The Militia Clause of the Constitution Negates the "Collective Right" Interpretation of the Second Amendment By Robert Greenslade - Price of Liberty
The Militia Clause of the Constitution Negates the "Collective Right" Interpretation of the Second Amendment
By Robert Greenslade © Nitwit Press

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July 10, 2006

Those groups and individuals opposed to the private ownership of firearms claim the people do not have the individual right to keep and bear arms because the Second Amendment pertains to the "collective right" of the States to maintain armed militias. A simple review of the debates on the militia clause disproves this interpretation of the Second Amendment.

During the debates in the Federal [Constitutional] Convention of 1787, there was an extensive debate concerning the militia. On August 23rd, a committee report was delivered to the Convention. The following clause was under consideration:

"To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-

Mr. KING, by way of explanation...the Committee meant...by arming, specifying the kind size & caliber of arms....

Mr. MADISON observed that 'arming' as explained did not extend to furnishing arms...

Mr. KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury..."

There was no dissent from the Committee's definition of the word "arming." This provision, with a slight modification in verbiage, was adopted as Article 1, Section 8, Clause 16 of the Constitution for the United States.

Mr. King's statement shows that the intent of Clause 16 was to give Congress three (3) options for "arming" the States' militias when called into federal service. One, Congress could require the individual militiamen to report with their own military weapon. Two, it could require the militiamen to report with military weapons supplied and paid for by the individual State governments. Three, the federal government could supply and pay for the weapons.

This raises some interesting questions. How could individual citizens be constitutionally obligated to furnish their own military weapon, when called into federal service, unless there was an existing right to purchase and posses such a weapon? And how could the States furnish arms to their militias unless they already possessed the "collective right" to arm their militias? According organizations like The Brady Campaign, it took the so-called "collective right" Second Amendment, which was adopted 4 years after the Constitution was written, before the States and members of their militias were "afforded" or "guaranteed" the right to keep and bear arms. As shown by Mr. King's statement, this assertion is patently false because these so-called rights existed prior to, and independent of, the Constitution or the Second Amendment.

The following excerpts from the 1788 debate in the Virginia Ratifying Convention on the same militia clause also refute the "collective right" interpretation of the Second Amendment:

"Mr. JOHN MARSHALL .The state governments do not derive their powers from the general government... The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away.. But the power given to the states by the people is not taken away; for the Constitution does not say so. The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it. But there are no negative words here. It rests, therefore with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption.. All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section. But what excludes every possibility of doubt, is the last part of it- that "no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary."

Marshall's remarks totally invalidate the "collective right" interpretation of the Second Amendment. Marshall noted that the Constitution (Art. I, Sec. 10, Cl. 3) forbids the States from engaging in war, "unless actually invaded, or in such imminent Danger as will not admit of delay." The Constitution, through the above clause, authorizes the States to use their militia to engage in war without consulting Congress. How could the States, as noted by Marshall, engage in war to protect their borders unless they already possessed the "collective right" to maintain an armed military force (militia) under their exclusive control? This acknowledgment of state power, as confirmed by Marshall, is independent and separate from the powers delegated to the federal government concerning the limited use of the States' militias.

As the debates continued, Marshall, who would later become a controversial Chief Justice of the United States Supreme Court, provided an excellent example of the principle of limited government. This system of government, as established by the Constitution, has been completely lost in the debate concerning the right to keep and bear arms. His statement further disproves the "collective right" interpretation of the Second Amendment:

"[I]f Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?"

He concluded by observing:

"... that the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been."

Marshall noted that the States had the indisputable power to arm their militias prior to the adoption of the Constitution and they retained that power unless they agreed to surrender it. As shown by Marshall, there was no need for a "collective right" amendment because the States already had the exclusive power to arm their militias independent of Congress, the Constitution, or any subsequent amendment.

The underlying claim of the "collective right" interpretation is that the States some how surrendered the power to arm or maintain their militias, via the Constitution, and had to wait from 1788, when the Constitution was adopted, to 1791, when the Amendment was ratified, in order to ensure that their militias had "the right" to possess arms. This claim, as shown by the above facts, is so preposterous that it brings into question the integrity of those groups and individuals that are attempting to sustain the "collective right" interpretation of the Second Amendment.

Note: Since the word "arming" in Clause 16 includes individual citizens providing their own military weapon, no State can pass a general statute that negates or interferes with this constitutional provision. This principle also applies to Congress. That body cannot pass any statute that alters or defeats a constitutional provision. State and federal laws banning the possession of so-called assault weapons constitute a revision of the Constitution because they alter the "arming" provision enumerated in Clause 16. The Constitution can only be changed through the amendment process enumerated in Article V.

(Editor's note: This isn't limited to firearms. The bottom line is that No constitution or legislation can end or alter the inalienable right of every human being to self defense, by whatever means is necessary.)

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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