2nd amendment penumbras

The US is ill served by having the gun lobby be the primary defender of the Constitution’s 2nd amendment. The first part of the text is, as the gun controllers correctly note, under analyzed:

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.

The problem is that the gun controllers don’t seriously analyze it either. What is the militia is a question that has yet to be definitively answered. As clear from the statements of the Founders, the text of federal law, the collective wordings of the state constitutions and state laws, the militia is the whole of the people. Membership in the militia is pretty clear. But that doesn’t answer more than who is in the militia. It says nothing about what it is.

What does the militia do? It must do either exactly what the military does or some subset of what the military does. How do you describe what the military does? Well the military has a listing of job descriptions called Military Occupation Specialty Code (MOSC). You never hear either side of the gun control debate discuss which MOSC are covered under the penumbra of the 2nd amendment’s recognition that the security of a free state makes a well regulated militia necessary. The gun controllers get the vapors at the idea that the 2nd amendment even has penumbras while gun groups aren’t much interested in potential penumbras beyond the right to ammunition for those guns they want and other ancillary questions strictly related to the subject of pushing lead downrange.

I would suggest that seriously thinking about what a militia is and what it should be restricted from doing would leave a large body of activities that should be protected by the 2nd amendment but generally aren’t because of the outsized emphasis on the trigger puller protection portion of the text. What are the military missions that are appropriate for the US military that are inappropriate for the militia? That’s a reasonable question. Let’s start with a decidedly non-scary MOSC, quartermaster. The military will occasionally feed the hungry. Does the militia have that right? That seems fairly trivial but yes, they should be able to. But when cities try to stop the feeding of homeless in city parks, is it still trivial?

When you live in a land of very limited laws, such questions do not arise. Of course you can feed the hungry and nobody need think too hard under what bit of the Bill of Rights is usurpation prevented. We exited that territory a few new deals ago. It’s time to start going over the text without skipping parts.

19 thoughts on “2nd amendment penumbras”

  1. Just to get the ball rolling on the restrictions, I fully agree that any MOSC that has to do with launching nuclear weapons is not part of the militia.

    Carry on.

  2. Since the Militia was (and still is legally) all adult males and they are individuals (not a private army) the right to keep arms (by the people) and to bear them not just store them is pretty clear. The security of a free state is also almost always neglected by commentators. A free state governed by Constitutionally elected officials is always at risk from a upstart king or president for life. Only a popular militia unfettered by arms locked in the town armory can assure this. The writers of the Constitution knew that at Lexington and Concord 15,000 militia had mobilized within hours to surround Boston. This semi organized force was to be assured of continued existence as a strong counter to any abusive government. The right to self defense against criminals and Indians was always implicit in this. Today any significant civilian force armed with efficient semi automatic rifles is a serious threat to an internal enemy if ever that occurs.

    On an unrelated note to the Chicagoboyz readers: While watching the Weather channel, I noticed that they now are always referring to non-southern states in the middle of the country as the “Midwest”. When I grew up in Chicago, we stopped the Midwest at Iowa/Minnesota/Kansas and the rest of the states before the Rockies were the Plains.
    Do any of you notice this as well?

  3. I would suggest Remini’s biography of Andrew Jackson as a good place to start. The militia was Jackson’s base. They hated the elitist Federalists and their presidents. It came to a head with the “corrupt bargain” of 1824. That event was not so different from the recent election although it remains to be seen whether the consequences will be similar.

    It was the “militia,” the uncouth followers of Jackson, who invaded the White House and made it the “people’s house” again. I don’t know if the newspapers of the time were all in Quincy Adams’ corner but I wouldn’t be surprised. It’s amazing how history repeats itself.

  4. To refocus, the point of this post is what other military MOSC are proper for a militia and implicitly included in the protections afforded by the 2nd amendment? Get beyond guns. Does the militia get to have an intelligence branch?

  5. Well, first, this is the law on the books right now:

    10 USC § 311 – Militia: composition and classes
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    This statute is a slightly revised version of laws that have been on the books since the 1st congress.

    Second, Bob Owens wrote an excellent article at pjmedia analyzing the what being in the militia means for ownership of arms:

    For ‘A Well-Regulated Militia,’ What Firearms, Gear, and Skills Should You Own?
    Posted By Bob Owens On December 20, 2012

    “a modern contemporary militia would want to be equipped with the following:

    an AR-15 rifle or carbine, with iron sights or optics
    at least four but preferably seven or more 30-round magazines
    a chest rig or bandolier for carrying loaded magazines
    a constantly maintained reserve of 1,000 rounds of full-metal jacket (FMJ) ammunition for training and service use if called upon
    appropriate seasonal clothing
    a first aid kit (preferably an individual first aid kid, or IFAK)
    food, water, and temporary shelter for three days”

    * * *

    “Ideally, citizens should be able to use AR-15s or comparable arms to demonstrate proficiency at 100 yards, 200 yards, 300 yards, and 400 yards … Such training … ensures a level of firearms proficiency among the general population that serves the deterrent effect the Founders intended: to dissuade the undermining of the republic by enemies ‘foreign and domestic. The thought of engaging a nation with tens of millions of self-equipped riflemen capable of decimating government forces from nearly a quarter-mile away is chilling to any would-be tyrant.”

    Owens makes the point that the AR-15 in its military versions with full auto and burst modes (the M-14 and the M-4) has been the standard rifle of the US military for a half century. It should not be banned. It should be mandatory.

  6. TM,

    since you started your post out with an interesting term “the gun lobby” I am curious about just what you think the NRA is ? They most certainly are not “the gun lobby” … Who are you talking about ?

    And by the way plenty of folks have discussed the meaning the the first portion of the 2nd Amendment … you must have missed this discussions … the consensus seemed to be that “militia” as used by the founders meant all able bodied citizens of a certain age …

    MOS designations didn’t exist 200 years ago …

  7. As I understand it, briefly, the Founding Fathers had four entities in mind when they thought about a militia. In the colonies, militias had been in existence for more than 100 years by then, going back to the 1500s in England. The militia’s role was the defend against whatever was threatening: brigands, pirates, Spaniards, French, Indians, French AND Indians and finally the British. North America was a dangerous neighborhood. Maybe not as bad as Englewood, but…
    The degree of the threat somewhat defined the various groups.
    First was some sort of standing army, although that notion did not have universal approval. Second was the standing army’s reserve force made up of veterans and others. Still iffy.
    Third was the local militia, males 17 to 45 or so (it varied) with some sort of affiliation with whatever state they were in. The basic model for Lexington and Concord. It is interesting to recall that amongst the stores hidden were artillery-cannon, shot and powder.
    Lastly there was everybody else, fully a militia of the whole, to be used when things just turned God-awful. Every male was expected to fight. Everyone.
    Needless to say, this system worked a lot better in cozy New England than it did on the frontier.

  8. Robert Schwartz – At the very best, this gives you a force at the level of the Republican Guard of Iraq and it is unlikely to do even that. Ponder how the militia is to gain the capability of, let’s say Blue Force Tracker and you might get where I’m coming from that we need to look at the other MOSC categories.

    JeffC – I’m really trying to bypass the gun issue per se. Pick your own definition and lay it out. I’ll be happy to go along with yours for our discussion. And if you have some nice links as to what a modern militia would look like in an era of APT cyber assaults, jihad brigades, and our own governments who actively attempt to shut down corporal works of mercy, I’d be happy to read them. Where are they?

    Chris – The Founders were quite happy to found a country under the happy shiny new dispensation of Westphalia. Today Westphalianism is on its last legs and we’ve extended place beyond physical to presence on logical networks. The threat picture has radically changed since the last time the american people seriously examined the concept of militias. What is needed is more than just trigger pullers and a framework for their action needs to be settled. This conversation is about extending the 2nd amendment *after* the liberals give up on gun control.

  9. TM Lutas: “any MOSC that has to do with launching nuclear weapons is not part of the militia. ”

    Clearly “the people” is distinct from the federal government. “The people” referred to are any subset of citizens represented by state governments, private organizations, and individuals. Therefore the constitution does allow for ownership of all weapons, not just small arms, by all those entities. It may not be sensible, it may be absurd, but there it is.

    The problem is that there is a fear of tackling thorny problems and our governance approaches problems and thinks in terms of expediency and ease of solution. There is a mechanism to solve the perceived restriction problem. If the problem is that the right of weapons ownership is too widespread and also that those weapons may be of too much power then amend the the law, amend the constitution. If it is too much trouble to amend the document then the problem must not be important enough and STFU.

    The constitution is a flexible document if the issue is important enough; it’s inflexible when the issue is seen as arbitrary or unimportant to “the people”. We have to try to be a nation of laws else we’re lost.

  10. Cris – I don’t know Englewood. Do they have many Aztlan types over there?

    Tyouth – The post is about getting beyond the core 2nd amendment argument because, guess what, we’re winning. The pro-individual rights view is winning. The pro-gun ownership view is winning. The needle is moving and will likely continue to move. The question I’m raising is what comes after you’ve finished the work on defining and protecting the core right. Is there a limiting principle? There better be, at least as much of one as the 1st amendment has. What is it? That’s not so clear.

    Sometimes it helps to tackle a thorny problem by approaching it from a different angle. The military categorizes its personnel according to this MOSC system (and a couple of other, related ones available at the link). By approaching this as a job description question, you turn the issue into something that is comprehensible to even confirmed civilian types. Going down a checklist and saying yes or no to a job type as being appropriate for the militia is simple enough and gives a baseline that we can all start from in fleshing out the penumbras. Let me give you an example. The military runs its own court system including its own prisons and the guards there have a certain MOSC. Could the militia run its own prison system, complete with its own guards? That’s very non-traditional. But do we not do it because it’s a leftover habit, a bad idea as a matter of policy, or does the 2nd amendment not cover that?

  11. TM – I don’t think your question is relevant. There are by law (and common understanding going back to the Framers) two militias – the organized militia, which is essentially the collective National Guards, and the unorganized militia, which is that part of the militia not enrolled in the organized militia.

    The organized militia, which is designed to fit seamlessly with the formal military, has MOSs out the wazoo. In fact, MOSs are almost the definition of organization. The unorganized militia, on the other hand, would neither have nor need such things.

    Asking what sort of MOSs should be applied to the unorganized militia strikes me as asking that since both houses and cars are enclosures for humans, what sort of basements should cars have?

    Apples and oranges.

  12. George Lee – I understand the impulse and for a selective armed force that’s not a bad attitude. The question I’m raising is whether everybody’s only MOS should be infantryman ( 11B ). In the case of the militia, which is the whole of the people, I’m not even sure if everyone an infantryman even make sense. You can get good desk work out of a paraplegic, but not so much in terms of an infantryman.

    Bill Quick – I started down this road because in IT, which is my field, you get to see attacks coming in on a fairly regular basis and not all of it is criminal. Some of it is actual foreign states and non-state actors that get a military level response. You’re right that formal MOS labels would be unnecessary. I’d add that they would also be creepy and expensive to maintain. But as a thought experiment to determine what the legal system should allow as actions of the unorganized militia, I think that ticking through the MOS roles and saying, yea or nea a member of the unorganized militia should be able to undertake this role as part of the penumbra of the 2nd amendment, well that is a useful exercise that allows you to leverage the professional thought that went into creating the best military on the planet and reuse it to improve our milita legal code to modernize and update it without having to go through an expensive reinvention of the wheel.

    And to go with your analogy, the basement of a car is generally called the trunk, if its a sedan, or “the back” if it’s a minivan or station wagon. The role is similar, though the name is different. That’s what I expect that we’ll end up with if we were to, as a nation, go through the exercise I’m talking about.

  13. An even more daring gambit Mr Lutas.

    Escalation makes you a man after my own heart.

    Daring because “penumbras” are not normally a friend of Liberty.

    I do not think you will beat them at their own game of governance by “manipulating procedural outcomes” [please note that is our actual governance, Mr Tyouth] but I applaud your daring effort. At the very least it kicks the ball to their side of the field. Which of course has the danger of allowing them to organize a drive from a center of the enemies of Liberty strength – legalism.

    OTOH I hold that legalism is the desperate hope of bespectled tyranny..this would indeed bewitch and befuddle them. For a time.

    So again, Bravo.

  14. VSSC – As a spoiling attack, I’ve been telling leftists that they ought to be ashamed of themselves and that they have blood on their hands for decades now. Communists hate that. Penumbras are actually fairly tame in comparison.

    You need to understand that legalism is only a friend of the left so long as the left can drown ordinary people in complexity. IT has well established methods for handling that sort of complexity. Law firms will dump trucks filled with documents, relevant and irrelevant on the last possible day they can and the opposite law firm has to quickly digest the information and find the relevant few sheets that win their case. Government oversight efforts do not deploy this technology so far as I can tell because it would be in their interest to crowd source certain aspects of the task and they simply aren’t asking. Once it becomes routine for this sort of technology to be deployed as well as its cousin technologies in the analytics field legalism will no longer serve the left well and bricks of cash in the freezer will become even more prominent features of Democrat party politics.

    I do confess that I don’t understand what you mean by escalation.

  15. “Cris – I don’t know Englewood. Do they have many Aztlan types over there?”

    Just the ones in sales and tech support.

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