"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."
Just one little sentence containing ambiguous (to put it kindly) grammar and punctuation. If only the founding fathers could have predicted that the most poorly written sentence in the Constitution would be the cause of so much heated debate to this day, perhaps they would have spent more time editing the Bill of Rights.
What did they have in mind when they left us this language? Did they intend to grant us an individual civil right or a collective right held by our state governments?
One of the main sticking points in modern analyses of the Second Amendment is what the founders intended by the phrase "well regulated Militia." I always assumed it meant a formal state police-type system, like the National Guard or the state patrol. Imagine my surprise when I learned there's a growing body of law suggesting that the founders may have had something quite different in mind.
Most courts to address this issue in the past (the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh circuits) held without much analysis that the "militia" includes only those persons called to some form of formal, active state police or paramilitary duty, and, thus, the Second Amendment grants only a collective or quasi-collective right to bear arms to the states. These courts relied primarily on the U.S. Supreme Court's cursory discussion in U.S. v. Miller,1 which held that a defendant's transport of a sawed-off shotgun could be regulated because such weapons had no use in a militia.
Recently, however, the Department of Justice has been advocating an individual rights theory, see http://www.usdoj.gov/olc/secondamendment2.htm, as have many defendants in cases across the country. There has been a proliferation of academic scholarship on the issue as well, with many prominent scholars now supporting this approach.
In 2001, the Fifth Circuit became the first of the federal courts of appeal to adopt an individual rights interpretation of the Second Amendment.2 The court noted that the Miller decision mentions several times that writings from around the time of the Constitutional Convention consistently indicated that the militia comprised "all males physically capable of acting in concert for the common defense" who were expected to bear their own personal weapons. The Emerson court concluded that the "militia" was a broad concept that included more than just those individuals called to participate in organized state defense units.
The court also noted that the Militia Act of 1792 (enacted one year after the Second Amendment - along with the rest of the Bill of Rights - was ratified) defined the militia broadly as "every free able-bodied white male" between 18 and 45 years of age, who was required to "provide himself with a good musket . . . or with a good rifle[.]" This basic provision is still reflected in our modern militia statute, which defines the militia of the United States as all able-bodied male citizens and would-be citizens between 17 and 45 years of age and females who belong to the National Guard, and divides it into an "organized" militia (those in the National Guard and Naval Militia) and an "unorganized" militia (consisting of every other militia member).3
In 2002, a panel of the Ninth Circuit considered whether California's Assault Weapons Control Act was a permissible restriction on the right to bear arms, and, following Miller, concluded that it was.4 Several judges dissented from denial of rehearing en banc.5
Judge Kleinfeld remarked that the 1792 Militia Act required all men to not only arm themselves with their own weapons but to provide a detailed array of ammunition and accessories, which were considered so critical for each man to own that they were exempted from seizure by creditors. Based on this requirement, Judge Kleinfeld concluded that a "well-regulated" militia meant only that citizens must arm themselves to minimum federal standards with their own supplies, not that they would necessarily be part of a formally organized entity. He also relied on the fact that the modern militia statute actually broadened the general citizenry's membership in the militia by removing the old act's racial restriction, somewhat relaxing the gender and age restrictions, and including not only male citizens but also any man who declared his intention to become a citizen.6
I used to think of the Second Amendment as a relic whose only practical purpose was to give Charlton Heston something to do in his retirement. But I've been intrigued by the modern analyses of the nature of the militia in Emerson, Silveira and Nordyke. And I have to admit that I felt slightly chastened by Judge Kozinski's admonition in Silveira that liberals should be consistent when they interpret each of the amendments in the Bill of Rights, giving the Second the same broad and sympathetic reading that we commonly give to the First.7
As fascinated as I am by these new interpretations, there is one aspect of the individual rights analysis that bothers me. Judges are relying in part on the text of the current Militia Act, which did broaden the definition of who belongs to the militia, but still excludes men over 45 and all women who are not members of the National Guard. While judges have mentioned these restrictions in passing, they have not explained what impact, if any, they have on the proposition that the framers' "militia" included "all the people" and thus granted each of us an individual right to bear arms.
There doesn't seem to be any indication that the framers intended to grant this right to women, who were completely excluded from all historical definitions of "militia." Judge Gould remarked in his Nordyke dissent, "The racially restrictive definition of Ômilitia' used in the First Militia Act [which was limited to white men] of course would now clearly violate the Fourteenth Amendment and potentially violate the Thirteenth Amendment, as well as offend our sensibilities[.]"8 But he didn't address the gender and age restrictions that remain in the current Militia Act. Don't they also pose an equal protection problem and offend our sensibilities?
So, distinguished older gentlemen and ladies who haven't joined the National Guard, give me a call if you'd like to file a test case to figure out what role we play in the "well-regulated militia." I bet we can convince Heston, who might not realize that he's also excluded because he's over 45, to lend us a hand.
Sarah Kaltsounis is an associate at Karr Tuttle Campbell where she practices in the firm's Labor and Employment Department.
1 307 U.S. 174 (1939).
2 United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
3 10 U.S.C. ¤ 311.
4 Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).
5 328 F.3d 567 (9th Cir. 2003) (Kozinski, Kleinfeld and Gould, J.J., dissenting separately).
6 See also Nordyke v. King, 364 F.3d 1025 (9th Cir. 2004) (Gould, O'Scannlain, Kleinfeld, Tallman and Bea J.J., dissenting from denial of rehearing en banc) (summarizing arguments in favor of the individual rights theory from Emerson and the Silveira dissents).
7 See Silveira, 328 F.3d at 568-69 ("It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.").
8 364 F.3d at1033 n.13.
