A Serious Question for the NRA

As regular readers of my commentaries know, from time to time I have written about the National Rifle Association’s curious misreading of the Second Amendment—to wit, that the Amendment’s first thirteen words (“[a] well regulated Militia, being necessary to the security of a free State”) have no significance with respect to the interpretation and application of the Amendment’s last fourteen words (“the right of the people to keep and bear Arms, shall not be infringed”). According to the NRA, the Second Amendment secures “the individual right to keep and bear arms”, to which “[a] well regulated Militia” is irrelevant.

I must describe the NRA’s fixation as a most curious misreading of the Second Amendment because, if “the individual right to keep and bear arms” is irrelevant to “[a] well regulated Militia”, then by dint of the NRA’s own linguistic logic “the individual right to keep and bear arms” must be equally irrelevant to “the security of a free State” to which the Amendment declares that such a Militia is “necessary”. If so, then the NRA’s reading of the Amendment is at odds with its contention that “the individual right to keep and bear arms” guarantees Americans the wherewithal to preserve “the Blessings of Liberty” promised by the Constitution in its Preamble. For, if “the individual right to keep and bear arms” is as irrelevant to “the security of a free State” as it supposedly is to “[a] well regulated Militia”, it passes understanding that it could guarantee any aspect of “a free State”, including especially the “Liberty” of that State’s citizens.

This apparent conundrum is, of course, not the product of the Constitution. For, according to the most basic rules of constitutional interpretation, the NRA’s construction of the Second Amendment is impossible. In general, “[i]t cannot be presumed, that any clause in the constitution is intended to be without effect”. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And “[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”. Holmes v. Jennison, 39 U.S. (14 Peters) 550, 570-571 (1840). Moreover, with respect in particular to the clause “[a] well regulated Militia, being necessary to the security of a free State”, “[i]t cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appreciate its plain significance”. Wright v. United States, 302 U.S. 583, 587-588 (1938). See also, e.g., 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); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).

My emphasis on this peculiar situation is not simply a matter of constitutional pedantry devoid of practical consequences. For, by widely disseminating its misreading of the Second Amendment among the general public, the NRA lends credibility to a most dangerous misconception—to wit, that Americans can secure for themselves “the Blessings of Liberty” by purely individual actions alone, when every page in the book of American political and legal theory and history teaches that popular sovereignty, popular self-government, and the “Blessings of Liberty” that go with them necessarily entail, and can be achieved and maintained only through, collective endeavors by WE THE PEOPLE as a whole. No one who studies America’s Colonial Charters, the Declaration of Independence, the constitutions of the independent States, the Articles of Confederation, the original Constitution, and even the Second Amendment can come to any other conclusion.

I have tried, on more than one occasion, to call this matter to the attention of the NRA, for the purpose of encouraging the organization to reassess its position and become a proponent of revitalization of “the Militia of the several States”, as the only sure and certain means to provide for “the security of a free State” throughout this country. To date, however, these efforts have proven unsuccessful.

Perhaps my failures are exclusively my fault. But, then again, perhaps not. Inasmuch as my own estimation of cause and effect might be considered biased, I shall put it to my readers to judge for themselves. Below, I reproduce (with some minor redactions) a letter which I wrote several months ago to certain members of the NRA’s Board of Directors, explaining why the NRA should promote revitalization of the Militia, and soliciting their support to that end. To date, I have received not a single response. The question which perplexes me is, “Why not?” Is revitalization of the Militia a matter which is not to be taken seriously? Or am I, personally, not to be taken seriously? Or is the NRA’s championship of the Second Amendment not to be taken seriously?

It may be that some of the readers of this commentary will conclude that what I have recommended in the letter reproduced below makes sense, and that the NRA should pay some little attention to it. If so, they might consider contacting the NRA, and asking “Why not?” At some point, an answer needs to be had.

[LETTER TO NRA DIRECTORS] 25 January 2016

National Rifle Association Directors * * * c/o NRA Office of the Secretary
11250 Waples Mill Road
Fairfax, Virginia 22030

Re: The NRA’s necessary rôle in revitalization of “the Militia of the several States”

I have undertaken these efforts neither for my own entertainment nor with any realistic hope of financial gain from a lucrative publishing enterprise. Instead, my goal has been simply to elucidate the truth of the matter, to educate my fellow countrymen about it, to encourage them to become personally involved in the revitalization of “the Militia of the several States”, and to effect as much political and legislative movement in that direction within the States as possible as soon as possible—or, as I like to put it, immediately, if not sooner. I realize, however, that I cannot accomplish this goal simply by disseminating my work in “the free marketplace of ideas” without a significant measure of assistance from others better situated than I am to reach large numbers of Americans with this message. Therefore, this letter.

A. The revitalization of “the Militia of the several States” is critical for our country’s survival.

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.

In the “well regulated” form which the Constitution requires, however, “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.

B. For this country to survive in its traditional form, Americans must revitalize their Militia, because “well regulated Militia” are the “necessary”— indeed, the natural, the inevitable, and the indispensable—institutions through which the Power of the Sword is organized and employed for “the security of a free State”.

In any truly “free State”—that is, in any polity in which the people have absorbed the political principles of popular sovereignty, and therefore desire and strive to govern themselves—the people will instinctually, intuitively, and eventually intellectually recognize the importance of the Militia to that end. If incompetent or disloyal political leaders fail, neglect, or refuse to provide a program for establishment of the Militia according to law, patriots will undertake to make up for that deficiency on their own.

Unfortunately, just because the Militia are inevitable in principle does not guarantee that their advent will be timely in practice. Patriotic Americans may finally attempt to revitalize the Militia only when their efforts prove to be too little and too late. After all (as I can testify from personal experience), in the contemporary United States the few private individuals who and ad hoc groups which openly favor revitalization of the Militia along constitutional lines lack the numbers, the influence among the general public, and especially the financial wherewithal to hope to be successful in the very near term in even a single State. For part two click below.