The Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of Independent State Militias

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ABSTRACT

The term "militia" is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias' substantial evolution over four centuries.

Historically, militia simply refers to a broad-based civic duty to protect one's fel-low citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia's true meaning and purpose-and re invigorating in-dependent state militias in the United States to effect that purpose-has the potential to address states' emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. This Article suggests a method for how best to reinvigorate independent state militias, addresses the major critique against doing so, and initiates a real discussion about the future of state militias-an issue conspicuously underdeveloped in scholarship today.

INTRODUCTION. 1023

I. THE ORIGIN, NATURE, EVOLUTION, AND EFFICACY OF STATE MILITIAS. 1024

A. State Militia Duty Obligations and Affected Citizens... 1024

1. Early American Militias Derived from European Militias and Imported Similar Concepts of Militia Duty. 1024

2. State Militia Duty Was Imposed on a Broad Swath of Citizens, but Not All.... 1026

3. Militia Duty Initially Was Mandatory, but State Militias Later Embraced Actual or De Facto Volunteer Models....1026

B. State Militias and Government.......1029

1. Militias' Unique Relationship to Government Arises from the Colonizing Agencies' Need for Militias....1029

2. Early State Militias Enjoyed Flexibility To Specialize Their Forces To Maximize Efficiency and Effectiveness... 1030

3. The Constitution and the Militia Act of 1792 Provide Limited National Control over State Militia Members..... 1031

4. Additional Federal Laws Cement the National Government's Actual or De Facto Control over All State Militias. 1033

C. Core Functions of State Militias. 1037

1. Domestic Defense. 1037

2. Domestic Security and Emergency Response. 1043

3. Check on Government Overreaching and Tyranny. 1047

D. General Observations. 1052

II. ADDRESSING THE INITIAL LEGAL QUESTIONS ABOUT REINVIGORATED INDEPENDENT STATE MILITIAS: THE COLLECTIVIST CIVIC-REPUBLICAN CRITIQUE AND STATE CONSTITUTIONS. 1052

A. The Civic-Republican Critique. 1053

1. Historically, State Militias Have Not Been Universal; Nevertheless, They Have Provided Broader and More Undivided Representation of Citizen Interests than Professional Alternatives. 1053

2. Historical Militias Were Not Universally Virtuous-Some Members Avoided Their Duty Altogether; Others Performed Poorly. 1057

3. Reinvigorated State Militias Can Rely on Citizens To Provide Their Own Arms. 1061

4. The Civic-Republican Critique Correctly Favors Open, Flexible, Inclusive State Militias, but This Presents No Obstacle to Reinvigorated State Militias. 1062

B. State Constitutions and Militia as an Individual Duty. 1063

1. Militias Were Created To Enable Specialization, Flexibility, and Rapid Response to Community Concerns, Which Goals Cannot Be Accomplished Through a Pure Collective-Duty Approach. 1064

2. Militia Duty Historically Respected Militia Members' Authority To Reject Government Calls for Action When They Believed That Government Action Exceeded Its Authority, Which Is Inconsistent with a Purely Collective Duty. 1065

3. State Constitutions Support the Conclusion That Militia Duty Is Individual, Not Collective. 1066

III. HOW REINVIGORATED INDEPENDENT STATE MILITIAS COULD HELP ADDRESS EMERGING DOMESTIC-SECURITY AND EMERGENCY-RESPONSE NEEDS AND RECALIBRATE FEDERALISM. 1068

A. The National Guard and Domestic Defense. 1068

B. States' Emerging Domestic-Security and Emergency-Response Needs. 1069

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