” Militia can never be, unless “the people” can somehow be “trained to arms” without being organized to that end.
    • Finally, the various “private militia” which have sprung up across this country (including * * * in Virginia) in recent years are not constitutional Militia, because they are not “regulated” at all pursuant to statute, and therefore cannot claim (let alone assert) any specifically governmental authority. Under the First Amendment, they may adopt the title “militia” with as much freedom as they may style themselves “the Palace Guard of the Grand Duchess of Gerolstein”. But in either case the self-description is fanciful; and as far as the description “militia” is concerned, it is feckless for the purpose for which they put it forth. This is a truly impossible situation for a country which, in its fundamental law, holds up “[a] well regulated Militia” as “being necessary to the security of a free State”. The notion that “private militia” could provide “the security of a free State” is delusive, because “private militia” can exist only in, and themselves require protection by, “a free State”. The notion that the States’ “Troops, or Ships of War” could provide “the security of a free State” is dangerous, because “a free State” must always closely control a “standing army”, which it can hardly expect to do if “the standing army” is the sole source of its “security”. And the notion that an “unorganized militia” could provide “the security of a free State” is disastrous, because an “unorganized militia” is effectively not in existence at all, and therefore cannot possibly supply what is “necessary” for anyone’s “security”. So, confronted by numerous dire threats, from international “terrorism” to domestic economic collapse, our country risks not simply a nationwide crisis, but even a national débâcle, should this situation fail to be corrected immediately, if not sooner.

The first thirteen words of the Second Amendment—“[a] well regulated Militia, being necessary to the security of a free State”—constitute more than a merely hortatory pronouncement, hoary with the dust of a bygone era, that today has no practical relevance to the Amendment’s last fourteen words. Rather, those words constitute:

(i) a finding of historical fact—to wit, that Americans secured “a free State” for themselves by virtue of their organization in “well regulated Militia”;

(ii) a conclusion of constitutional law—to wit, that such Militia must always exist within every State in the Union, just as Article I, Section 8, Clause 15 and 16 and Article II, Section 2, Clause 1 of the Constitution presume that they will; and

(iii) an admonition which the Founders of this country drew from both political theory and their own experiences—to wit, that “a free State” cannot long exist anywhere within this country without “well regulated Militia” everywhere throughout this country.

1.) U.S. Const. amend. II.

2.) Id.

3.) District of Columbia v. Heller, 554 U.S. 570, 592, 593, 599 (2008) (Scalia, J., for the Court).

4.) 2.) Id., at 1.

Constitutional Militia
Constitutional Militiahttps://constitutionalmilitia.org
Constitutional Militia are State government institutions, thoroughly civilian in character. It is by the efforts of "the Militia of the several States", that the "security of a free State" can be preserved throughout the Union.
Militia Structure

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