Glenn Reynolds: Maybe It's Time To Return To Having A "Well-Regulated Militia"

Interesting... and provocative.

Probably the most libertarian position one can take -- pushing the idea that even the armed forces ought to be made up of "the people," and hence, not necessarily at the command of government.

This is such a scary idea to statists (and, frankly, even libertarian-leaning people like myself) that I doubt it will get traction.

But it's interesting, and interesting things ought to be discussed.

Reynolds begins by noting the prefatory clause of the Second Amendment-- "A well regulated Militia, being necessary to the security of a free State" -- and then considers the implications.

If a well-regulated militia is necessary to the security of a free state, then where is ours? Because if a well-regulated militia is necessary to the security of a free state, it follows that a state lacking such a militia is either insecure, or unfree, or possibly both.

...

Yale Law Professor Akhil Amar has likened the militia to jurors with guns because, like the jury, it was an institution made up of the people, through which the government must act, and one not susceptible to the kinds of corruption besetting professional institutions).

As Amar writes:

Like the militia, the jury was a local body countering imperial power — summoned by the government but standing outside it, representing the people, collectively. Like jury service, militia participation was both a right and a duty of qualified voters who were regularly summoned to discharge their public obligations. Like the jury, the militia was composed of amateurs arrayed against, and designed to check, permanent and professional government officials (judges and prosecutors, in the case of the jury; a standing army in the case of the militia). Like the jury, the militia embodied collective political action rather than private pursuits.

Reynolds goes on to trace the decline of the militias -- the militias balked at being sent into Mexico in 1912 (they said it was outside their constitutional duties), and the government worked to federalize and professionalize the militias, which ultimately evolved into the "state" National Guards (which are really under federal authority, ultimately).

BTW: Apologies, I'm under the weather, and I'm just going to be throwing up links today, pretty much. I may even conk out and just leave some thread open for some hours.

posted by Ace at 02:07 PM

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