Where's The Militia? I Want To Enlist!

Everyone is taking the 2nd Amendment more seriously and more literally these days. While I agree with the growing number of commentators who think it likely that the Supreme Court will not find it necessary to posit penumbras in order to find an individual right to keep firearms, I'm not adverse to a small covering bet in case the current Court chooses to embarrass itself.

So, just in case the phrase the people is found to really mean, men and women who work for and wear the uniform of a government, acting under orders of a state, I'd like to get a headstart on the rush that will result from such a decision.

I'd like to volunteer now for the to-be-formed militia(s) of whichever state(s) would appreciate and value my services and meet my, admittedly very modest, compensation requirements. (About which, see below.)

You see, under a "collectivist" decision by the Supreme Court, the various state militias would become on paper—and perhaps eventually in reality—among the strongest military forces on the planet.

There really can't be any other outcome:

1. The Constitution is the supreme law of the land.
2. The various amendments were and are understood to have amended earlier versions of the Constitution. To the extent that there is a conflict between the body and the amendment, the amendment is superior.
3. Common law, statutes, interpretations or administrative decisions which were earlier understood to limit the individualist interpretation of the 2nd Amendment can't possibly limit governmental "rights." For example, where individual Americans haven't seriously attempted to push the envelope on laws that restrict ownership based on caliber, explosive potential, or platform, it would be unreasonable to think that a government could be limited to sub-.50 caliber rifles, restricted from inventorying hand grenades and RPGs, or precluded from stockpiling Bradleys and Strykers, Apaches and Warthogs.
4. Antigun commentators have had great fun over the years with strawman discussions about whether every NRA member should be able to buy a bazooka or join with their neighbors for a bunker buster. Any possible justification for such a discussion disappears with a states' rights decision. While Fred and Steve should probably never own a TOW, Montana and Louisiana could buy all they choose.
5. Given the explicit language, "shall not be infringed," and its placement as an Amendment authorized two years after ratification of the body of the Constitution, it will be difficult to argue that the language doesn't at least severely restrict the Presidential authority over state Militias contained in Article 2. Under a collectivist interpretation based on and explicitly recognizing the needs of "a free state," its difficult to see how the rights of the states to arm themselves can be limited or restricted or substantially interfered with by the other governmental party to the Constitution.

Finally, it is difficult to see how the federal government could interfere with the structure, purpose, size or recruitment of any state's militia given such a decision. Given such an interpretation, shall not be infringed is just too broad in its coverage of the 50 states and too specific in its import. Perhaps we should be concerned about a New York/New Jersey arms race one day?

While the National Guard would presumably continue in its quasi-state role (have the collectivists ever wondered why it's called the National Guard?), a prospective collectivist decision opens up grand new vistas for state authority and responsibility. It would resurrect the meaning of federal as a subject fit for polite discussion and likely change the atmosphere and the politics of federal-state conversations. Taken to an admitted extreme, imagine the excitement should Montana or North Dakota mix a little eminent domain with a whole lot of states' rights 2nd Amendment and use the two to demand control of the couple of hundred Minuteman silos still buried in the high plains prairies. The two states would immediately become full faith members of the super power club. The poetic geometry of their militias holding Minutemen missiles would be… priceless.

I can see one of the progressive states, those already comfortable with the benefits of an armed citizenry, say Arizona or New Mexico, facing a military issue such as their presently porous borders and immediately calling upon a newly formed state militia to help supply the manpower necessary to stop the surge of invaders across their borders. With the right inducements, any state that wished could recruit ample numbers of skilled and law-abiding citizen volunteers in an instant. All at a cost that would make Scrooge squeal with delight.

They could require basic Militia members to take the same training as Arizona presently requires for a concealed weapons permit, adding substantially more range time as well as basic tactics training. They could run the background checks every year or two, even while recognizing that holders of concealed carry permits are already the most law abiding group in each one of the 41 states that allow concealed carry.

As a condition of membership in the militia, the sponsoring state could require citizen-members to actually serve by spending a weekend or two a year patrolling the border. I suspect that adding 50,000 men and women to that effort, even part-timers, would make a significant difference along a state's southern border. Governor Richardson, Governor Napolitano are you listening?

For compensation, I'd suggest offering basic militia members only the minimum wage while actually on duty, and only after successfully completing training.

Of course, so that members would be ready to answer the call to duty as quickly as possible, I'd also allow require members to carry concealed while traveling.

That's the big payoff, for individuals, for the sponsoring state, for everyone. Militia members would be armed wherever they go, whether while flying the friendly skies, or touring the crime zones known as D. C. and Chicago. TSA, which is presently failing 100% of its own tests, could be disbanded as redundant.

Such would be the strength of a Supreme Court decision that ties "shall not be infringed" to a newly found "right" of the 50 free states. No federal law, rule or regulation would be superior. And that's not all bad.

LINKS: More than ten years ago, Glenn Reynolds and Don Kates penned a prescient analysis of the presumably unintended consequences should the collectivist crowd actually win the decision they seek. For a thoughtful and authoritative look at the potential outcomes from the Supreme Court this year, I recommend a careful read of The Second Amendment and States' Rights: A Thought Experiment.


You know, a defeat at SCOTUS, though unlikely, might not be so bad after all. The possible unintended consequences are very interesting.