Arguments needed in D.C. v. Heller
The granting of
certiorari by the U.S. Supreme court in
D.C. v. Heller provides the first great opportunity we have had to get a decision on interpretation of the Second Amendment. Already a host of parties are preparing to file
amicus briefs in the case, threatening to drown out two important arguments that need to be made and that it does not yet appear will be made by any of the
amici:
1. The primary original meaning of "militia", from the Latin, is
military service, or, because it includes law enforcement and disaster response,
defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.
2. The only regulation that is "reasonable" is regulation that
enhances the effectiveness of militia.
The lost meaning of "militia"
The right to keep and bear arms (RKBA) is asserted in the Second Amendment with the preamble of militia being a primary purpose of that right:
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.
Previous attempts to get around the right to keep and bear arms has been to subject firearms to taxes. This was the issue in
United States v. Miller, 307 U.S. 174 (1939) which took the approach that if the firearm in question had had a militia use, it would not have been taxable, and therefore it would not have been illegal to possess it without having paid the tax. While one could question the constitutionality of making it a crime to possess something on which a tax has not been paid, we can understand the concern of the Court that if one cannot make a distinction between militia-related items that are tax exempt and non-militia-related items that are not, then, since almost anything could conceivably be used for militia under some circumstances, nothing would be taxable.
Therefore, it is not enough to establish the individual RKBA if we do not address the way Congress has been trying to do an end-run around it using its taxing power and the precedent of
Wickard v. Filburn supporting criminal penalties for activities that have a "substantial effect" on interestate commerce, under an expansive interpretation of the Necessary and Proper Clause to assert the power to not only "carry into execution" the expressed powers, but to do whatever might be convenient to try to attain the purposes for which a regulation of commerce might be enacted.
To make the proper determination of what is and what is not "militia-related" we therefore have to understand the original meaning of "militia", and do so better than most scholars have done heretofore.
Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it.
The term "militia" is derived from Latin roots:
* miles /miːles/ : soldier[2]
* -itia /iːtia/ : a state, activity, quality or condition of being[3][4]
* militia /mil:iːtia/: Military service[5]
In English, the usage of "militia" to refer to those engaged in the activity dates back to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline[6]
The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.[7]
Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin or used a Latin word in English discourse.[8][9]
The reason this distinction is important is because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.
This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.
The key thing to understand is that "militia" is not a plural "group", with the implication of "two more more". We can see in the writings and speeches of the Founders that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is
militiae, and if the Latin-literate Founders had meant it that way, they would have said
militiae. They were, in that usage, meaning the activity, and sometimes, blending both meanings at the same time.
The meaning of the word is discussed in more detail in
Militia v. Inimicitia.
What kind of "regulation" of militia is "reasonable"?
It won't be a victory for the original meaning of the Second Amendment if the holding of the Court is that the right to keep and bear arms is individual if it also holds that it is subject to "reasonable regulation" and that exception allows all the restrictions that are presently enacted.
Clearly, the concept of militia does contemplate regulation beyond the "self-regulation" that would satisfy the stipulation that militia be "well regulated". We have in U.S. Const. Art. I Sec. 15 and 16:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
While militiamen are in called-up status, they are subject to miltia discipline, under which they can be directed what weapons to use and for what purposes. When not in called-up status, they can be required to keep certain kinds of weapons, ready for call-up. See the
Militia Act of 1792. Although it may not be obvious to some, it would be unconstitutional to get around the RKBA by keeping the entire population in a permanent called-up status. Call-ups are supposed to endure only as long as an imminent threat exists for which only militia can meet it.
To understand what kind of regulation is reasonable for persons not in called-up status we can use the analogy to the preemptive authority to regulate the time, place and manner of congressional elections, it is unconstitutional to do so in a way that would make elections less fair, convenient, or accurate. Similarly, it is unconstitutional to regulate militia in ways that make them less effective in performing their functions "to execute the Laws of the Union, suppress Insurrections and repel Invasions", or at the state or local level, to respond to disasters. People may be required to be armed, but not forbidden to be armed, without a specific due process proceeding to disable the exercise of the right on proof the individual is a treat to himself or others, with a right to a jury.
What is not reasonble or constitutional is prosecuting people on an administrative determination that they are "dangerous", even if there was a conviction of a "felony". without disablement of the RKBA being an explicit part of the sentence. See
Public Safety or Bills of Attainder? — Written Jun. 14, 2000. Published in
University of West Los Angeles Law Review, Vol. 34, 2002.
A case could be made for the constitutionality of regulating the quality of firearms, in much the way the U.S. DoD regulates the quality of the firearms it purchases for its own use, but not for prohibiting weapons that "do not have a sporting purpose". Militia is not about hunting. even thoug hunting may be a way to maintain militia skills.
The idiom of using the same word for an antivity and those engaged in it
There are many other examples of this idiom. From the
Century Dictionary, the precursor of the
Oxford English Dictionary, we have the following:
assembly (a-sem'bli), n.; pl. assemblies. [ME and OF assemblee] 1. The act of assembling, or the state of being assembled or gathered together. 2. A company of persons gathered together in the same place, and usually for the same purpose, whether religious, political, educational, or social; an assemblage.
congregation (king-gre-ga'shon), n. [F. congregation] 1. the act of congregating; aggregation. 2. Any collection or assemblage of persons or things.
delegation (del-e-ga'shon), n. [F. delegation] 1. A sending or deputing; the act of putting in commission, or investing with authority to act for another; the appointment of a delegate. 2. A person or body of persons deputed to act for another or for others....
ministry (min'is-tri), n.; pl. ministries. [F. ministere] 1. The act of ministering; the rendering of service; ministration. 2. The state of ministering or serving; agency; instrumentality. 3. The office or function of a minister, civil or ecclesiastical; the state of being a minister, in any sense; the discharge of a mionisterial office.... 4. The general or a particular body of ministers of religion; the ministerial or clerical class; the clergy or priesthood. 5. The body of ministers of state in a country; the heads of departments collectively; the executive administration.... 6. A ministerial department of government; the organization of functionaries administering a branch of public afffairs; a minister and his subordinates collectively....
hunt (hunt), n. 1. The act of seeking for or chasing game or other wild animals for the purpose of catching or killing them; a pursuit; a chase. 2. A pack of hounds engaged in the chase. 3. An association of huntsmen...
police (po-les'), n. [F. police] 1. Public order; the regulation of a country or district with reference to the maintenance of order.... 2. An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by whom the municipal laws and regulations of a city, incorporated town or borough, or rural district are enforced. 3. In the United States Army, the act or process of policing.
Other such words include service, movement, wedding, viking, aggregation, march, and court.
See Constitutionalism blog entry
here.
