A Well-Regulated Militia

“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.” —Second Amendment to the U.S. Constitution.

“The 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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” —Article 1, Section 8.

Logically, there exist three legitimate purposes, broadly defined, for ordinary citizens to keep and bear arms. These ends are, as follows:

1. The use of arms for recreational pursuits, which include but are not limited to hunting, sport, outdoorsmanship, and collecting. These may be considered general liberties, which, like any other ordinary freedom, ought not to be prohibited except when their exercise would do harm to others, and which may be regulated so as to avert conditions that would cause such harm.[1]

2. Self-defense and, under certain circumstances, defense of property. This is a natural right, which every person possesses inherently.[2]

And,

3. Providing for the security of a free state as part of a well-regulated militia. This is the purpose stated in and forming the basis for the Second Amendment. It is, under the laws of the United States, and in certain conditions specified therein, a duty.

From this third purpose, it follows that—

In order to provide for the security of a free state, which is ruled by the consent of the governed and is respectful of individual liberty, a militia must:

1. Be well regulated; i.e., be properly trained, disciplined, and equipped for the tasks it is to fulfill, and have clear standards defining what its members may and may not do.

2. Be accountable to the people.

Only an elected government can act on behalf of the people. As John Locke, whose thought guided our Republic’s Founders, wrote in his Second Treatise of Government:

“The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuance of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people, without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest.”

In the United States, the legislative power is vested in Congress and in state and local legislatures.

Furthermore, it does no good for a militia to be accountable to the elected government of one city or State, if it goes to operate in a different one without having been invited there by the elected government of that community. To do so would be tantamount to invasion, unless—and only unless—it is sent there by a higher government that is representative of the people of both places.

Thus, according to the Constitution, Congress prescribes regulations for the militia, and the state governments implement those regulations by training the militia and appointing its officers. State governments may call forth the militia and control its operations within their State, unless the militia is called into the service of the United States (federal service), wherein it is temporarily directed by the federal government and may be ordered anywhere in the Union.[2]

State legislatures, as they possess the general powers of government, may choose to delegate some authority to local governments to recruit, train, and direct a part of the militia. In the past, towns and cities would raise units which were then integrated into the state militia upon their acceptance by the state government.

However,

The militia has evolved over time.[4] The Militia Act of 1903 divided it into two bodies, which remain in existence today: the National Guard, known also as the organized militia and comprised of volunteers, and the Reserve Militia, known also as the unorganized militia and comprising all able-bodied male citizens between 17 and 45 years of age.

The National Guard fulfills most of the old militia’s former roles: namely, to augment the regular forces of the United States in times of war, to defend each State against internal violence, and to assist the civil authorities in the case of natural disaster.

Moreover, regular state and local police forces—which did not exist as such in the early days of our Republic—now hold primary responsibility for protecting their localities from internal violence, in addition to their ordinary duties of law enforcement.

As a result, there are few circumstances that would warrant calling forth the unorganized militia today. It is therefore unlikely that ordinary citizens shall be called on to provide for the security of their State.

Nonetheless,

That fact does not imply that the right to keep and bear arms is obsolete, nor that the concept of a militia is entirely archaic; it only means that there is not presently a great need for it. The logic of the Second Amendment, that there is value to a free state in having an armed populace from which to draw a broad-based militia, has dormant force. Under exceptionally dire circumstances, such as a foreign invasion or a prolonged breakdown of central authority, it may indeed become necessary to raise a militia that is accountable to the elected government of a State, or even a municipality.

Yet,

The preceding logic does mean, unequivocally, that Americans ought under no circumstances to form ‘militias’ that are not directly accountable to the elected legislature of a municipality, a State, or the Union. Self-proclaimed militias which answer only to themselves, even if they claim to represent some imagined idea of the popular will, are mere militant groups, not the militia defined by American tradition and the Constitution of the United States. Their multiplication today endangers the security of a free state. It is thus in direct violation of the Second Amendment.

This danger has been made clear by recent events. A young man crossed a state line to travel to Kenosha, Wisconsin, armed, at the behest of such a self-styled militia, and killed two people there. He may yet be acquitted of the narrow charge of murder, if reason can be given to show that his immediate act of killing was done in self-defense.

But his larger action, and that of the group he associated himself with, brazenly defied the spirit of the Constitution. He was not defending his own home, which as a private citizen he might claim a right to do. Indeed, he could not claim to have been defending his own city, or even his own state: for he was a resident of Illinois, not of Wisconsin. The ‘militia’ whose call he answered is in no way accountable to the elected governments of Wisconsin or Kenosha; indeed, the city authorities had expressly turned it away. Neither it nor he had any business pretending to provide ‘security’ there. In doing so, they defied the popular will.

The act that occurred soon thereafter in Portland, Oregon was similar in nature. An individual  traveled from his home in Washington state to Portland, where he fancied himself to be providing ‘security’ for protests, and there killed a man. He had no more business there than his counterpart did in Kenosha; nor is the group he associated with, the self-styled ‘antifa,’ any more accountable to the elected governments of Oregon or Portland than the ‘Kenosha Guard’ is to the elected government of that city.

That ‘antifa’ is more diffuse than the self-proclaimed militias of the extreme right does not make it fundamentally different in character. It is a militant group, unaccountable to the people, whose affiliates seek to ape the roles of a militia while assuming none of the obligations of one. Such groups, whether they profess political alignment with the left or the right, ought to be equally unwelcome in our Republic.

Furthermore, the argument that militants were justified in coming to Kenosha and Portland because they had to protect the people there who were, at that moment, in danger, is wholly unconvincing. That violent unrest was occurring, or had occurred, in both cities is undeniable. But if the people of those cities needed outside aid, their elected government—and only their elected government—had the authority to request it on their behalf.

Indeed, in Kenosha, an accountable response to the rioting soon unfolded. The city government requested that the State of Wisconsin send in the National Guard. The state government responded: the Wisconsin National Guard deployed, followed by National Guard units from other States, which the government of Wisconsin had itself requested. Within a week, they restored the peace.

Therefore,

Responsibility for securing a free state begins and ends with a freely elected government, and a well-regulated militia is only the latent force of that government, mobilized at its call and no other’s. Those Americans who aspire to militia service as a civic calling ought thus to consider joining the National Guard. Others ought merely to be ready to answer their government’s call, should it come, and be content with the fact that it may not come in their lifetime. None ought to associate with unaccountable militants.

In regard to the present situation in these United States, it is with local and state governments that responsibility for dealing with domestic unrest primarily lies, and those authorities ought now to concentrate their minds on securing their citizens’ lives and property. Riotous behavior, and the militancy that it attracts, has gone on long enough. Although the task at hand may be made more difficult by federal intervention, which, though broadly lawful, is at present largely unconstructive, the time for excuses has passed. The outcome of the general election this November, and the faith of the people in elected government generally, may hinge in large part on whether the streets are soon calmed. Discipline and perseverance are needed; the future of the Republic is at stake.


[1] When hunting is done for subsistence, it assumes the station of a natural right and carries greater moral weight.

[2] Locke articulates it well in his Second Treatise of Government:

“…it being reasonable and just, I should have right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion… that will be sure to destroy him whenever he falls into their power.”

In regards to defense of property, lethal means may be morally justified if the property concerned is necessary for the sustenance of life, such as food in a time of famine, or a vital medicine; and also if the attack on property is indistinguishable from an assault on one’s life, such as a mugging, or a burglary if the homeowner or his/her family is inside.

In the words of Locke:

“This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else.”

It must be noted here that Locke, and I, speak only of moral right; the actual laws of the United States and the several States differ on the particular circumstances in which lethal self-defense is permissible.

[3] As occurred, for instance, when National Guard units from several States were deployed to New Orleans in response to Hurricane Katrina.

[4] For a more detailed accounting of this history, I recommend the excellent short piece at the following link:

No. 1 – On Fundamental Liberties

No. 2 – On Federalism

No. 3 – On Representative Government

Representation for Washington, D.C.

“The Congress shall have Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” —Article 1, Section 8 of the U.S. Constitution.

The bill recently passed by the House of Representatives to confer statehood upon Washington, D.C. proposes a solution to an old problem: that, in the District of Columbia, a great number of U.S. citizens — now more than 700,000 — do not possess a vote in Congress.

It is clear, as a matter of republican principle, that the inhabitants of Washington, D.C. ought to be represented in the government of the Union. Just governance obtains the consent of the governed, and in a republic that consent is obtained through the election of representatives who vote on their constituents’ behalf in the legislature. This logic applies as much to the federal capital as it does to the rest of the country. A city must have permanent residents in order to function; those residents are citizens of the United States; and citizens of the United States ought to be represented in Congress.

Some form of representation for the residents of Washington, D.C., furthermore, appeared to be the Founders’ intent. As James Madison wrote in Federalist No. 43, two years prior to the District’s establishment in 1790:

“And as [the District] is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them…every imaginable objection seems to be obviated.”

More than two centuries later, that intention remains partially unfulfilled. The parts of it that have been realized came but slowly: Washington, D.C. received Electoral College representation with the ratification of the 23rd Amendment in 1961, and was allowed an elected local government with the passage of the District of Columbia Home Rule Act in 1973. Congressional representation, the last remaining part, is long overdue to the permanent residents of Washington, D.C.; and it ought to be provided, in some form, without further delay.

However,

The Founders did not intend the federal capital to be a State. Their reasoning rested on sound logic: that no State ought to have undue influence over the Union by having jurisdiction over the grounds on which the government of that Union convenes. As Mr. Madison also wrote:

“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. …Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the [Union].”

The present bill proposes to address this imperative by creating a new State out of the residential and commercial areas of the city, while maintaining the present federal District in a reduced area comprising the principal federal buildings: the Capitol, White House, and Supreme Court, as well as the Department of State and certain other federal agency headquarters, and the National Mall and its monuments. It would thus in theory ensure Congressional authority over the effectual seat of the federal government, defined as the buildings most essential to that government’s operation.

This solution, to the layman’s eye (such as my own), appears constitutional: Article 1, Section 8 requires only that Congress exercise exclusive legislation over the seat of government of the United States, and that the maximum size of this seat be ten miles square; it does not specify a minimum size, and does not prohibit the reduction of this area, so long as Congress gives its assent.

Yet a practical question arises as to whether a new State of Washington, D.C. that controls most of the existing capital city might nonetheless have undue influence over the federal government, even if its territory does not include the main federal buildings. For instance, federal officials would have no option but to live and pay tax either in that State, or in Maryland or Virginia; the principal federal buildings would likely rely on public services, such as garbage collection, that are provided by the new State; and, as Union Station is outside the reserved enclave, the federal government would not be guaranteed uninterrupted access to a transportation hub.

Or, as Mr. Madison put it:

“This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.”

The inverse of this issue, that a State of Washington, D.C. might itself be unduly dependent on the federal government, and thus unable to exercise the partial sovereignty that statehood entails, also warrants examination. The present District’s water supply, for instance, is controlled by the Army Corps of Engineers. Its economy, moreover, is singularly reliant on the federal bureaucracy — even more so than those of Virginia or Maryland.

The present bill does not fully address those considerations, but instead leaves them to an appointed commission that would be convened only after the bill becomes law.

Furthermore,

The claim that the bill would not require a constitutional amendment seems misleading. Admitting a new State, it is true, only requires a majority vote of both houses of Congress. Yet the admission of Washington, D.C. as a State would necessitate repeal of the 23rd Amendment, which established a special formula for the District’s Electoral College representation. If that Amendment were to remain in effect after a new State is formed from the greater part of the city of Washington, it could be construed as to transfer the present District’s three electoral votes to the residents of the federal remnant — which, insofar as the White House is the only residential building in that enclave, would consist mainly of Presidents and their families. The demerits of giving incumbent Presidents such direct influence over their own re-election are self-evident.

The repeal of the 23rd Amendment would itself have to be a constitutional amendment, as the repeal of Prohibition was. It ought to be timed so as to take effect at the same moment that a new State is formed. The current bill makes no such provision, instead arranging only to expedite Congressional consideration of the repeal.

Alternatively,

It is conceivable for the inhabitants of Washington, D.C. to be accorded voting representation in Congress, as is their due, without the District assuming the reserved powers of statehood, which could undermine Congressional jurisdiction over the federal capital. In a federal republic such as ours, we associate representation with the partly-sovereign status of statehood; yet in the centralized governments of Europe, the subordination of administrative districts to the central government does not preclude their inhabitants’ representation in the national legislature. Such a status would appear to be what Mr. Madison had in mind for the District of Columbia.

Accordingly, contained in these essays (No. 9 – On Citizenship) is a proposal that Washington, D.C. — and, separately, the smaller U.S. territories overseas — be granted voting representation in the House of Representatives as a special district, without being made a State. This proposal was founded on the logic that the House is meant to represent the people directly, whereas the Senate is meant to represent the States; and thus representation in the House need not be contingent on statehood. Such an arrangement would require a constitutional amendment to enact, though it would also allow the 23rd Amendment to remain in place.

Other alternatives appear inadequate. A return of most of the present District to Maryland — which originally ceded the territory — would incur the same considerations of undue influence, and it would require the District’s residents to relinquish their separate political existence, maintained for more than two centuries, which they understandably seem reluctant to do. It would furthermore require the assent of the Maryland legislature, which itself might not be forthcoming. Proposals for residents of Washington, D.C. to count as Maryland residents for representation, while leaving the territory outside the jurisdiction of the State of Maryland, would distort Maryland’s politics and muddy the concept of statehood generally. Bestowing both House and Senate representation on the District without conferring statehood, as the unratified District of Columbia Voting Rights Amendment of 1978 proposed, would confuse the federal aspect of our Union by altering the Senate’s role of representing co-equal and partly-sovereign States.

Therefore,

Washington, D.C. ought either to be admitted as a State if — and only if — a bill doing so can convincingly address the practicalities of undue influence and make its enactment contingent on repeal of the 23rd Amendment; or else voting representation in the House of Representatives ought to be provided for the residents of Washington, D.C. by constitutional amendment, while retaining Congressional jurisdiction over the whole District.

If there are adequate practical means to ensure that Washington, D.C., as the bill proposes, may be admitted to the Union “on equal footing with the other States in all respects whatever,” without undue influence over the federal government, then those means will arise in the course of scrutiny and debate. In considering such solutions, it would be valuable to draw from the experience of the federal government’s dealings with Virginia, to whose jurisdiction Arlington and Alexandria were returned from the District of Columbia in 1847 with the acquiescence of Congress. The Pentagon is located in Virginia, as are the metropolitan area’s principal airports.

To this end, the Senate ought to consider the present bill on its merits, amend it as necessary, and vote on it; and then propose a new bill or constitutional amendment if the present measure fails to pass. If this Senate refuses to debate this bill out of partisan disdain, then the matter ought instead to be taken up by the next Congress.

Finally,

Whether or not this bill, or a variant of it, becomes law, it is worth noting that its sponsors chose a worthy name for the State which would arise from it. Washington, Douglass Commonwealth preserves the form, “Washington, D.C.,” that the city’s residents and all Americans have long been accustomed to; it continues to honor George Washington, who watched over our Republic in its infancy; and it bestows deserved recognition on another great American, Frederick Douglass, who gave our Union, then in its adolescence, the advice it needs to mature with dignity today.

No. 3 – On Representative Government

No. 9 – On Citizenship