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Scholarship Highlight: New Drafts on Gun Centricity and Military Power

By on October 6, 2021 Categories: ,

A few new articles have been recently posted on SSRN that raise questions concerning firearms law and the Second Amendment, including about how gun-centric case law & theory distorts Second Amendment doctrine and how the Constitution describes and prescribes military power of the United States.

From the Abstract:

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia v. Heller constitutionalized a policy area far broader than most appreciate, one that involves not only guns but various other weapons. The Article then shows how litigation fails to reflect that breadth. Guns are just one category of “arms” that most Americans choose not to own or carry for self-defense, but guns alone saturate Second Amendment case law. Non-gun arms are out of view when judges establish and apply Second Amendment doctrine. The Article contends that this gun-centricity, by obscuring the ways Americans exercise post-Heller Second Amendment rights, has led judges to exaggerate burdens, misread history, and espouse short-sighted doctrine to implement the right to keep and bear arms. More generally, the Second Amendment case study in this Article exposes litigation circumstances that create a heightened risk of such distortion and proposes possible solutions.

From the Abstract:

The Constitution provides for two kinds of military land forces—armies and militia. Commentators and judges generally differentiate the armies from the militia based upon federalism. They consider the constitutional “armies” to be the federal land forces, and the constitutional “militia” to be state land forces—essentially state armies. And the general consensus is that the militia has largely disappeared as an institution because of twentieth-century reforms that brought state National Guards under the control of the federal Armed Forces.

The belief in the militia’s disappearance has sowed confusion. Many courts and scholars now believe that the right to bear arms no longer has any significant relevance for maintaining a well-regulated militia or for collective self-defense. This is because they understand the modern militia to be the National Guard, which is armed and regulated by the federal government. Courts also struggle to define the constitutional “militia” consistently. The same courts will identify the militia to be the National Guard in a military case but all people capable of bearing arms in a Second Amendment case. And unable to distinguish between constitutional armies and militia, courts have struggled to demarcate the constitutional limits of Congress’s power to subject reserve and retired members of the Armed Forces to the Uniform Code of Military Justice.

This Article argues that this confusion has resulted from settling on an erroneous understanding of the militia as an institution. At the Framing, the critical distinction between “armies” and “militia” had to do with professionalism, not federalism. Armies comprised soldiers for whom military service was their principal occupation, while the militia comprised individuals who were subject to military service only on a part-time or emergency basis. Put differently, the armies were the regular forces, while the militia was the citizen army.

From these definitions, this article then provides a better translation of the Framing-era military system to the structure of the modern Armed Forces. Today, the constitutional “armies” now consist of the regular non-naval forces, including the regular army and the regular air force. The modern “militia” includes all other persons who perform, or could be called to perform, military service on a part-time or emergency basis. As during the Framing, the militia can be further divided into volunteer and reserve components. The modern volunteer militia includes the actively drilling members of the Armed Forces Reserve and National Guard. The modern general militia is now housed in the non-drilling Armed Forces Reserve (e.g., Individual Ready Reserve and Standby Reserve) and in the mass of people registered with the Selective Service System. Far from rendering the militia extinct, the modern Armed Forces perpetuates the Constitution’s dual-military structure of armies and militia—of regular forces and citizen-soldiers.