Magazine article Insight on the News
Constitution Scholars Divided over Issues of Self-Defense
Private militias or mercenary armies appear to have no special legal standing under the Constitution, according to legal experts, government officials and, most importantly, Supreme Court justices. A senior federal official familiar with says it rejects the claim of any group that cites the "well-regulated militia" phrase in the Second Amendment to support the formation of private armies: Militias only can be authorized by federal or state governments.
The Clinton administration's position is supported by Nelson Lund, a law professor at George Mason University who served President Bush as deputy White House counsel. Today, a "well-regulated militia" refers to groups such as the National Guard, he says. that have formed in almost all 50 states "have no standing as militias under the Constitution."
Lund cites Presser vs. Illinois, an 1886 case in which the Supreme Court ruled that certain private activist groups had no right to conduct paramilitary exercises in Illinois. The court rejected the claim that the Second Amendment - which states "the right of the people to keep and bear arms" - invalidated an Illinois statute that prohibited "any body of men whatever, other than the regular organized volunteer militia of this state, and the troops of the United States ... to drill or parade with arms in any city or town of this state without the license of the governor thereof."
However, the law is murky in the area of self-defense against government oppression, Lund says. While private citizens do not have constitutional protection to operate as statesanctioned military organizations, he argues, they are legally entitled under the First and Second amendments to assemble peaceably and practice with firearms. "If they're going out and playing soldiers in the woods, I don't know that there's any law [against it]."
Numerous Supreme Court decisions have upheld individuals' rights to keep and bear arms under the Second Amendment, a point Chief Justice William H. Rehnquist emphasized in a 1990 opinion in which he noted that the high court often has recognized the rights of "the people. …