The Times Australia
The Times World News

.

Why the Second Amendment protects a 'well-regulated militia' but not a private citizen militia

  • Written by Eliga Gould, Professor of History, University of New Hampshire

When a federal judge in California struck down the state’s 32-year-old ban on assault weapons[1] in early June 2021, he added a volatile new issue to the gun-rights debate.

The ruling, by U.S. District Court Judge Roger Benitez, does not take effect immediately, because California has 30 days to appeal[2] the rejection of its assault weapons ban. Most coverage has focused on Benitez’s provocative analogy between an AR-15 and a Swiss army knife[3]. But the case raises troubling questions about the meaning and proper role of “militias” under the Second Amendment.

The plaintiffs in the lawsuit claimed that California’s assault weapons ban unconstitutionally restricted citizens’ Second Amendment rights[4] by preventing them from using assault weapons for home defense and other legal purposes. California’s defense was that assault weapons are more dangerous[5] than other firearms and therefore subject to additional restrictions.

In his ruling, Benitez asserts that citizens have a right to own a private assault weapon not just for defense of a gun owner’s home, but also for “citizens’ militias[6]” engaged in homeland defense.

If the founders were alive today, I believe they would be very concerned – because the Constitution is clear that the only militias protected by the Second Amendment are “well-regulated” units authorized and controlled by state governments, not a private citizen militia[7].

People wearing camouflage, face masks and helmets stand with weapons These armed, camouflage-clad people at a protest in 2021 say they are part of a militia group, but not one sponsored by a state government. Joseph Prezioso/AFP via Getty Images[8]

Starting from a precedent

The preamble to the Second Amendment mentions service in a militia as a reason citizens have the right to keep and bear arms: “A well regulated Militia[9], being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

In his ruling, Benitez builds on the 2008 Supreme Court case D.C. v. Heller[10]. In that landmark case, the Supreme Court held, as Justice Antonin Scalia wrote, that the amendment protects a right to possess a firearm unconnected to military service and that individuals are free to use such weapons for “traditionally lawful purposes[11], such as self-defense within the home.”

Benitez accepts this individual right, including to own assault weapons, but he adds what he calls “citizen militias” to the mix, which he defines as an “informal assembly of able-bodied, ordinary citizens acting in concert for the security of our nation.” The AR-15, he says, is an “ideal arm[12]” for such purposes.

While distinguishing a citizen militia from a “state-organized militia[13],” the judge is vague about what, exactly, a citizen militia is. The examples he offers include the armed partisans[14] led by Fidel Castro, Ho Chi Minh, and the Taliban and Iraqi insurgents. Although Benitez surely knows that the United States has a long history of vigilantism[15] and mob violence, he doesn’t say which informal groups of armed citizens in this country might qualify and which would not.

That lack of specificity is a problem. Does a citizen militia include the protesters who occupied the Michigan State Capitol[16] during the spring of 2020, posing with assault weapons slung over their shoulders? What about the activists who in the summer of 2020 briefly created Seattle’s Capitol Hill autonomous zone[17], where guards armed with AR-15s stood watch at the entrance and patrolled the streets? Kyle Rittenhouse[18], on trial for killing two people with a Smith & Wesson rifle in Kenosha, Wisconsin, allegedly viewed himself as part of a militia[19] and claimed to be helping the police.

Government-authorized groups only

The biggest problem with Benitez’s ruling is that the Second Amendment sanctions a “well-regulated militia,” not an informal assembly of armed citizens[20]. As the founders knew, a “well-regulated militia” was one authorized, trained and – with growing frequency during the American Revolution – armed and provisioned by state governments.

After the American Revolution, the purpose of these state militias was clearly laid out in Article I, Section 8, Clause 15 of the Constitution: so Congress could use them to “execute the laws of the union, suppress insurrections, and repel invasions[21].”

Today, the militia in all 50 states is the National Guard[22]. In California, as Benitez notes in his opinion, the militia also includes the State Guard, a force trained and equipped by the government[23]. There is nothing informal about it.

An illustration of British redcoats firing into a civilian crowd After the Boston Massacre, American Colonial leaders feared mob violence. Paul Revere, from Metropolitan Museum of Art, via Wikimedia Commons[24]

Avoiding mob rule

Having lived through the Revolutionary War, the founders knew why the words “well regulated” mattered. They had seen what happened when people took the law into their own hands.

After the Boston Massacre in 1770, when British soldiers opened fire on a crowd that had been pelting them with rocks and ice, John Adams defended the soldiers during their murder trial, worried that a guilty verdict could lead to mob rule[25].

In 1775, the Colonial Minutemen who stood their ground at Lexington and Concord served in units authorized by the Massachusetts legislature. Although taking up arms against their king and his soldiers, they fought as members of a well-regulated militia[26].

Men on horses review columns of troops President George Washington, at center on white horse, reviews troops in Maryland before marching to suppress the Whiskey Rebellion. Metropolitan Museum of Art, via Wikimedia Commons[27]

Naturally, not all early Americans accepted such distinctions. During the so-called Whiskey Rebellion from 1791 to 1794, which occurred after the Constitution and Second Amendment had been ratified, armed insurgents near Pittsburgh[28] forcibly resisted a new federal tax on distilled spirits, mustering in military-style formations, tarring and feathering federal excise officers, and threatening secession. President George Washington responded in 1794 by marching west at the head of 12,950 federalized state militiamen[29]. By the time the Western Army reached the Ohio River, most of the rebels had gone home. The nation’s first president made clear that in a democratic republic, the way to make your voice heard is through the ballot box, not the muzzle of a gun.

The right to own a gun is “not unlimited[30],” as Justice Scalia wrote in 2008. For that reason, the Supreme Court held that state and federal authorities can bar firearms from schools and public buildings, while the people remain free to prohibit what Scalia called “dangerous and unusual weapons[31].”

The AR-15 may no longer be unusual, but California’s decision to appeal Benitez’s ruling[32] shows that the state still thinks it is dangerous[33]. If the rifle really is Benitez’s “ideal” weapon for a citizen militia, then perhaps the state is right.

[Insight, in your inbox each day. You can get it with The Conversation’s email newsletter[34].]

References

  1. ^ struck down the state’s 32-year-old ban on assault weapons (www.saf.org)
  2. ^ 30 days to appeal (oag.ca.gov)
  3. ^ AR-15 and a Swiss army knife (www.washingtonpost.com)
  4. ^ unconstitutionally restricted citizens’ Second Amendment rights (www.nytimes.com)
  5. ^ dangerous (storage.courtlistener.com)
  6. ^ citizens’ militias (www.saf.org)
  7. ^ not a private citizen militia (repository.law.uic.edu)
  8. ^ Joseph Prezioso/AFP via Getty Images (www.gettyimages.com)
  9. ^ A well regulated Militia (constitution.congress.gov)
  10. ^ D.C. v. Heller (www.oyez.org)
  11. ^ traditionally lawful purposes (www.supremecourt.gov)
  12. ^ ideal arm (www.saf.org)
  13. ^ state-organized militia (www.saf.org)
  14. ^ armed partisans (www.saf.org)
  15. ^ long history of vigilantism (theconversation.com)
  16. ^ protesters who occupied the Michigan State Capitol (www.businessinsider.com)
  17. ^ Capitol Hill autonomous zone (www.kuow.org)
  18. ^ Kyle Rittenhouse (www.cnn.com)
  19. ^ allegedly viewed himself as part of a militia (www.jsonline.com)
  20. ^ not an informal assembly of armed citizens (reason.com)
  21. ^ execute the laws of the union, suppress insurrections, and repel invasions (constitution.congress.gov)
  22. ^ National Guard (reason.com)
  23. ^ trained and equipped by the government (calguard.ca.gov)
  24. ^ Paul Revere, from Metropolitan Museum of Art, via Wikimedia Commons (commons.wikimedia.org)
  25. ^ lead to mob rule (www.hup.harvard.edu)
  26. ^ fought as members of a well-regulated militia (www.tahlequahdailypress.com)
  27. ^ Metropolitan Museum of Art, via Wikimedia Commons (commons.wikimedia.org)
  28. ^ armed insurgents near Pittsburgh (www.history.com)
  29. ^ at the head of 12,950 federalized state militiamen (www.mountvernon.org)
  30. ^ not unlimited (www.supremecourt.gov)
  31. ^ dangerous and unusual weapons (www.supremecourt.gov)
  32. ^ California’s decision to appeal Benitez’s ruling (www.seattletimes.com)
  33. ^ state still thinks it is dangerous (www.npr.org)
  34. ^ You can get it with The Conversation’s email newsletter (theconversation.com)

Read more https://theconversation.com/why-the-second-amendment-protects-a-well-regulated-militia-but-not-a-private-citizen-militia-162489

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

The Role of Your GP in Creating a Chronic Disease Management Plan That Works

Living with a long-term condition, whether that is diabetes, asthma, arthritis or heart disease, means making hundreds of small decisions every day. You plan your diet against m...

Troubleshooting Flickering Lights: A Comprehensive Guide for Homeowners

Image by rawpixel.com on Freepik Effectively addressing flickering lights in your home is more than just a matter of convenience; it's a pivotal aspect of both home safety and en...

My shins hurt after running. Could it be shin splints?

If you’ve started running for the first time, started again after a break, or your workout is more intense, you might have felt it. A dull, nagging ache down your shins after...

Metal Roof Replacement Cost Per Square Metre in 2025: A Comprehensive Guide for Australian Homeowners

In recent years, the trend of installing metal roofs has surged across Australia. With their reputation for being both robust and visually appealing, it's easy to understand thei...

Why You’re Always Adjusting Your Bra — and What to Do Instead

Image by freepik It starts with a gentle tug, then a subtle shift, and before you know it, you're adjusting your bra again — in the middle of work, at dinner, even on the couch. I...

How to Tell If Your Eyes Are Working Harder Than They Should Be

Image by freepik Most of us take our vision for granted—until it starts to let us down. Whether it's squinting at your phone, rubbing your eyes at the end of the day, or feeling ...