constitutionTwo of the most common constitutional misunderstandings we receive by email here at the Tenth Amendment Center are:

1. The General Welfare clause of the preamble authorizes the federal government to enact all kinds of programs – including health care, environmental controls, and the like.

2. The National Guard is not the militia. The militia is all people and our right to bear arms cannot be infringed.

While most readers of this blog can easily see the problems in the first (the general welfare clause and the preamble are two entirely different things, for example), the 2nd is more nuanced and difficult to understand.

People who make this argument generally do so because of an incorrect reading of the 2nd amendment. They believe that if they accept that the national guard is fulfilling the role of “militia” as per article 1, section 8, then gun ownership can be restricted to those in the guard only. Why? Because the language of the 2nd amendment, which reads:

“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.”

For years, people who are in favor of national gun control laws, have twisted the plain meaning of the 2nd amendment and claimed that the founders intended only for militia members to have the right to keep and bear arms, and because the militia is now the Guard, only those people can actually own guns.

This is wholly incorrect – as it doesn’t matter who can be called forth to national duty, the federal government was not given the power to regulate or control gun ownership in any way. Those who argue the 2nd in such a manner – AND – those who argue about the national guard in such a manner are doing the same thing – empowering the federal government to control gun ownership by people not in the “militia.”

“Militia” at the time of the founding was understood as all able-bodied males. And, at the same time, Congress (In article I, Section 8, Clauses 15 and 16 of the Constitution) was empowered to organize that militia as a citizen military force that could be “called forth” in three specific instances only.

In 1792 and 95 – Congress did just that with the Militia acts, and basically “organized” the entire male population to be “called forth” in response to an invasion.

In 1903, when Congress passed the Dick Act, congress again “provided for” the organization of the militia when the inappropriately-named national guard was formed.

What does that mean? In fulfilling a duty put forth by Article I, Section 8, Clauses 15 and 16 of the Constitution, Congress has reduced the number of people that can, in effect, be forcibly called into national duty to those serving in each state’s national guard. While not in active national duty, those guard troops are still under the control of the governor of each state. They function as the organized “militia” as per Article I, Section 8 of the Constitution.

And – this has NO bearing, whatsoever, on federal interference with your right to keep and bear arms. They can’t do anything of the sort, whether you’re in the guard or not.

Making the standard argument is actually arguing for federal gun control – since the militia didn’t include women in 1792, that means such an argument is giving the federal government the power to restrict the right to keep and bear arms from women. This is incorrect.

This common argument is little more than falling into a trap – of accepting more centralized power.

Michael Boldin

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