I was a “Little Tiger,” a member of Fred Garis’ Tiger Athletic Club for boys. When it rained we couldn’t play football or softball at Daffin Park, so we’d go to the attic at Stubbs Hardware in downtown Savannah and take target practice, shooting .22 rifles at paper targets.
I grew up around guns. I’m comfortable with them. Most Americans have never fired a gun and are terrified of them. I probably would be, too. So you have to be very gentle in discussing such an emotional issue as gun control. It’s helpful to focus on a few simple facts.
Let’s start with the Second Amendment to the U.S. Constitution:
“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.”
Don’t you think it’s strange that the only attention ever paid to this amendment focuses only on the right to bear arms? Nothing is ever said about the first part, the militia.
There I go again, bringing up another explosively emotional issue. Although the Founders regarded the militia as being “necessary to the security of a free state,” the concept of militia has been demonized by the media, and understandably so.
Recently, four soldiers at Fort Stewart were accused of murdering two people. The foursome were allegedly afraid that their plan to take over Fort Stewart by force of arms would be revealed by the victims. These “patriots” had also planned to blow up the fountain in Forsyth Park in Savannah and also to somehow poison the Washington apple crop.
These soldiers called themselves a “militia.” However, four dirtbags do not a militia make.
A constitutional militia had to be chartered by one of the states. The militia were therefore a part of the state government. They were the predecessors of today’s “counties.” It is doubtful that our four terrorists would ever have received a state charter.
Also, private militia are not the kind of militia referred to in the Constitution as the “Militia of the several states.” I’m not knocking private militia — at all. It is perfectly legal to form a private militia, and most members are responsible, patriotic and honorable. However, private militia and gun-rights groups are greatly disempowered because they don’t have the force of state law behind them.
More importantly, private militia are relatively small compared to the early American militia, which consisted of the entire population. Did you get that? All of the people were required by law to be militia members. Therefore, the government of the state of Georgia consisted of ... everyone.
The state militia is a governmental office/department that still exists and is waiting to be revitalized and staffed. The militia enjoys the same permanent legal status as the other six players in the constitutional drama — the states, the United States, Congress, the president, the Supreme Court and “We the People” — none of whom has the legal right to alter or abolish any other player.
The state of Georgia could not abolish itself or its militia (absent the unanimous consent of all the states) because it would be in violation of its constitutional contract which requires that there be states and that each state have a militia.
The militia is by far the oldest constitutional player. When the Constitution was enacted in 1787, the militia had already been an essential and integral part of colonial and state governments for 150 years. That’s why the Supreme Law of the Land declares only the militia to be “necessary to the security of a free state.”
Consider also the other “militia clauses” in the Constitution:
- Article I, Section 8, Clause 15 — “[Congress shall have power] to provide for calling forth the militia to execute the Laws of the Union, suppress Insurrections, and repel invasions.”
- Article I, Section 8, Clause 16 — “[Congress shall have power] 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 officers, and the authority of training the militia according to the discipline prescribed by Congress.”
- Article II, Section II, Clause 1 — “The president shall be commander in chief of the militia of the several states, when called into the actual service of the United States.”
If we had somehow forgotten to elect a president for 200 years, could we hold a presidential election tomorrow and finally put a family in the White House? Of course! The Constitution requires that there be a president.
So it is with the “militia of the several states.” The Constitution requires their existence, and the Constitution is the supreme law of the land. It would be unconstitutional to outlaw them or alter them as they existed in 1787. So, what now?
Ray is a career attorney and constitutional historian who lives in Richmond Hill.