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Gun Rights, the Militia, and Community

June 29, 2008

Gun Rights, the Militia, and Community

During the Cold War, conservatives rightly pointed out that the collectivist materialism of the Soviet Union was anti-human in the worst ways.  It elevated the state to mythic proportions.  It denied the value of individual human beings.  It suppressed the human spirit and focused on minimal material comfort to the exclusion of other values.  The state could undo social injustices, we were told, but conservatives reminded us that life always would involve certain unavoidable inconveniences and inequalities.  No law could completely eliminate evil, and the attempt to do so would lead to other evils that have been the constant fellow traveler of the leftist program.

Every state that has sought heaven-on-earth has imposed crushing burdens on qualities such as initiative, enterprise, idiosyncrasy, self-reliance, law-abidingness, trust, and regard for one’s own.  During the post-war period, conservatives made common cause with libertarian critics of “The State.”  Individualism was the watchword of the day.  But the emphasis on individualism was always a bit out of tune with the conservative ethos.  As other disorders worked their way through society since the 50s, including nihilistic disregard for family and social obligations in general, conservatives expressed their concerns about the breakdown of civil society and community, trends rooted in an “atomistic” individualism.

Conservative political philosophy is concerned above all with balance.  Excessive individualism and excessive collectivism both exhibit genuine evils in political life.  We are skeptical of change not least because the happy balance of traditional Anglo-American liberties avoided the evils of both.  It has been difficult to preserve these liberties under the American Constitution and even harder for others to replicate.  The uniquely American balance of our historical liberties is expressed perfectly in the Second Amendment:

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.

The Second Amendment has always flummoxed modern observers.  For starters, it has a preamble.  In the law, there is always an issue of interpretation—whether in contract law, property deeds, or statutes—about whether a preamble limits the meaning of the words to follow.  Is it surplusage, an exhortation, or a restriction on the specification that follows?  In this instance, it is what it appears to be:  an expression of purpose.  The right remains “one of the people,” but that right is in the service of a broader objective:  “the security of a free State.”  The Founders rightly worried that the federal government’s 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” would be abused to create a federal “select militia” that weakened states’ and individuals’ right to create militias and bear individual arms respectively. 

The Second Amendment is also confusing today because of the degradation of the militia over the last 100 years.  A true militia may be thought of as a cooperative arrangement of the people and the state.  Like the jury system, it injects the sensibility of ordinary people into the state’s exertion of power.  The formalized National Guard appeared in 1903 taking over the role of the formerly more numerous and less uniform state militias.  The routine use of the posse comitatus has also gone by the wayside in the age of professional policing, though it still persists in various locales.  

The right to bear arms at the time of the founding, while an individual right, was not conceived completely individualistically.  In this sense, Scalia’s recent opinion in Heller, with its focus on self-defense, downplays unfairly the “classical republicanism” of the Founders.   The right to keep and bear arms undoubtedly allows arms as a means of self-defense from ordinary criminals, as well as the predators of nature.  But the Heller decision’s dicta—including its gratuitous dig at the M-16--paves the way for eliminating weapons chiefly useful for a broader and more political concept of self defense:  resistance to military enemies of the Constitution, whether foreign or domestic, through the actions of the citizen-militia.

The Founders knew that a community was a fragile thing.  It can be harmed from moral disorder within, a foreign conquest, and, most insidiously, the evil of “faction.”  A purely individualistic focus on the right to bear arms—typical in the rhetoric of libertarians and the Founding era’s Francophile left-wing—does not take into account that the Founding generation, soon after enacting the Second Amendment, imposed certain duties that relate to this right.  The federal Militia Act of 1792 provided as follows: 

That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutered and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Would that the United States mandated such training today!  Gun control would have an entirely different meaning involving shot groups and tactical reloads.  The founding era’s rhetoric was more than a recitation of rights.  Even among the more liberal elements, a right was rarely disembodied from some sense of community obligation.  The right to bear arms existed alongside a duty to bear arms.  While the counterbalancing action of the different branches of government figures prominently in the Federalist Papers, the authors of that hoary work emphasized the need for a virtuous citizenry to preserve republican government. They knew that the political liberty of all depended upon the widespread inculcation of individual virtues—such as self-reliance—but also political virtues, such as watchfulness over the state and the willingness to forego private advantage when the common good was at stake.  After all, the term republic comes from the Latin “res publica,” literally public things but better translated as the common good.  The limitations on majority control contained in the Constitution could work at most to stop a temporary majority in the grip of some passion or mania.  The Constitution could not, in Rube-Goldberg fashion, forever channel any sort of collection of people, however devoid of virtue and public spiritedness, away from the natural results of their collective character. The Founders knew that character and liberty were mutually reinforcing and necessary for republican government to serve the individual and common good. 

As Patrick Henry put the matter:

Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?

A robust militia serves to improve the virtue of the people and ties their fortunes with those of the state.  Military drill instills characteristics of physical courage and discipline, while also giving the people the necessary skills to resist any threats to their liberties.  It is worth remembering that that the Founders were not only concerned with preventing tyranny; another important intervening event preceded the Constitutional Convention of 1787.  That event is Shay’s Rebellion, a lawless veteran’s movement that threatened the fragile order that prevailed under the Articles of Confederation.  In other words, the Second Amendment in particular evinces the U.S. Constitution’s dual aims:  liberty and order.  The liberties the Constitution recognizes are historical in nature, and certain seeming inconsistencies—in truth, necessary limitations—flow from their historical contours, which are by necessity more circumscribed that the abstract liberty one might imagine from a purely theoretical point of view. 

The Founders’ Solomon-like solution to the problem of creating a government energetic enough to discharge its duties, but not so powerful to oppress the people, finds itself most emphatically in the concept of the militia.  The militia is simply ordinary male citizens assembled to perform some necessary government task such as preventing a riot, responding to a foreign invader, pursuing a fugitive, or, if need be, breaking off from de jure control and responding to some emergency from within the apparatus of the government itself.  For those who find this institution an anachronism in the age of nuclear weapons, consider the relative inability of modern militaries to suppress insurrections with small arms in such varied locales as Iraq, Vietnam, Algeria, and New Orleans.  How much happier would the events in New Orleans have been if some reasonable percentage of the citizenry were routinely accustomed to assisting law enforcement and the National Guard in preserving order and responding to disasters.

Like a strong military in foreign relations, a well-organized militia has a deterrent to would-be tyrants both at home and abroad.  While some standing military is necessary today, how much less of a threat such a military would pose to our liberties if it were counter-balanced by tens of millions of American men armed, trained and organized at the county and state level, enforcing laws that they have chosen to live under as a free, self-governing people. 

As it stands, the American people are disorganized and increasingly servile.  Partly because of the proliferation of meddlesome laws, their relationship to law enforcement and the military is typically one of indifference or hostility.  The increasing professionalization of law enforcement and military functions has reinforced this gap between the State and the People.  A robust militia working hand-in-hand with full-time government officials would do much to restore civic pride, reduce tension between the government and the community, and deter the worst government excesses. The common extreme individualist notion of gun rights is problematic.  Without some sense of common destiny and moral courage, an armed but selfish population would be of little use against either foreign or domestic threats.   Why?  Because it would always be in one’s individual interest to let some other guy do the fighting.  To paraphrase General Patton, without teamwork you can’t fight your way out of a “piss-soaked paper bag.”  This criticism of the disorganized militia was commonly levied during the War for American Independence.  Consider the account of George Washington in a letter to the Continental Congress dated September 1776:

To place any dependence upon Militia, is, assuredly, resting upon a broken staff.  Men just dragged from the tender Scenes of domestick life; unaccustomed to the din of Arms; totally unacquainted with every kind of Military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly train’d, disciplined, and appointed, superior in knowledge, and superior in Arms, makes them timid, and ready to fly from their own shadows.

Does this line of criticism mean we should not have a militia?  Hardly.  But it does mean that a disorganized militia is not nearly so useful in securing a free state as an organized and well-armed one.  Without some subordination to law and public purpose, armed Americans acting as lone wolves or in some other disorganized groupings would more likely become a rabble like the Quantrill gang.   Without some concern beyond the self and without some coordination with self-governing and local political life, the right to keep and bear arms is nearly useless as a bulwark of liberty.

Constitutional and republican government aims to preserve liberty and government without extinguishing either.  As Burke put the matter:

To make a government requires no great prudence. Settle the seat of power, teach obedience, and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein. But to form a free government, that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful, and combining mind.

The historical right to keep and bear arms is the product of such minds.  But conservatives should consider the Founders’ solution in all of its detail.  They preserved an uncompromising individual right to keep and bear arms.  But that right existed in a larger tableau of duties and institutions that balanced the individual good with the need for cooperation in social life.  In an age of out-of-control crime, rampant illegal immigration, natural disaster, and threats of terrorism and urban disorder, a revitalized militia movement to assist local law enforcement and the National Guard, something like a well-armed variation on the Cold War Civil Defense programs, would be a worthy conservative endeavor that would secure a great number of the benefits of our historical right to keep and bear arms.

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