Last Updated on January 4, 2022 by Constitutional Militia
Militia: Not in Any Sense Private Associations
The original Constitution refers to “the Militia of the several States”[1], not “the Militia in the several States”. This is because the Militia which existed at the time of ratification of the Constitution, and for many decades prior thereto in the Colonies and then the independent States—“settled” and “regulated”, were Colonial and State governmental institutions, not private establishments. Self-evidently, the Militia—howsoever they may have been “regulated” as a matter of fact—were “regulated” as a matter of law by government, not by private individuals, because they were integral parts of the governments in all of the States and Colonies, not mere private associations. Because the original Constitution intends these institutions to continue as permanent parts of its federal system—an intention which the Second Amendment does not negate, challenge, or question—“the Militia of the several States” today are, in terms of their governmental character, the same as “the Militia of the several States” in the late 1700s. So the “regulation” of “the Militia of the several States” today must be just as governmental in nature as was the “regulation” of “the Militia of the several States”, and of the Colonies which preceded them, throughout the 1700s and much of the 1600s. Certainly no basis exists for contending that each of “the Militia of the several States” at the time of ratification of the Constitution (1788) was ever considered by anyone—with respect to any of its characteristics, including its governmental nature—to be other than “[a] well regulated Militia” as the Second Amendment was understood at the time of its ratification (1791).
The original Constitution delegates to Congress the powers “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”[2]; “[t]o provide for organizing, arming, and disciplining, the Militia”[3]; and “[t]o provide * * * for governing such Part of the[ Militia] as may be employed in the Service of the United States”.[4] Self-evidently, these are powers of “regulation”. Combining the Second Amendment with the original Constitution compels the conclusion that “[a] well regulated Militia” is one which Congress “regulates” in the foregoing manner for the foregoing purposes. Congress, of course, is the body within the General Government in which the original Constitution “vest[s]” “[a]ll [of the] legislative Powers”[5] it grants. Therefore, Congress’s exercise of its powers related to the Militia constitutes obviously and inescapably governmental “regulation” of the Militia.
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.[6]
True constitutional “Militia” are governmental establishments of the several States, “well regulated” by statutes according to certain definite constitutional principles. In contrast, being the products of purely private action, no “private militias” can claim any governmental, let alone specifically constitutional, authority. And without such authority no “private militias” can assert the constitutional right, power, and duty to execute the laws of the Union and of the several States in a “martial” fashion against usurpers and tyrants who attempt to inflict “martial law” upon Americans anywhere within this country.
