OUR SO-CALLED CONSTITUTIONAL PURISTS SHOULD LOVE THAT IDEA!
I’m not a Constitutional Originalist. The reason for this should be obvious. The world has changed somewhat since the late 18th century. Conservatives may not like this fact, but it is true.
Thing is, I’m not unique in this opinion. Among those who are opposed to a strict interpretation of the Constitution as originally intended by the Founders are…Constitutional Originalists.
Originalism is a scam designed to provide a legitimate-sounding defense of awful, regressive policies like denying women a right to make their own reproductive decisions or making it more difficult for black people to vote. Originalism is not something to be taken seriously, however, when debating a matter of importance to elite interests, like say multi-billion-dollar gun markets
Take, for instance, the Grandmaster Originalist, late Supreme Court Justice Antonin Scalia. In 2008, Justice Scalia leading a majority opinion decided to throw away 200 years of precedent by proclaiming that the 2nd Amendment guaranteed an individual right to bear arms outside of the context of a well regulated militia. Yeah, “A well regulated militia…” is literally the first four words and the opening clause of the much-beloved Second Amendment, but…meh…whatever.
According to Scalia, the “well regulated milita” part was the “Prefatory Clause,” while the “right of the people” was the real focus of the 2nd Amendment. In other words, the founders wanted individuals (white, male, able-bodied) to bear arms, preferably so they could form well-regulated militias. But the militias were not integral to the intent of the founders when writing the 2nd Amendment. As Scalia wrote in his opinion, “Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
Like I said, Scalia was a Grandmaster Originalist. Nobody was as deft as he when it came to finding convoluted rationales for why his interpretation of the Constitution was the original interpretation of the Constitution.
Consequently, the “well regulated militia” part of the Constitution pretty much went the way of the dodo. That’s why on the wall of the NRA Building, the great defender of the Second Amendment simply deleted the prefatory clause. It’s just not that important. It’s not the 18th century anymore.
Despite the fact that, like Antonin Scalia, I’m not an originalist, I think the Founding Fathers had a point when framing the Second Amendment in terms of a well-regulated militia. It’s a point lost to contemporary social thought, especially in terms of the so-called rugged individualism espoused by the political right.
Defense is a collective endeavor. A society composed of atomized individuals pursuing their own self-interest is not a safe society. We saw this in Uvalde where it took the police almost an hour and a half to act in response to the massacre of school children. We cannot rely on an individual good guy with a gun to stop a bad guy with a gun. The good guy may be averse to putting his life at risk.
So, I’m on team “bring back the militia” as a strategy for reducing gun violence. Of course, by “militia” I mean something a little different than that envisioned by the Founding Fathers. After all, it’s not the 18th century anymore.
Here’s how it will work. If you want to exercise your Constitutional right to keep and bear arms…Great! First, you must join your locally organized militia. The militia will be composed of gun experts, of course, but also social workers and counselors, teachers, and local business people. Any number of people may be selected by local stakeholders to participate in regulating the militia. They will determine the criteria by which an individual will be allowed to join the militia–just as our Founders had their own such criteria.
Once you are accepted into the militia, a process that should involve background checks and positive references from family members, peers, employers, and/or relevant professionals, the militia will assess you and license you for the kinds of weapons that you are qualified to own. No. You don’t get to go to the store and just buy a military-grade weapon off the rack just because you happen to be of age and don’t have a criminal record. Before you can be licensed to carry mass killing machines you have to demonstrate sound judgment. This can be done by participating with the militia, undergoing periodic reviews, and being a responsible citizen. Through the militia, you can earn the right to own more intensive firepower.
Now, this militia should not be analogous to the 18th-century bodies. This militia is more of a gun club. It should not have any policing authority, though it should work hand-in-hand with the police as an organized body. Certainly, in the event of an invasion, let’s call on the militia. In a posse comitatus situation, the militia may be a valuable asset. Otherwise, policing is the job of police officers.
Rather, the militia is an efficient way to bring prospective gun owners under the oversight of knowledgeable people who can help keep guns out of the hands of the wrong people while ensuring that the rights of the people are not denied. This means that some people will not be able to get a gun. If the militia decides that a person is too questionable for inclusion, then that person does not get a gun until they qualify for membership. They may also not be able to get the gun they want. These provisions are consistent with Heller. In Part E Section III of Scalia’s opinion, the justice is clear, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Furthermore, Scalia reaffirmed that the right to bear arms doesn’t proscribe limitations on the types of arms allowed. “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”” And, the justice affirms, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
All of these limitations can be affected by a well-regulated, locally controlled militia. Such a body also satisfies the reasonable concerns about too much federal authority in the matter. This solution eliminates the fear-mongering around the federal government coming to take your precious guns.
Organizing militias in this way is, I think, an effective mechanism for balancing the right to bear arms with increasing concerns for who is able to get their hands on guns. If we take this a step further and put regulation of gun retail in the hand of local militias, giving local militias the power to license and revoke the licenses of gun dealers, we have an efficient means of accountability. Your gun shop has sold three weapons to unlicensed people, you no longer get to have a gun shop. Militia gun clubs can be a valuable, rationalized tool for making sure that the good guys can own guns and the bad guys can’t without feared government intrusions.
However, I have a somewhat different angle on this than the creation of an efficient, rationalized system for regulating guns. In 2016, I outlined four factors that I noticed in an analysis of mass shootings. Mass shooters often shared some antecedent conditions. They were almost always victims of social isolation and/or bullying. Many were motivated by indoctrination into transcendent values justifying violence toward a larger cause. They were almost all men trying to shape their identities in the context of troubled masculinity. Finally, they all had unreasonably easy access to guns.
Locally controlled militias can be a valuable tool for mitigating some if not all of these antecedents, and can thus pre-empt the tragedies we keep seeing replayed in communities all over the country. The militia allows for gun ownership in terms of group identity. That’s why the militia will not be run simply by gun enthusiasts (though those running the militia should be enthusiasts–this is important). They should be run by those with a background and training in group formation and identity. Regular participation with the militia, sharing stories and experiences, adopting histories, and listening to each other, mitigates the problem of social isolation.
The militia should instill in its members a sense of shared history and the philosophy of responsible and respectable citizenship. This mitigates the problem of those searching for transcendence and finding it as a warrior for a violent cause. You’re a part of the militia, and that makes you a valuable member of your community. Further, as one gains experience in the militia, status and the recognition that comes with it can be gained and incorporated into the individual’s identity.
Certainly, the militia should not exclude women or LGBTQ+ citizens. However, special care should be made for helping our young men develop a sense of masculinity consistent with community values. Manhood means taking responsibility for others around you, especially those not in a position to take responsibility for themselves. It means applying reason before force, contemplation before reaction, and knowledge before anger.
Finally, guns can only be accessed within the parameters set by the militia. If a member is troubled, they have people they can turn to or people who can recognize a problem and intervene before a victim becomes a victimizer. It is through the militia that an AR-15 isn’t just a commodity one is able to buy at a gun show. Rather, it is a signifier that the holder is a sensible, responsible gun owner who has earned the right to own such a weapon.
After having years to contemplate the topic, I think this is a reasonable step in the right direction that is consistent with American values as accepted by both the left and the right. It’s not a perfect solution. There never is one. The biggest obstacle to this system is the obnoxious number of guns that are already available from any number of avenues. We have far too many guns in our country. Little progress can be made until this one is resolved.
Also, institutions like locally controlled militias are often shaped by the biases present in the local community. This means that militias may reproduce structural/cultural racism, and bigotry which, when in the context of gun ownership, could be devastating. Systems of checks and balances will have to be in place to make sure that the militia acts in accordance with values of justice and equality.
Regardless, something has to be done. There is some socio-cultural pathology that undergirds our gun crisis. Guns don’t buy themselves, and they don’t pull their own triggers. We can and should regulate guns, but this in and of itself will not solve our gun crisis. Structural problems require structural solutions.