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Dispelling the Myth of the Second Amendment

Summary: Contrary to widespread mythology about the right to keep and bear arms, private militias are not authorized under federal or state law, are not protected by the Second Amendment, and are unlawful in every state.

  • Mary McCord Mary B. McCord
Published: June 29, 2021

This essay is part of the series Protests, Insur­rec­tion, and the Second Amend­ment

ABSTRACT: The insur­rec­tion at the U.S. Capitol on Janu­ary 6, 2021, culmin­ated a year of increas­ing private mili­tia engage­ment with the public — some­times in forcible oppos­i­tion to govern­ment policies or, in the case of Janu­ary 6, in an attempt to “stop the steal,” and some­times in supposed augment­a­tion of law enforce­ment’s role to provide protec­tion for persons and prop­erty against what the mili­tias deemed “viol­ent anarch­ists.” These groups, often dressed in milit­ary uniforms, armed with semi-auto­matic assault rifles, and bear­ing a full accoutre­ment of milit­ary gear, pose a threat to public safety, stifle the consti­tu­tional rights of others, and under­mine our demo­cracy.

Why have such private para­mil­it­ary organ­iz­a­tions gone largely unchal­lenged? The answer lies in part in the wide­spread myth­o­logy that they are protec­ted by the Second Amend­ment, a myth­o­logy promoted by those who attempt to rewrite history to support an insur­rec­tion­ist view of the Second Amend­ment. But this view is not suppor­ted by history, the text of the Second Amend­ment, or its inter­pret­a­tion by the Supreme Court. Far from enabling private mili­tias to be a check on a tyran­nical govern­ment, as modern private mili­tia members would have us believe, the founders inten­ded the mili­tia — all able-bodied men avail­able to be called forth by the governor in defense of the state — to be subor­din­ate to and governed by the state. Indeed, as this essay explains, private mili­tias are not author­ized under federal or state law, are not protec­ted by the Second Amend­ment, and are unlaw­ful in every state.