Right to well-regulated militia

[Jonathan Buhacoff]

An important deterrent of federal overreach and foreign invasion is the right to organize and maintain a well-regulated militia.

In the United States, the Second Amendment to the Constitution states “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.” This amendment has been consistently interpreted by many people to mean each person has the right to keep and bear arms without connection to service in a militia — ignoring the phrases “A well regulated militia”, “being necessary to the security of a free state”, and “the right of the people”, all of which give big clues as to the intent of this amendment, which in my opinion is that people shall be free to organize and maintain a well-regulated militia to ensure the security of the free state — people, not person. Compare that with the fifth and sixth amendments which regards an individual right and uses the word “person” instead of “people”, and the ninth and tenth amendments that relate to the people collectively and use the word “people”.

Allowing individuals to own and use weapons brings problems such as — where do they store them safely, how and where and when are they allowed to use them, and what weapons are they allowed to have. Laws have been enacted to answer these questions, but when the right is interpreted as the right of an individual to own weapons then every law attempting to regulate them seems like an overreach. In the United States, there are debates over the ammunition capacity of weapons, whether they are allowed to be automatic or semi-automatic, and the type of weapons. Is an individual allowed to own a tank? A grenade launcher? A surface-to-air missile? A machine gun? Land mines? Not only are these very dangerous weapons, but the weapons themselves have to be guarded so they aren’t taken or used without permission.

However, if the right of the people is to have a well-regulated militia, then all these questions are also answered in another way: only the militia has the weapons, the militia follows regulations on how to safeguard and maintain the weapons, and the militia can operate dangerous weapons such as in the examples cited above whereas it’s not practical for an individual to do that.

In this proposal, a clear and unambiguous right for the people to organize and maintain a militia is created. The militia acquires, stores, maintains, and operates the weapons. The militia can acquire any weapon for which it has funds and training to operate safely. Only members of the militia participate in that. People who are not trustworthy to follow orders and regulations do not serve in a militia — for example someone convicted for racketeering and murder probably and reasonably wouldn’t meet eligibility criteria in most places, although we don’t attempt to define those in advance here.

Where does that leave individuals? Individuals would have the liberty of owning certain kinds of weapons such as rifles used for hunting, bows and arrows, and knives for self defense. A hunting rifle would only support one or two shots between reloads. If someone tries to bring one of these to do a mass shooting at a school or nightclub, the damage they can do is far less and people around them have a much better chance of defending themselves by rushing the attacker during a reload. The government can regulate these private weapons, such as prohibiting carrying or aiming a crossbow into a public space.

Businesses such as shooting ranges would have the liberty to apply for a license to buy, maintain, safeguard, and allow customers to temporarily operate other kinds of weapons on the shooting range such as pistols, military-style rifles, sniper rifles, grenade launchers, and machine guns. The business owner would be responsible for ensuring all those weapons are safeguarded and accounted for, and that customers operate them safely on the shooting range. It would be a liberty, not a right, because the business would have to demonstrate that it has the funds and personnel and training to comply with regulations, and the occurrence of a grave incident might cause the license to be revoked because it’s a liberty and not a right. People can still learn about and shoot those weapons, but in a controlled manner at a designated location.

The proposed right should also specify that any particular region is limited to a single militia to ensure a single coordinated effort for the defense and that there is no situation in which there can be rivalry between militias. A region can be a city or county. Each state would have an office for the coordination of the militias, centralized support for them such as funding and scheduling training for all the militias, maintaining a single state-wide set of regulations for militias, and coordinating disbanding efforts in the case that a militia is deemed to be unregulated. When a militia is disbanded, the people still have a right to a well-regulated militia and can organize a new militia with new leadership.

The question of open carry or concealed carry is answered by this proposal — if a person is carrying a hunting rifle or bow and arrow, it must be an open carry or they must be in an obvious or labeled carrying case. A person may carry a knife or a stick or other melee weapon unless they are entering an area which specifically prohibits all weapons or some weapons. A person may carry a concealed melee weapon unless they are entering an area which specifically prohibits all weapons, some weapons, or concealed weapons. It is a liberty, not a right. If a person is arrested or convicted to a prison sentence, they don’t have a right to have those weapons inside the jail or prison, and when they are released they may have an order restricting them from owning or carrying some kinds of weapons or any weapons at all because it’s a liberty, not a right.

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