As I discussed previously, the lower-court opinion [pdf] in the DC gun case virtually "erased" the "Militia purpose" clause of the Second Amendment, in order to reach its flawed conclusion.
For that reason alone it is - to borrow a phrase from that opinion - "passing strange" that the decision discusses the history of the militia in America at all. Yet when it does offer this discussion, it gets its history wrong.
What is the purpose of the militia? The Constitution says it is "to execute the Laws of the Union, suppress Insurrections and repel Invasions." It is confusing, therefore, to conclude that the Second Amendment - with its explicit militia purpose - might somehow provide individuals the right to mount an armed insurrection against the very law and order that the militia was designed to defend.
There is no Second Amendment right to treason.
Furthermore, when the Bill of Rights was ratified, service in a well regulated militia was a civic duty owed to society. Able-bodied, free, white men within a certain broad age range were expected to submit their names for enrollment to the local militia officer, supply their own arms and equipment, and muster at the appointed times. Even the two-judge majority admitted this much.
The inevitable conclusion to be drawn, therefore, is that the militia had to be organized before someone could enroll for militia service. After all, one couldn't sign up in the militia without a "well regulated Militia" first being organized. Yet the lower-court decision ignores this basic fact. Even as the majority opinion admits that one had to first enroll with a militia officer, it defines the well regulated militia amorphously, as "citizens subject to organization."
Simply put, the lower-court's treatment of the well regulated militia in America makes no sense. For this reason and others, the decision is clearly erroneous and should be reversed.
Today I post the third installment of the Brady Center Legal Action Project's thorough criticism of the appeals court decision in the DC gun case, now before the US Supreme court. Titled, Militia Madness: How the Parker Court Substituted an "Armed Populace" for the "Well Regulated Militia" of the Second Amendment, it is a sharp and detailed criticism of this section of the lower-court decision.
I include an excerpt here, with a link to the full text at the end:
In this third installment, we explain how the Parker court, while disregarding the militia purpose of the Second Amendment as having no limiting effect, also totally mischaracterized the "well regulated Militia" that the Framers meant to protect. To the Framers, the "well regulated Militia" was an armed, organized, and disciplined governmental military institution made up of citizens. It helped fight the British during the Revolutionary War, and afterwards was called out to suppress armed insurrectionists like the farmers in Shays's Rebellion.
Thereafter, it was formally embodied in the Constitution and protected by the Second Amendment. It has existed, in some form, ever since. The "well regulated Militia['s]'" value to our society has always been to serve the three purposes laid out for it in the Constitution: "to execute the Laws of the Union, suppress Insurrections and repel Invasions." Service in the militia was a civic duty, not a right. The Parker opinion ignored this history and these purposes. Instead, the court substituted a fabricated world in which the "well regulated Militia" is an "armed populace" of citizens merely "subject to organization" who keep guns for "private purposes" and therefore have them available if called into militia service. Like so many other parts of the Parker opinion, this is a fantasy.
If the Second Amendment is read naturally, in the order it is written, then its militia purpose explains "the right of the people to keep and bear Arms," not the other way around. A "well regulated Militia" is the Amendment's aim, not merely some side benefit of arms owned for "private purposes." Moreover, it is the "well regulated Militia" composed of men "fighting for their common liberties" and "united and conducted by governments" that satisfied Anti-Federalist concerns about the potential threats of a standing army, not Parker's vision of an "armed populace."
Read the full installment here [pdf].