The Militia is synonymous with the People

To The Extent The Preamble Serves As An Operative Guide, It Does Not Limit The Rights Of The People, As ?Militia? Is Practically Synonymous With ?The People.?

Miller viewed the preamble as an interpretive guide, a common practice of statutory construction used in determining legislative intent. Yet even to this extent, the preamble cannot substantially limit the rights of the operative clause.

?Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written.? United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 539 (1944). Consistent with this practice, Miller correctly gave the word ?militia? its traditional definition as comprising all men capable of bearing arms, and reasoned that the Second Amendment protects the type of arms that such people ? private individuals ? could be expected to own and use for the common defense if called upon to do so.

Considering the persistent mischaracterization of the opinion, it bears repeating that Miller concluded ?the militia? are not ?troops? or ?standing armies,? but ?civilians primarily . . . all males physically capable of acting in concert for the common defense . . . expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179.

If you are a male of military age and do not own an AR-15 type rifle, the Founders would be very wroth with you for slacking your civic duties. In some communities at the time the Constitution was written, you would even have been fined. In that context, how could the 2nd Amendment not protect individual, private ownership of arms?

Miller?s ?militia? definition is consistent with the Fifth Amendment?s guarantee that individuals may only be charged with serious crimes ?by presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.? U.S. Const. amend. V. The Militia is obviously a concept apart from the army or navy, and its members are entitled to the protection of the grand jury when not actively defending against invasion or insurrection. The Supreme Court has recognized that the militia and the armed forces are different concepts. ?Congress was authorized both to raise and support a national army and also to organize ?the Militia.?? Perpich v. Dept. of Defense, 496 U.S. 334, 340 (1990). Congress defines ?the militia of the United States? as comprising all able-bodied males between the ages of 17 and 45, as well as male members of the National Guard up to age 64, who are or intend to become citizens; as well as female members of the National Guard. 10 U.S.C. § 311. Excluded from this definition of Militia, among others, are ?members of the armed forces, except members who are not on active duty.? 10 U.S.C. § 312(a)(3).

If you read the above and your jaw is still on the floor, I will reiterate. By current law, every able-bodied male citizen of legal age is or at some point was a member of the militia.

Expanding on 10 U.S.C. § 311, Plaintiffs urge only one modification to Miller?s definition of ?Militia.? In the years following Miller, the Supreme Court held that the Fifth Amendment?s Due Process Clause guarantees the equal protection of the law vis-a-vis the federal government on par with the Equal Protection Clause of the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954). As women are now considered capable of acting in concert for the common defense, and equal heirs to the natural rights preserved in the Bill of Rights, Miller?s concept of the militia should be read in light of the modern understanding of the Fifth Amendment to include female as well as male civilians. Allowing men, but not women, the right to keep and bear arms would not survive the heightened review to which gender-based distinctions are subjected. See, e.g. United States v. Virginia, 518 U.S. 515 (1996) (women entitled equal access to military education).

This should be non-controversial, since gender distinctions are definitely viewed with suspicion when enshrined in law. It could have interesting consequences, though, since this argument would eventually lead to women being eligible for the draft.

As Professor Akhil Amar concluded, ?the militia is identical to the people . . . .? Akhil Amar, The Bill of Rights 51 (1998); see also Nordyke, 319 F.3d at 1195-96 (Gould, J., specially concurring). The two are synonyms. There is, quite simply, no support for the contrary proposition that ?militia? means ?states? or ?soldiers.?

Plaintiffs raised these arguments in their pleadings below, and clarified, at oral argument, that they are as much members of the ?Militia? described in the Constitution as was Mr. Miller, as is any other citizen. JA 69, 71-72. Indeed, at oral argument, Plaintiffs also noted they fall within the definition of the militia under D.C. Code § 49-401. JA 72.

This is significant because the plaintiffs are not just militia members under federal law but also under local law. This counters the argument that a state or local government might define "militia" differently than the federal government; at least in this case the definition is similar enough to be irrelevent.

If anyone can provide the actual text of 49-401, I'll post it here, but a quick look didn't locate it.

The District Court acknowledged Plaintiffs? claim to Militia membership:

THE COURT: Essentially, so the record is clear, Plaintiffs, indeed, contend to be members of a well-regulated militia as opposed to a state-sponsored militia ?

MR. GURA: Correct . . . They are members of the Militia. . .

THE COURT: All right, I understand your argument.

JA 74. Thus, the District Court clearly erred in holding that ?none of the Plaintiffs have asserted membership in the Militia.? JA 61. Plaintiffs have always maintained that ?Militia? was correctly defined in Miller in a manner that includes
them.

I would speculate that the District Court perhaps meant that the plaintiffs did not assert membership in a state-sponsored militia, but didn't actually write that. At first glance it seems like a pretty minor mistake. However, given the context, it could easily constitute reversible error -- that is, an error of fact that would have changed the outcome of the case. While the lower court's interpertation of the 2nd Amendment could easily provide that sort of error, if the appeals court is inclined to give some deference to the militia link this minor error could easily provide an excuse to do so.

One possible outcome of the case, therefore, would be a remand to the lower court with instructions that the plaintiffs are members of the militia and the lower court should start over from there. That's essentially how the Miller case turned out; the judges said, "Hey, there's no evidence this type of firearm has anything to do with militia service; go back and figure that out, then try again." Unfortunately, in that case, the trial never continued; which left the Supreme Court's reinstatement of the charges against Miller the final word on the matter.

I don't think it's likely we'll see a ruling like that after the degree of briefing effort gone into this case, but you never know.

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Posted on 2006-08-13 00:13:46.0 by matthew@triggerfinger.org

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