The Second Amendment’s “Militia” is not the National Guard

Published by the LearnAboutGuns.com Author on May 12, 2009 at 12:01 am
LearnAboutGuns.com > Pro Gun Rights Articles > The Second Amendment’s “Militia” is not the National Guard

A common anti gun argument that I hear is that the Second Amendment doesn’t protect individual gun ownership, but instead just allows the National Guard to have arms.  This is factually untrue, for a variety of reasons:

D.C. v. Heller

In the landmark case of District of Columbia v. Heller, the Supreme Court of the United States conclusively declared that gun ownership is an individual right, completely independent of service in the militia.  In other words, the militia argument has been utterly annihilated by the Supreme Court, whose job it is to have the last word on interpreting the constitution.  I won’t go through the reasoning that the court used here, as it would take dozens of pages to fully explain the historical and legal underpinnings.  However those who wish to are encouraged to read the D.C. v. Heller opinion.  This really should put to rest once and for the incorrect assertion that the Second Amendment doesn’t protect an individual right to own guns, however I include the information below just for the sake of completeness.

The National Guard as the Militia?

Even if, just for the sake of argument, the Second Amendment protected only the right of the militia to keep and bear arms, then the National Guard surely wouldn’t qualify as the “militia,” insofar as the Second Amendment is concerned:

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Firstly, the National Guard was created in 1903 by an act of congress – over 100 years after the Second Amendment to the constitution was ratified.  The founders of our country could not have envisioned the National Guard, and surely didn’t mean for such a then-non-existent organization to be the “militia” that they referred to in the constitution.

Secondly, the National Guard uses Federal equipment, exists on Federal property, and “federalizes” guard soldiers when they are called up for duty.  As such, it is effectively an arm of the Federal government. As the Air National Guard website makes clear, the guard is structured so that each member of the guard holds ” . . membership in the National Guard of his or her state and in the National Guard of the United States.”  That same web page points out that “most of the laws [concerning the guard] may be found in Title 10 of the U.S. Code,” further showing the federal nature of the guard.  Given the goal of the founders of this country to allow the population to be armed, so as to avoid tyranny at the hands of the federal government, it defies logic to think that an armed force created and controlled by that same federal government would count as the militia which is intended to resist tyranny.

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Note: This article is not in any way intended to disparage the National Guard, or the men and women who serve in it.  I have friends in the guard, and think highly of both them and the guard as a whole.  Instead, my point here is that the National Guard is not the “militia” mentioned in the Second Amendment.

I also want to make clear that I have no general dislike of the Federal government (although I do disagree with some of its gun control laws, and other policies too).  I’m actually an employee of the Federal government who enjoys his job and coworkers.

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  • John Davis Jr.

    The second amendment states that the Right to keep a well regulated militia referrs to each states right to have a state owned militia! Just like the state of Texas has a state militia called the Texas State Guard.I know for a fact because I was a member of the Guard here in Texas for 17 years.Where does these dummies think that these state militias come from? They are made up of regular citizens likie me,that is willing to be called up in a disaster,and walk patrols armed with riot guns and tear gas grenades to help protect the general public from criminals.To protect the public from looters,and crime in general!

    In order to do this,we need the 2nd. amendment to guarentee this right,along with the right of the citizens to keep arms,so when they are called up by their prospective states,they will be already armed.Most states have provisions in their constitutions for citizen militias,and each state can call up as many as 2000 able bodied men from 18-60 years old to protect that state.Hell,Texas has it ans so does many other states does too.So,,,don't let anyone pull on your calf fries about state militias being the same as the National Guard.The Texas State Guard goes all the way back to the Texas Freedom Fighters and Sam Houston,Daniel Boon,David Crockett W.B> Travis and all the rest.Thanks for allowing me to comment on your web site!

  • Janet

    No American Citizen is excluded from claiming the Second Amendment ..
    The Second Amendment applys to all or none at all.
    The only time an American Citizen is excluded from the rights others have to own and carry a gun is if they are a criminal..neither does a murderer or thief with a criminal record have a right to vote they forgo their right when they use a gun to commit a crime a crime that takes away the rights/laws of others covered in the Constitution.
    If the Second Amendment does not apply to all law abiding citizens then we have nothing to claim we are a free people a free people are private persons all holding to all their rights as citizens of the USA