Simone Lawson
The question of whether militias are protected by the Constitution is a complex one, with critics and sympathisers of the private militia movement likely to be disappointed by the conclusions. While the individual right to bear arms offers important protection to at least some activities of private militia members, full-scale preparation for a military confrontation with the government is not protected by the Second Amendment. Interestingly, it is the First Amendment that may provide the most effective means to protect militias against intrusive state regulation. The Constitution commits organising and providing for the militia to Congress, which has statutorily shared this authority with the Executive, precluding the Judiciary from exercising oversight over the process.
| Characteristics | Values |
|---|---|
| Private militias are protected by | The Second Amendment |
| Private militias are not protected by | The Second Amendment |
| The right to bear arms offers protection to | At least some activities of private militia members |
| The right to bear arms does not offer protection to | Activities which include full-scale preparation for a military confrontation with the government |
| The First Amendment may provide protection to militias against | Intrusive state regulation |
| Congress has the authority to | Organise and provide for the militia |
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What You'll Learn
The Second Amendment
Private militias may point to the Second Amendment when protesting their government, but former Acting Assistant Attorney General for National Security at the Department of Justice Mary McCord says they are not constitutionally protected. As McCord writes in *The New York Times*, these armed groups have no authority to call themselves forth into militia service.
A less obvious irony of the militia debate is that the First Amendment may provide the most effective means to protect militias against intrusive state regulation. Because the Constitution commits organising and providing for the militia to Congress, and Congress has statutorily shared this authority with the Executive, the Judiciary is precluded from exercising oversight over the process.
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The First Amendment
While the Second Amendment is often cited by militias, former Acting Assistant Attorney General for National Security at the Department of Justice Mary McCord says they are not constitutionally protected. As McCord writes in *The New York Times*, these armed groups have no authority to call themselves forth into militia service. However, the individual right to bear arms does offer important protection to at least some activities of private militia members.
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Congress's power to organise militias
The Second Amendment provides some protection to private militias, as it guarantees the individual right to bear arms. However, this does not extend to full-scale preparation for a military confrontation with the government. The First Amendment may be more effective in protecting militias against intrusive state regulation.
Congress has the power to organise militias under the Constitution. This authority has been statutorily shared with the Executive, which precludes the Judiciary from exercising oversight over the process. However, wrongs committed by troops are subject to judicial relief in damages.
The National Guard, for example, falls under the authority of Congress, with military and civilian personnel considered state rather than federal employees. This means that the Federal Government is not liable under the Federal Tort Claims Act for their negligence.
While Congress has the primary authority to organise militias, the Second Amendment does provide some protection to private militias. This includes the right to bear arms, which is an important protection for at least some activities of private militia members. However, it is important to note that private militias are not constitutionally protected and do not have the authority to call themselves forth into militia service.
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The individual right to bear arms
The Second Amendment is often cited by private militias when protesting their government. However, former Acting Assistant Attorney General for National Security at the Department of Justice, Mary McCord, argues that these armed groups have no authority to call themselves forth into militia service and are therefore not constitutionally protected.
The Constitution commits the organising and providing for the militia to Congress, which has statutorily shared this authority with the Executive. This precludes the Judiciary from exercising oversight over the process, although wrongs committed by troops are subject to judicial relief in damages.
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The limits of state regulatory power
The First Amendment may provide the most effective means to protect militias against intrusive state regulation. This is because the Constitution commits organising and providing for the militia to Congress, and Congress has statutorily shared this authority with the Executive, precluding the Judiciary from exercising oversight over the process.
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Frequently asked questions
The Second Amendment protects the individual right to bear arms, which offers important protection to at least some activities of private militia members.
The Second Amendment states that the right to bear arms is protected.
The Second Amendment does not protect activities that include full-scale preparation for a military confrontation with the government.
The First Amendment may provide the most effective means to protect militias against intrusive state regulation.
Congress is responsible for organising and providing for militias, and has shared this authority with the Executive.
