Militias, Modern

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MILITIAS, MODERN

The mid-1990s have included the presence in American political life of paramilitary "militia movements" organized, by their lights, to serve as the first line of defense against the loss of basic constitutional freedoms. Their opponents altogether plausibly describe them as ultrachauvinistic, often racist, radical movements based largely in rural America and threatened by the modern bureaucratic state, general social developments within American society, and the implications of an increasingly globalized political economy. From this perspective, they are far more likely to be threats to, rather than defenders of, constitutional liberty.

What entitles these modern militias to a place in a book on the U.S. Constitution is their claim to be the entities protected by the very words of the second amendment : "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." That is, members of organized militias describe themselves as precisely those persons explicitly protected against federal (and, through the fourteenth amendment, state) regulation of the private possession of firearms.

Their opponents instead argue that the amendment's reference to "a well regulated Militia" limits any constitutional protection to an official militia organized and regulated by states themselves. The modern militia movement, on the other hand, has no ties with any formal government and therefore has no special constitutional protection.

An 1886 decision by the Supreme Court, Presser v. Illinois, offers some support for this view, inasmuch as it upheld an Illinois law prohibiting "any body of men whatever, other than the regular organized volunteer militia of the State, and the troops of the United States … to drill or parade with arms in any city, or town, of this State, without the license of the Governor thereof." The Court, however, also rejected the applicability of the Second Amendment to the states at all—this was well before the Court began "incorporating" the bill of rights against the states—so it is not dispositive as to the meaning of the amendment, though it would occasion great surprise if the modern Court were in fact to deviate from the Presserdoctrine. (A number of western states have adopted similar prohibitions of military training.)

Still, defenders of the legal rights of the modern militia movement would undoubtedly note that "militia," as an eighteenth-century term of art, referred to a group considerably broader than a discrete body of citizens organized into a state-regulated body. No less a worthy than George Mason, one of the primary advocates of a Bill of Rights—indeed, he refused to sign the Constitution because it lacked one—wrote "Who are the Militia? They consist now of the whole people." He was not alone in this view, and many discussants at the time distinguished the "general militia" from a "select militia." Given that one of the reasons to protect the right to bear arms was a profound fear of a corrupt state, they would scarcely have been happy with a definition of militia that protected only those deemed worthy by the state itself.

These arguments are scarcely frivolous, as an intellectual matter, but it is impossible, as a practical matter, to believe that mainstream legal analysts able to gain nomination and confirmation to the federal courts will be receptive to them. Instead, one can fairly confidently predict that the judiciary will be no more willing to interpret the Second Amendment in ways that would protect members of the militia movement than were judges to interpret the considerably clearer words of the first amendment in the 1950s to protect members of the Communist Party. Those viewed by the mass public as genuine security threats will rarely be protected by the judiciary, regardless of constitutional language.

Sanford Levinson
(2000)