Atty. Ralph D. Sherman

130 West Main Street • New Britain, Connecticut 06052

tel. (860) 229-0213 • fax (860) 229-0235 • e-mail atty@ralphdsherman.com

Legal Opinion

September 1998

The Second Amendment (Part 3): What is the militia?

“A well regulated militia...”

From time to time I meet shooters who have formed or joined some sort of private military organization or club. They tell me that they did so because the Second Amendment protects their rights only if they “join” a “militia.”

But that isn’t how the framers of the Constitution saw the militia. Nor is it the view of the U.S. Supreme Court. In the words of both the framers and the court, the militia is the whole of the people, with arms that they provide themselves, ready to be called from their regular, non-military occupations to serve as a defensive military force.

Let’s start with the framers. In countless documents of the Revolutionary and Constitutional eras, the framers made it clear that they had no use for a standing army. If the government - even a democratically elected president and Congress - relied on arming a select group of men who had no other form of employment, the select group would become detached from the rest of the population. Inevitably those who were armed would come to tyrannize those who were not. Instead, the framers said, arms should be widely possessed by people who had business and social connections with their neighbors.

A great deal of the resentment that led to the Revolution was caused by the King’s placement of royal troops in the colonies. These troops - a standing, professional army - had no roots in the communities that they were to police. Abuses were common. So was the kind of taunting that led to the Boston Massacre.

Another cause of the Revolution, or at least its outbreak, was the attempt by the King’s military leaders to disarm the colonists, especially in Massachusetts. The result: The battles of Lexington, Concord, and Boston.

In the wake of these experiences, it seemed obvious to the framers that all of the people should be armed. Indeed, some of the framers thought that this point was so obvious that it didn’t need to be included in the Constitution or, later, the Bill of Rights. While the sparse language of the Second Amendment may seem difficult to understand today, it was self-evident 200 years ago. Many other documents of that era make the point more explicitly.

For example, The New Castle County (Delaware) revolutionary committee resolved that “a well regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and stable security of a free Government.” And the Virginia Declaration of Rights of 1776, written by George Mason, asserted “that a well regulated Militia, composed of the body of the People, trained to Arms, is the proper, natural, and safe Defence of a free State.”

Historically, the concepts of arming or disarming the people date at least to the time of Plato. In his ideal society, only the ruler and a select army would have arms. In The Republic, Plato expressly stated that it would be necessary to disarm the general populace to make his system work. Today many of us would liken his system to communism.

Next month, I’ll present what the U.S. Supreme Court has said about “the militia.”

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