If The Government Won’t Do It...

Mackubin T. Owens

November 1, 2002

An Arizona newspaper has proposed an interesting way to curb illegal immigration during a time of war: the use of a citizen militia. Last month, according to the November 15 Arizona Daily Star, Cochise County’s Tombstone Tumbleweed published an editorial entitled “Enough is Enough!” calling for armed, able-bodied citizens, operating on private property, to “create a presence and a deterrent to illegal border crossers.”

Predictably, the proposal was attacked by “human-rights” activists as a manifestation of “militant vigilantism.” According to Isabel Garcia of Tucson, “to have the official newspaper of [Cochise County] call on people to take up arms is very dangerous, very frightening. Law enforcement and public officials should be concerned.” Imagine! Armed citizens, protecting their homes! Absolutely shocking!

But really, if the federal government can’t or won’t do the job, why not rely on the posse comitatus and the militia? The Tumbleweed has the Constitution on its side. Indeed, the Founders framed the Second Amendment with such an armed citizenry in mind.

That amendment reads, “A well-regulated Militia being necessary to the security of a free state, the right of the People to keep and bear arms shall not be infringed.” Obviously, gun-control advocates see the Second Amendment as a stumbling block to their schemes to disarm the American citizenry, so they purposely have misconstrued it. They have done so by claiming that because of the preparatory clause, the amendment guarantees only a “collective,” not an individual, right to bear arms, thereby restricting it to members of the organized “militia” (or the police and military).

But over the past decade, constitutional-law scholarship has refuted this view. A recent case in point is Leonard Levy, a constitutional scholar with impeccable liberal credentials, who in his book, Origins of the Bill of Rights, demonstrates beyond the shadow of a doubt that the framers of the first ten amendments intended to guarantee the individual right to bear arms.

How could this strained interpretation of the Second Amendment ever have been taken seriously in the first place? All one has to do is consult the words of the Founders themselves. “No free man shall ever be debarred the use of guns,” wrote Thomas Jefferson in his proposed Virginia Constitution of 1776. Both the Pennsylvania and Vermont constitutions assert that “the people have a right to bear arms for the defense of themselves and the state. . . .”

So what is the meaning of the reference to the militia? For the Founders, the militia arose from the posse comitatus, the “power of the county” constituted by the people as a whole, embodying the Anglo-American idea that the citizenry is the best enforcer of the law. From its origins in Britain, the posse comitatus was understood to be the people at large, constituting the constabulary of the “shire.” When order was threatened, the “shire-reeve” or sheriff would raise the “hue and cry” and all citizens who heard it were bound to render assistance in apprehending a criminal or maintaining order. In this tradition, the sheriff in the American West would “raise a posse” to capture a lawbreaker.

“A militia when properly formed,” wrote Richard Henry Lee in his Letters From the Federal Farmer, “are in fact the people themselves . . . and include all men capable of bearing arms.” This view was echoed on countless occasions during the colonial, revolutionary, and founding periods.

The Founders did not fear an armed citizenry. Indeed, they saw the Second Amendment and the militia as a means not only to enable citizens to protect themselves against their fellows, but also to protect themselves from oppression by the federal government. “The militia is our ultimate safety,” said Patrick Henry during the Virginia ratifying convention. “We can have no security without it. The great object is that every man be armed. . . . Every one who is able may have a gun.”

The Tumbleweed editorial reflects the spirit of the Founders. According to Chris Simcox, publisher and editor of the paper, citizens have a patriotic obligation during a time of war to “stop the flood of [illegal] immigrants funneling through Cochise County,” especially in light of the federal government’s failure to do so. “We want local people, we don’t want the Rambos, the mercenaries and soldiers of fortune.” There is nothing wrong with the Cochise County sheriff deputizing the posse comitatus to curb lawbreaking—the violation of U.S. immigration laws.

It is indeed unfortunate that, because of the actions of certain extremists, “militia” has become a term of opprobrium. It should be rehabilitated. The Tombstone Tumbleweed’s modest proposal is a good start.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.