Structural analysis of Amendment II
From the US Constitution's Bill of Rights:
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
To do some analysis on this Amendment requires examining it by its parts as this is a passive voice clause that hints at it being of a large scope unlike the active voice clauses that mention a particular part of government or government function. To those not familiar with this sort of terminology I point you to two prior posts looking at the work of Nicholas Rosencranz in – All agree or none shall pass Part 1 and Part 2. His work on the Subjects and Objects of the US Constitution serve as a means to examine the inter-contextual structure of the Constitution and its Amendments via the SVO structure of sentences.
To begin comes the passive voice system in which the subject is not one of a stated power or function of the US government nor, indeed, any State government which would get direct recognition. Here the subject is the Militia which has prior mention in the US Constitution which allows for the context of Amendment II to be seen in light of what the prior citations are for this subject. In Article I, Section 8 there is this mention:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
These are passive voice clauses as compared to the five more active voice clauses seen preceding them in Section 8 regarding the Army and Navy which are power grants to Congress:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
In these clauses Congress is granted power to do things: To define and punish Piracies and Felonies; To declare war, grant Letters of Marque and Reprisal; To raise and support Armies; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces.
These are all things Congress is granted power to do and they are specific power grants to specific Objects be they legislative in nature or to parts of the government specifically created and cited by this language. Congress is not granted power to create the Militia but to arm, organize, train and discipline the Militia when it is actively called up for service. This is a function not of creation but of regulation to normalize the operations of the Militia to that of the military power granted to Congress. This is not a power grant to Congress for creation of such a body or organization. This is the power granted to Congress for the Militia is exacting: it may provide for calling forth the Militia and that the Militia will act under the Law to suppress Insurrections and repel Invasions. In those two instances Congress is granted only the power to tell the Militia it must act in accordance to the Laws of the Union which are not just the civil laws but the military laws used to govern the stated Army and Navy powers of Congress. Those Laws are those of the Piracies and Felonies, War, Letters, Rules of Capture, and Rules for the Government and Regulation of the land and naval Forces as well as the Militia. These are militarily known as the Laws of War and are operational in nature, which means they are how a military is to operate and what the rules are it is to follow when in war.
The internal organization, creation, and all other powers for how the Militia gets its officers are not granted to Congress but to the States the Militia comes from. That is to say that the power of assigning officers, creating drill routines, how often training is supposed to happen and how the Militia gets organized is not granted to Congress but to the States separately. The second clause is thus one of regulation during a call-up to service which is strictly limited to war or suppression of insurrection.
From this the Militia begins to get a definition:
1) Militias are State bodies created by the States,
2) Militias can be called into service by Congress during war or to suppress insurrection,
3) Congress can regularize the operations of Militias to be in accord with army and navy laws, rules, procedures and common arms,
4) Militias have their internal command structure determined by their respective States, not by Congress,
5) Militias are not regular forces under the command of Congress and are explicitly stated as bodies that may be called forth in service to the Union but are otherwise not under Congressional power.
There are two additional clauses in Article I that deal with these powers, and they are in Section 10, which is in regards to the States, and I will give you the first and third clauses as the second does not deal with war powers:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
[..]
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
These are active voice prohibitions and exceptions that pertain to the war powers and the Militia is an adjunct to those powers. The first is an explicit prohibition on the States on war powers that they may not utilize nor exercise: Treaties, Alliance, Confederation and Letters. The second is an active voice prohibition with exception. States are not allowed without Consent of Congress to keep Troops or warships in time of peace or enter into Agreement or Compact with another State or foreign Power, or engage in war. The exception is explicit on these things: unless actually invaded, or in such imminent Danger as will not admit of delay. Any State suffering invasion or in imminent Danger that no other forces can come to defend the State is then relieved of such prohibitions.
From this we get another definition of the Militia:
6) Militia are not Troops or navy.
That is Militias are not standing forces but those individuals of a State who come together to practice the arts of war but do not form a standing military organization. They do not get regular pay from the State. While uniforms may be regularized, actually getting one can be done either by purchase or donation of used equipment. In fact all the equipment and supplies rely on those who volunteer for such work without pay and with only the internal rank recognition as formulated by their State. As is often seen in movie depictions these are 'Honorary' titles, save during call up to arms by Congress or utilized by their State to combat invasion or Dangers, in which case they become active and formal titles of rank.
A Militia is not the National Guard unit as that is part of an organization directly created by Congress, under standard Congressional regulations for the army and the navy, with its internal structure defined by Congress. National Guard have many appearances of Militia in duties and their ability to be called up by Governors but their internal command structure is one created by Congress, not the States.
If the National Guard were a Militia they would be able to own their own weapons and equipment, be responsible for them and train as their States provided for, as well as have rank positions that were solely a State concern. The bases, armories, equipment, supplies, provisioning, and all other things would be the property of the Militia, the members of the Militia or set aside by the State to form volunteer Troops that answer to the State, first, then federal government only during times of war or insurrection. In some instances the National Guard is explicitly called a Reserve Unit of a military branch, and a Militia is specifically not a Reserve but an autonomous unit under direct regulation of their respective States as non-standing forces.
Moving on to Article II, Section 2 and the Executive Branch there is the following, in part:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; [..]
This is an active voice in 'The President shall...' and a direct and specific power grant to the individual of the President. As leader of the armed forces, the President also becomes leader of the Militia of the several States only when they are called into service by Congress. Thus there is a two part requirement with order precedence: active call into service by Congress then allows the Presidential power of command. What is interesting is that the States generally place their Governor (or other determined Executive) in charge of the Militia during call to service for the State.
This is an ongoing tradition of the several States as existed before the Constitution as I examined for a number of the States in this posting. Indeed during such times of service a Governor's power grant of Field Marshal or General (or whatever a State determines it to be) would then place the Governor in charge of his Militia during call up by the legislature in that State and such duties would also place that Governor in charge during a call up by Congress as the leader of the Militia. This would serve as a check and balance on the President and federal power and also allow for a voice in wartime to be heard from the States, especially on operations taking place within that State (to repel an invasion, say). The President would get overall command of forces, yes, but the particular way those commands are passed down would be through the Governor (who may appoint a State determined Militia Officer in charge of actual disposition, but the chain of command would still be present).
That is the Executive power grant and it is short and sweet.
In the Judicial power grant in Article III there is this from Section 2 and do note the internal link to an Amendment is in situ from the Archives:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
During active calling for the Militia they serve as an adjunct to the regular forces and under the codes for them set by Congress. In general when operating in the field on hostile territory, even during an insurrection, the State may not be said to be in control of such territory where that conflict is taking place or that the actual land is contested via force of arms. Thus the military code is in place for field operations and as they are not normal, civilian operations they operate under the Courts Martial system. Thus Courts Martial are normally not jury trials but ones by Tribunal or, if in the field during combat, often by a commanding officer who must make a life or death decision on the spot.
There is an appeals process to the Supreme Court and that is a direct and mentioned power grant to it.
Thus we now know who regulates the Militia: the States in Peace and the Congress only under calling forth in war. This regulation is one that is in the nature of training, organization, and command structure. Prior to the US Constitution, State Constitutions tended to leave the lowest and most local level of the Militia up to local organization and officers below a certain rank, and then those companies would come under the structure regulated by the State. In this case 'regulation' is in regards to the regularization of duties, training, etc. not in what you arm yourself with. If a higher level wants the Militia to have different arms in the field, then it must supply them and train the Militia in its usage, which is the Congressional language that says as much. There are no prohibitions in such regularization and, indeed, it is usually an upgrading of arms and armament when it is supplied by Congress. And nothing prevents the Militia from using what it wants to as each individual must support himself within the organization.
From this we now have a much better definition of the Subject of the Amendment II: the Militia.
Next is the Verb in the SVO sentence and it reads as follows:
being necessary to the security of a free State,
The Militia is a pre-requisite to a free State and that has a similar mention in the body of the Constitution in Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
This is an active voice part of the compact between the States and the US government which is created by the signatories to the Constitution, which are the duly elected representatives of that State with the assent of the people of that State. The purpose of this larger government is to ensure that a Republican Form of Government is in every State, which is to say a multi-way power division between branches that have separate power domains, and that the government shall protect each State from Invasion. Here we learn an important proviso on the prior Article I, Section 8 mention of suppression of insurrections: that can only be done when a State Legislature, or Executive when the Legislature is not actively convened, petitions Congress for this intervention. Thus there is a State check on the suppression of insurrection power and is broadened to domestic Violence for the States. Not only is this a positive check on Congressional over-reach, but it actually puts a greater scope on what a State may see as violence against the State as an entity.
It can then be said that as the States are guaranteed a Republican Form of Government and that each State shall be a free State, that the Republican Form of Government is a pre-requisite for a free State. Indeed this goes with prior examination of Art. I, Sec. 10 and that the scope of governments in the States are to have Legislative, Executive and Judicial branches, although their exact powers are determined by each State.
A Militia then serves two purposes from Amendment II:
1. It serves to keep an established free State as free,
2. It is the foundation of a free State as its guarantor.
The US government is only to serve to protect each of the States and to come in service when a State Legislature or, in limited circumstances, Executive calls upon Congress for help. As seen in Art. I, Sec. 10, the normal prohibitions upon a State to keep Troops disappears during an invasion, emergency which shall not admit of Delay which is larger domestic Violence against the State as an entity. Isn't it nice how the same stuff gets repeated in slightly different terms throughout the Constitution so that people can get a good idea of what a specific power is? Art. IV, Sec. 4 does that without ever once mentioning the Militia, and yet it now fully scopes out the power relationship with regards to it via the States and the larger government they have created.
If this larger government is the external guarantor of a free State, the Militia is the internal guarantor of it. Amendment II puts the Militia in an exactly equal power position as the entirety of the US federal government in the Verb activity of the Militia. They are exactly equal in power and are given the same domain with the exception of which is internal and which is external, and the line between them is demarcated and explicitly drawn. It is because of that equivalence of power and stature that the Congress cannot control and regulate the Militia at all times, as that would make a sham of having a free State. To have a free State you must have:
1. A Militia.
2. A Republican Form of Government.
Anything that is a necessary prerequisite for something else thus places it ahead of the other thing. If A is necessary to having B, then B cannot be necessary to have A: A comes before B. And if B is necessary to get C, then A comes before C.
A = Militia
B = free State
C = United States government
A then B.
B then C.
Militia before a free State before the United States government.
That is the explicit logic structure set up by Amendment II and is in accord with creation of the Constitution by free States. You do not get to the United States before you get to a free State and you do not get to a free State before you have a Militia.
Now comes the Object of the SVO sentence:
the right of the people to keep and bear Arms, shall not be infringed.
Who makes up the Militia which is the Subject of this Amendment? That is answered: the people keeping and bearing Arms in a way that is not infringed upon.
Who would do such infringing? Who is this prohibiting, in other words?
The power of a passive voice is that when it is not explicit (which would create an active voice, as in Amendment I) then it is universal for that domain in question. You can go to Amendment III and see this sort of thing at work with the 'No Soldier shall, in time of peace be quartered in any house, without consent of the Owner...' This is a universal protection against any that would house a Soldier in a private residence. It does not matter if Congress wants it done or if the Executive orders it, or a Judge requires it: it is prohibited from all THREE from doing this. Their power is limited, and circumscribed during peace time and then in times of war there is necessary military law to follow for territories under dispute. In other words even during wartime there is a necessary set of laws to follow for Soldiers as set by Congress. Yet at no time is 'set by law' mentioned in Amendment II, which means there are no provisos to Congress making law in this area.
Amendment IV also is a passive voice reading 'The right of the people to be secure in their persons, houses, papers...' is one that is against the Executive who must seek a Warrant from a Judge before violating these protections. Otherwise, on just the say-so of an Executive this cannot be done. What is more is that Congress cannot order a blanket search by law without having provisions for the Judiciary to moderate it via the Warrant process. Yet the Executive and Judiciary are not mentioned in Amendment II.
Take a look at Amendment V, and I'll do a bit more with it here as it mentions the Militia, but as individuals:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Note that while serving under call-up during wartime means you are subjected to military law and its system, so the standard civilian protections are not enforceable for individuals serving during a war. Why don't jihadis get a civil trial? They are at war with us, waging illegal war and are subject to military justice whenever they wage war against the Nation. Similarly if you are in the Militia under call-up and commit a crime in-theater, you can expect military justice as given by Congress. Thus when called up the Militia is under military law, and when not serving they are under civilian law. It would be expected that during time of training in the voluntary Militia you would be under the laws set by your State for such activities and training.
It can be seen that there are laws for the individual regarding the Militia, how it is formed (done by the State) and how it serves under call-up either by the State or by Congress. These are not prohibitory laws for firearms, but laws for conduct and order within the ranks and during combat. Thus these are not venues to prohibit arms of any sort and they are universal and inclusive of not just the federal government but, because A then B, of the State as well. Internally this is consistent with the other Amendments in the Bill of Rights and the Body of the Constitution as well, and this provision has rooting in both and must be read as part of the existing structure of the Constitution itself.
Would this mean that there are no prohibitions on any arms for anyone?
No, there are prohibitions and one of the simplest deals with loss of certain civil rights by criminals. Convicted felons have their civil rights restricted in regards to the franchise and the keeping and bearing of arms as such individuals have demonstrated that they have placed themselves outside the law for their own reasons in the way of crime and are no longer trusted with either the franchise nor the right to bear arms. But do note that felons who pick up any readily available arms for self-defense against animals or other criminals (or in times of war) will not be prosecuted as they have exercised their positive natural liberty to preserve their own life. To those wishing to give back the franchise to felons, why not the right to keep and bear arms? If they have, indeed, served their time and done penance, and you wish to trust them with the franchise, then why not with arms as they come in hand-in-hand should not your trust be perfect in that regard?
Looking back to the Common Law, there were restrictions on arms one could not bear on their own, such as cannons and mortars. These crew-served weapons one could own (a man's home is his castle) but couldn't take along with him to the store or city council meeting. Keeping and bearing meant that you could keep such heavier arms, but had restricted utilization of them because you could not bear them. Keep and bear arms means things you can carry with you. And back in that day it was not just muskets, pistols and such, but axes, swords, long knives, sabers... anything you could afford, really. About the only other restrictions were on those who had lost all touch with reality, those who were violently insane, or just unable to learn how to operate even the simplest of arms or who were so withdrawn that very little could reach them save hunger. They were usually restricted by confinement, kept from dangerous objects by family or cared for by individuals or institutions that tended to the sick. If you heard voices but performed your duties, recognized commands and realized the voices in your head couldn't order you to do anything but that guy with rank insignia could, then you had the opportunity to defend yourself like the rest of them. While we may have improved upon diagnosis, description and some treatment of these problems, the social controls seem to be less, today, than they were way back when before the Framing. If you can't trust your fellow man to help on this, then bucking the stupidity up to government isn't an answer and becomes a whole different sort of problem.
Thus the restrictions upon individuals are those of self-government, caring for your fellow man, and seeing that those who are criminal really may do their time, but that lack of self-control for a felon means that there is a serious lack of something there that time just may not heal. That's about it.
A free State is not just kept by armed citizens, it is formed by armed citizens, and that logic is one that is at the basis of Amendment II. It is a recognition that the positive natural liberty of bearing arms is not just self-defense, but in the creation of a free State that will recognize your rights as an individual to be free to live in a society that respects you and that government is forced to respect by its very foundation. Of course there are dangers to this, but there is worse danger and blood... rivers of blood... due to tyrants and autocrats, despots and dictators, emperors of many stripe who have decided that slavery for others is better for them... when government is not forced to recognize that it is accountable to free citizens who are willing to change or abolish government when it no longer respects their freedom and liberty.
