If the Second Amendment protects an individual right of the people that shall not be infringed, who or what is the militia and how is it to be well-regulated?

The Founding generation understood that large standing armies were dangerous threats to liberty, especially when controlled by authoritarian governments who sought to disarm the general population. The militia system, with deep roots in English history, was one way of ensuring that the nation could defend itself against all threats, foreign and domestic. Instead of a large full-time professional army, the government could, when needed, call upon the greater body of armed citizens to employ their personal firearms in the collective defense of the state or nation. A “well-regulated” militia simply meant that the processes for activating, training, and deploying the militia in official service should be efficient and orderly, and that the militia itself should be capable of competently executing battlefield operations.

While every individual who compromises the “people” of the United States has a right to keep and bear arms, as a practical and legal matter, not every member of the “people” is necessarily eligible for militia service. Nevertheless, the broader right to keep and bear arms enables the maintenance of a well-regulated militia by ensuring that the body of citizens from whom the militia must be drawn is armed and experienced in the use of those arms. Moreover, the larger body of a people who are both numerous and armed stand as a check against any attempt by the government to form “select militias” or neglect the training or activating of the militia altogether.

Where is the militia today? Despite a common suggestion that the militia exists today only in the form of the National Guard, the modern militia exists today in the same place it did in 1791—in the body of the people trained to use firearms. Under federal law, the citizenry is divided into two subsets: the “organized militia,” composed of the National Guard, and the “unorganized militia,” composed of all able-bodied males between the ages of 17 and 45. Every state has statutes that, in a similar manner, either explicitly or implicitly divide its militia into an “organized” and “unorganized” component, with the unorganized militia being drawn far more broadly from the greater body of the people.

This is consistent with Federalist No. 29 (one of the 85 essays collectively known as The Federalist Papers that were published by Alexander Hamilton, James Madison, and John Jay advocating ratification of the Constitution), in which Alexander Hamilton recognized the practical importance of forming a “select corps” of professionalized militia because “the project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.”¹⁰ The existence of this “select corps” would be the “best possible security against (a large standing army), should it exist,” because there would be “a large body of citizens, little, if at all, inferior (to the standing army) in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”¹¹

And yet, Hamilton simultaneously recognized the importance of ensuring that the “people at large” are “properly armed and equipped,” in tandem with any professionalized corps of citizen-soldiers.¹² Indeed, Hamilton’s contemporary Richard Henry Lee repeatedly warned against the dangers of over-reliance on what we today call the organized militia, which “will ever produce an inattention to the general [unorganized] militia.”¹³ He aptly reminds us centuries later of the proper relationship between an armed people and the militia: “A militia, when properly formed, are in fact the people themselves….[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”¹⁴

ENDNOTES:

9. Josiah Quincy, Jr., Observations On The Act Of Parliament Commonly Called The Boston Port-Bill; With Thoughts On Civil Society And Standing Armies (May 14, 1774), Https://Quod.lib.umich.edu/E/Evans/N10697.0001.001?Rgn=Main;View=Fulltext.
10. The Federalist No. 29 (Hamilton), Https://Avalon.law.yale.edu/18th_century/Fed29.Asp.
11. Id.
12. Id.
13. Federal Farmer No. 23 (Lee), Https://Teachingamericanhistory.org/Document/Federal-Farmer-Xviii/
14. Federal Farmer No. 23 (Lee), Https://Teachingamericanhistory.org/Document/Federal-Farmer-Xviii/