Well-Regulated Militia & Right to Bear Arms

I have heard opponents argue that the second-amendment’s “well-regulated militia, being necessary to the security of a free state” is subsumed by the National Guard such that there is no right for citizens to organize lay-militia. Without expressing an opinion on lay-militia and para-militia groups, I’m not convinced that the subsuming approach is correct.

The adjacent Fifth Amendment has specific language that perhaps better illuminates the Framers’ conceptualization of “militia.” It reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;” Through this prose, the Framers distinguish “militia” from land and sea forces (Army, Navy, Marines  Coast Guard, and now also Air Force). Depending on how one interprets the text’s commas, it also suggests that militia could be “in actual service in time of war” but not necessarily that a “militia” incurs compulsory service in congressionally-declared war which is fundamentally different than the National Guard, active reservists, and inactive reservists. The wording of this amendment also speaks of “militia” serving in a time of “public danger.” While this does seems to describe routine duties of the National Guard, it could just as easily describe well organized neighborhood watches who ambush foreign invaders or who defend their neighborhood or community from civil unrest when rioters, arsonists, and looters cannot be held in check by the executive government. Our forefathers of the 1700s never imagined telephones or radio transceivers so they must have expected that the people be armed so as to respond to any invasion or unrest. America would be similarly situated in the event that a solar flare disabled our electric or telecom infrastructure. Americans must, therefore, be as prepared today as 200 years ago and militia armament equal to the armaments posed by any “public danger.”

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