Document Type
Article
Subject Area
Special Section
Abstract
Despite their many disagreements about how to interpret it, courts and commentators agree the Second Amendment of the United States Constitution favors the militia. Some think the Second Amendment protects an individual right to keep and bear arms so citizens can better defend themselves and their country. Others think the right pertains only to active service in a militia that has been called into public service. But what if they all got it backwards? What if the Second Amendment, instead of empowering the militia, aims to check and balance it? On this countermilitia reading, the Second Amendment begins by apologizing for, “a well regulated Militia being, necessary to the security of a free State,” and concludes by promising, as a remedy for the dangers of wayward militias, “the right of the people to keep and bear Arms, shall not be infringed.” Though a mirror image of the usual approach, the counter-militia interpretation hews to a straightforward reading of the text and better accords with the Constitution’s structure. The counter-militia interpretation finds support in originalism, too, because it comports with the view, popular among those who ratified the Bill of Rights, that disciplined bodies of armed men cannot be trusted to respect individual liberties. It likewise agrees with the widespread belief, founded on the bitter experience of ex-slaves and inspiring ratification of the 14th Amendment, that badly regulated militias imperil fundamental human rights. Precedent, however, says nothing about the counter-militia Second Amendment. No courts and almost no commentators have considered this alternative to the usual interpretation, much less put it to use. Embracing the counter-militia Second Amendment might have a bracing effect on firearms law in the United States, requiring the right to keep and bear arms reach far enough to ensure a capable defense against militias gone wrong. Application of the counter-militia Second Amendment against state governments, via incorporation, would have a similar effect. Whether that would represent sage public policy or reflect contemporary public opinion goes unanswered here. This Article offers the counter-militia Second Amendment as the best interpretation of the constitutional text, not as the most familiar or comforting one.
DOI
10.59643/1942-9916.1517
Rights
Copyright © 2025 by the WYOMING LAW REVIEW unless otherwise noted. Except as otherwise provided, copies of any article may be made for classroom use, provided that: (1) Copies are distributed at or below cost; (2) The author and the journal are identified; (3) Proper notice of copyright is affixed to each copy, and (4) The WYOMING LAW REVIEW is notified of the use.
Recommended Citation
Bell, Tom W.
(2025)
"The Counter-Militia Second Amendment,"
Wyoming Law Review: Vol. 25:
No.
1, Article 7.
Available at:
https://scholarship.law.uwyo.edu/wlr/vol25/iss1/7