Why does the Second Amendment apply to State Militias?

Let’s start with the Articles of Confederation, which were the United States’ first constitutional document. It was drafted in 1776-77 and became the working constitution, although it was not formally ratified until 1781. The Articles authorised the Continental Congress in its supervision of the American Revolution, its diplomacy with Europe, and its handling of territorial issues. There were complaints that The Articles were too weak to adequately administer the United States’s governmental functions. Shays’ Rebellion pointed out many of the flaws in the system of govrnment instituted by the Articles. Some wanted the Articles amended, others advocated a new order. Eventually, the Articles of Confederation were replaced by the current Constitution in 1789.

Article VI of the Articles of Confederation:

nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

There are other paragraphs pertaining to the militia in Article VI, Article VII, and Article IX. Article VII provides that all militia officers under the rank of colonel be appointed by state legislatures. Article IX provides that Congress should appoint officers at the regimental level (colonels, usually) and above, and also gives a procedure by which the federal government could call upon the militia in case of national emergency. It was up to state governments under the Articles to determine which men would serve in the militia.

The Articles also clearly distinguish between troops which can be only be kept in time of peace by states with the consent of Congress and militia which it is the obligation of the state to supply and keep up.

The lack of an institutional response to the Shays’ uprising was among the factors which led to the reevaluation of the Articles of Confederation and gave strong impetus to the Constitutional Convention which began in May 1787. The delegates of the Constitutional Convention granted Congress the power under Article 1; section 8, clauses 15 and 16 of the federal constitution to “provide for organizing, arming, and disciplining the Militia,” as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for three specific missions, as described in Article 1, section 8, clause 15: “To provide for the calling for of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The Militia Act of 1792 enacted these provisions into law with the militia consisting of; “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.”

What was not specified in the Constitution, but was clearly understood by all was that the term ‘militia’ meant the militia of the states given its prior usage and understanding in the system set up by the Articles of Confederation.

Note that the Militia Act requires that the militia member is enrolled into his unit. The actual procedure varied from state to state. In most states at most times, it was the responsibility of the local officers to find out who was new to an area and enroll them in the militia.

For example, here is the 1836-37 Revised Statutes of North Carolina:

“That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district…such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given.”

Also note that the federal government always has the power to “organize, arm and discipline” the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely used this power at times when no state militias were called up by the federal government. When the state militias are called up, the federal government has additional powers over them, but this has nothing to do with the other powers.

A major concern of the various delegates during the constitutional debates over the Constitution and the Second Amendment to the Constitution revolved around the issue of transferring militia power held by the States’ (under the existing Articles of Confederation), to Federal control. The new Constitution effected a dramatic shift of military power from being militia based and predominately controlled by the States towards being controlled by the federal Congress and the President with the addition of a federal army. It was this shift in power with the Federal government being given the power to arm the militia which led to the Second Amendment.

See also:
The Founder’s Constitution
Militia-History and Law FAQ
Militia Mythology

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