Right to well-regulated militia

[Jonathan Buhacoff]

The proposed right:

No person shall be denied the protection of a well-regulated militia.

No state shall be prohibited from acquiring and operating weapons for its militia similar to weapons acquired or operated by the federal government.

Intent:

This right is an important deterrent of federal overreach and foreign invasion. It is also an important deterrent against violent criminal organizations that overwhelm local law enforcement.

According to the American Heritage Dictionary, 5th edition, the term militia means 1) an army composed of ordinary citizens rather than professional soldiers, 2) a military force that is not part of a regular army and is subject to call for service in an emergency, 3) the whole body of physically fit civilians eligible by law for military service.

In this proposal, well-regulated means that the militia has standards for all its activities such as (but not limited to) enrollment, training, conduct, equipment maintenance, and operations.

This proposal does not seek a liberty for every person to have weapons, but instead a liberty for every person to benefit from the protection of a militia organized by the people. This creates an opportunity for people to come together for mutual protection. It also allows people to have personal weapons and allows the local, state, and federal government to regulate the manufacturing, sale, ownership, use, and disposal of personal weapons.

The militia must be well-regulated, and this means the government may enact laws and regulations ensuring that such militias are organized, trained, disciplined, accountable, and responsible for the protection of everyone in their area of operations.

This right doesn’t obligate the people to form a militia, nor does it obligate any person to join a militia, but it prohibits the government from denying people the ability to form a militia and enjoy its protection.

This right establishes that the purpose of a well-regulated militia is to protect all people, not to oppress them and not to selectively protect only some people. This is in alignment with the right to equal opportunity. If there are resource issues and the militia can only protect a limited area during an emergency, then everyone would be welcome to go there for the protection and to support the militia.

In the event a militia demonstrates a severe lack of discipline or dereliction of duty, the government may disband that militia and form a new one that is more well-regulated, but it cannot permanently disband a militia and not allow a new formation because that would violate this right.

The federal government shall not deprive any state from organizing and maintaining a well-regulated militia. Each state is responsible for organizing and maintaining its own well-regulated militia and ensuring they recruit and train enough eligible people to protect the public and form an effective deterrent against crime and war. The federal government may not prohibit states from acquiring or operating any arms that the federal government acquires or operates. This does not create an obligation for any state or the federal government to supply whatever arms the state militia requests, nor does it limit states from enacting their own laws limiting what weapons their state militias may acquire or operate. It merely allows the states to acquire any weapon that the federal government has acquired, if they have the funds and knowledge and skills to do it.

Discussion:

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.

Some modern military equipment can be carried and operated by one person, such as a knife, pistol, rifle, or grenade. However, that does not mean that it’s appropriate or safe for that equipment to be in the home of a militia member. For example, a sniper rifle, machine gun, grenade launcher, shoulder-fired rocket launcher, or landmine doesn’t belong in anyone’s home. Military personnel would not be taking these home, and neither would militia members. Private citizens should not have them at home either. There is also equipment that requires teams of people to operate such as mortars, artillery, tanks, and attack helicopters. These should not be at the home of any soldier, militia member, or private citizen either. That doesn’t mean private citizens should be deprived from learning about them and using them in controlled ranges. Finally, really expensive, large, and deadly equipment such as fighter planes, bomber planes, destroyers, submarines, aircraft carriers, and missile launchers should not be anywhere except guarded military facilities when not deployed somewhere.

In a modern state, a band of citizens or a militia would be outmatched if it were to face the nation’s military in battle. This is why it’s important for the military to remain apolitical and to pledge to protect the Constitution and the people and not pledge any loyalty to a particular person, not even the President, and why military officers must refuse to obey illegal orders. If something were to go wrong with this system, militias all over the country at least give the people a chance to defend themselves or fight or protect their escape.

If an enemy were to defeat the military in an invasion, again bands of citizens and militias would be outmatched but having them all over the country at least makes the invasion many times more difficult compared to an unarmed population and the organized militias can serve as the beginning of a resistance.

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 because of the right to keep and bear arms. The government can regulate these private weapons, such as prohibiting carrying a weapon into a public space.

A person who wants to have weapons such as pistols or assault rifles must join the militia to be trained in the safe and effective storage and use of such weapons and also to be educated about all applicable laws and regulations. If a person resigns or is discharged from the militia, they may be required to return all such weapons to the militia.

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.

Comparison to the United States:

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.

The right to well-regulated militia ensures that people can be protected by a militia, even if not everyone can participate in a militia. A militia can operate defensive and offensive weapons that private citizens are not allowed to keep and bear so it has a fighting chance against organized crime and foreign invaders.

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