ABOUT THE 2ND AMENDMENT, WHAT IS THE “MILITIA” AND THE “FREE STATE”, AND TRUMP’S ABILITY TO FEDERALIZE THE NATIONAL GUARD WHEN ALREADY ACTIVATED BY A STATE GOVERNOR
by Anne P. Mitchell, Esq.
“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.” – full text of the Second Amendment
I’ve been thinking about this a lot this past week, given the events in Minnesota. I’ve discussed it with smart colleagues, and I’ve dug into the historical background. The “right of the people to keep and bear Arms” part gets a lot of attention, the “militia” part a bit less, and, relatively speaking, the “a free State” almost none at all.
Here are the questions that have been running around my head, triggered by the overarching question “Can Trump federalize the Minnesota National Guard now that Governor Walz has activated it?”
First, to answer that question, yes, he can, *technically*, take the action of federalizing the already-activated Minnesota National Guard troops, however whether he can do so legally is an entirely different question. An analogy would be that if you leave your car running, unlocked, while you run into the store, someone *can* steal it, but they can’t do so legally. So the question is whether Trump can *legally* steal the Minnesota National Guard out from under Governor Walz. And in my opinion, and in my analysis, the answer to that question is “No.”
I arrived at this answer by first asking whether the modern National Guard legally qualifies as “the militia”.
To answer that, I looked directly to the National Guard itself, which says in the relevant page on its website:
“We recognize December 13th as the birthday of the National Guard. On this date in 1636, the first militia regiments in North America were organized in Massachusetts. Based upon an order of the Massachusetts Bay Colony’s General Court, the colony’s militia was organized into three permanent regiments to better defend the colony. Today, the descendants of these first regiments – the 181st Infantry, the 182nd Infantry, the 101st Field Artillery, and the 101st Engineer Battalion of the Massachusetts Army National Guard – share the distinction of being the oldest units in the U.S. military. December 13, 1636, thus marks the beginning of the organized militia, and the birth of the National Guard’s oldest organized units is symbolic of the founding of all the state, territory, and District of Columbia militias that collectively make up today’s National Guard.” [1] (Links at bottom of article.)
Heck, even the Heritage Foundation agrees (they will probably do a spit-take when they see me using their words *against* this fluster-cuck that they hath wrought) when they say, on a page on their site discussing the Second Amendment, that “Under federal law, the citizenry is divided into two subsets: the “organized militia,” composed of the National Guard, and the “unorganized militia,” composed of all able-bodied males between the ages of 17 and 45.” [2]
The next question was “What is the purpose of the now-activated militia (i.e. the Minnesota National Guard)”?
This goes directly to the question of “What is ‘a free State’,” because the militia is supposed to protect the security of that free State – it’s right there in the Second Amendment.
As it happens, while some constitutional experts and scholars suggest that the “State” in the Second Amendment means the country as a whole, the general consensus is that it means each individual state, and further, that it is meant as a hedge against despotism and tyranny over the states *by the Federal government*. Remember that the founders had just come out of a bloody, devastating war to gain freedom from a king – they absolutely wanted to make sure that no king happened in our newborn country.
As Jeffrey Rosen, President of the National Constitution Center explains, “This is referring immediately to ‘state’ as in one of the states of the original colonies. James Madison had the 1777 Virginia Declaration of Rights by his side when he wrote the Bill of Rights and he essentially copied and pasted language from it.” [3] Rosen is referring to §13 of the Virginia Declaration of Rights, which says “That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” [4]
Another section of the National Constitution Center which deals with the Second Amendment, and which actually is primarily about handgun bans, explains that “The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia. This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.” [5]
This would be almost laughable today, if it weren’t so serious, and potentially relevant.
More to the point, our Federal government’s own website explains that the Second Amendment was created during a time that “fears remained during the ratification debates that these provisions of the Constitution gave too much power to the federal government AND WERE DANGEROUS TO LIBERTY.” [6] (Emphasis mine.)
In a somewhat lengthy passage, also on our Federal government’s website, on the page explaining the background of the Second Amendment (remember, this is on the website of the very Federal government – our Federal government – that is threatening right now to deploy its standing army against its citizens) it explains (in this context “Civil power” means the power of the elected legislatures of the individual states):
—
“The Declaration of Independence listed as grievances against King George III that he had “affected to render the Military independent of and superior to the Civil power” and had “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” Following the Revolutionary War, several states codified constitutional arms-bearing rights in contexts that echoed these concerns – for instance, Article XIII of the Pennsylvania Declaration of Rights of 1776 read:
‘That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.’
Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:
‘The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.” [7]
—
Let us also not forget that our most founding of founding documents, again the Declaration of Independence, which, while not law, *is* a document which informs, says:
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.” [8]
PUTTING IT ALL TOGETHER:
“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.”
Putting this all together, with respect to the particular issue of whether Trump can federalize and steal the already-activated Minnesota National Guard away from Governor Walz, I believe that there is a solid, legal, Constitutional case that he cannot.
The National Guard (the “militia”) has been called up to ensure the security of Minnesota (a “free State”) *against* the Federal government (ICE and CBP). It would be an absurd result to say that the tyrant can simply remove the very thing standing between him and the free state which he is threatening. Absurd and, I would argue, a violation of our Second Amendment.
Put another way:
A well regulated Minnesota National Guard, being necessary to the security of Minnesota, has been activated for the very purpose that the framers contemplated: the security of the state from the despotism and tyranny of a Federal government gone amok.
Now, reasonable minds can differ about the above, that’s the reason that if Trump goes in that direction there will be a lawsuit. There are rarely lawsuits where things are cut and dried and no alternative interpretation is possible.
But I’d bet that Governor Walz has entertained this interpretation.
Anne P. Mitchell is an Internet law and policy attorney, author of Federal law, and law professor and dean emeritus. She is the author of Notes from the Front on Substack.
Links:
1. https://www.nationalguard.mil/About-the-Guard/How-We-Began/
2. https://www.heritage.org/the-essential-second-amendment/the-well-regulated-militia
3. https://constitutioncenter.org/images/uploads/news/CNN_Aug_11.pdf
4. https://embed.documentcloud.org/documents/3010374-Virginia-Declaration/?mode=document&embed=1#document/p3/a313533
5. https://constitutioncenter.org/the-constitution/amendments/amendment-ii/interpretations/99
6 & 7. https://constitution.congress.gov/browse/essay/amdt2-2/ALDE_00013262/
8. https://www.archives.gov/founding-docs/declaration-transcript
Source