TM Lutas

Edit: Ugh, what was I thinking. I haven’t gotten a post this wrong this decade. I reread Heller, which I apparently desperately needed. Mea culpa. I’ll leave this up as penance, and a reminder that I can be a great fool.

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If you start from zero on the gun debate, a curious fact emerges. The right to arms is recognized in federal and state law as a military right in the form of milita membership via the unorganized militia. Militas are generally limited to men and only up to age 45 or so. So why don’t gun controllers go after the right to bear arms of those who are not covered? Women’s gun rights are only protected under the penumbra of the 2nd amendment. So why have women’s right to bear arms not been put under any specific pressure by the gun control crowd? Common sense and a little thought explains why attempts to control guns like this simply aren’t done and modern case law on this point is rarer than 3rd amendment case law. The ladies need their weapons to defend against both stranger attack and to equalize matters when boyfriend turns to ex-boyfriend stalker. Those over 45 have similar issues.

Those excluded from militia statutes have, theoretically, less protection of their right to bear arms, yet in practice this weakness of protection is never exploited. How did a 2nd amendment penumbra manage to grow up as custom without ever having gone through the judicial process.

Perhaps there have been relevant cases that I missed. Please educate me in comments.

Edit: I should have made clear in the text, and I manifestly did not, that the right to bear arms is a basic human right held by just about everybody that precedes constitutions and laws and is not limited to military service. That pretty much was the point of Heller, that bearing arms is an individual right.

This makes the article something of an exercise in looking at it from the other side’s viewpoint and still finding the gun controller position incoherent. The problem of Miller’s ruling against sawed off shotguns still stands.

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.