As I explained in our eventual amicus brief to the Supreme Court, D.C.’s argument was belied by the provisions of the Militia Act of 1792, a piece of legislation that defined “militia” as all able-bodied male citizens from eighteen to forty-five.
Interestingly, a version of the Militia Act still exists today. Title 10, section 246 of the U.S. Code today provides: “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
Furthermore, by statute, there are two “classes of the militia”: “the organized militia, which consists of the National Guard and the Naval Militia,” and “the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.” Thus, as a matter of law, if you’re an able-bodied man between the ages of seventeen and forty-five, you’re a member of the militia whether you know it or not!
All of this was widely understood by the Constitution’s Framers—and by the American Founding–era generation more generally. Remember, we were just a few years removed from the Revolutionary War, in which armed American colonists defeated the British Army (the mightiest military on the face of the planet) and won our independence. The Framers considered British rule to have become tyrannical, and the ability of the people to fight back is what preserved our Liberty and created our Nation. Here’s how Alexander Hamilton put it in Federalist No. 29:
… if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.
That check on government power would be meaningless if government had the power simply to disarm the citizenry. That’s why the Second Amendment prohibits doing so.
Often, when trying to understand the meaning of constitutional provisions, courts will look to the actions of the early Congress, which was populated by many of the original drafters of the Constitution. Legally, what matters is not the subjective intent of the Framers, but rather what the publicly understood meaning of the terms was at the time they were adopted.
The Bill of Rights was ratified in 1791. The very next year, Congress passed the first recorded gun legislation in our history. The Militia Act of 1792 did not prohibit or restrict the private ownership of guns; to the contrary, the statute mandated that every able-bodied adult male must own a flintlock musket and twenty bullets apiece.
Ours was a newly formed country, fresh off the heels of a revolution. And the Framers understood that an armed populace could not be easily subjugated to tyranny. Again to quote the great Justice Story, the Second Amendment “offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
Justice Story understood that the men who drafted the Bill of Rights were heavily influenced by the evolution of individual rights in the English constitutional tradition. In particular, the Framers were heavily influenced by the English Bill of Rights of 1689, which provided that English Protestants “may have arms for their defence suitable to their conditions and as allowed by law.”
The great English lawyer Sir William Blackstone, who had a profound impact on the Framers, later explained in his famous 1765 Commentaries that the right of “having” arms is among the five basic rights of every Englishman, essential to securing the “primary rights” of each individual.
That the Framers viewed the right to keep and bear arms as one of the fundamental rights of Americans is demonstrated by the fact that they enshrined its protection in the Second Amendment.
After we filed our brief in the D.C. Circuit, I called the solicitor general for the District of Columbia to inform him that Texas and the other amici states were going to be asking the court of appeals for oral argument time. My fellow solicitor general became angry, yelling at me over the phone, “What the hell business does Texas have interfering with the laws of the District of Columbia?”
I responded to him that the decision in this case—the decision by the D.C. Circuit—would set a national precedent that could impact every state and would be especially influential as to how similar cases were resolved in other courts of appeal across the country. The rulings of the D.C. Circuit, sometimes called the nation’s second-highest court, are not binding outside of D.C., but they have historically been highly influential for federal courts across the country. The Second Amendment rights of everyone else across the country would be profoundly impacted by the D.C. Circuit’s decision. And the decision of the D.C. Circuit would be very important for how the Supreme Court ultimately resolved the issue upon final appeal.
I also explained to the District of Columbia solicitor general that my boss, the Texas attorney general, believed he had an obligation to defend the Second Amendment rights of every Texan—and the D.C. Circuit’s decision could directly impact those rights. And, I explained with a smile, I didn’t need the
