Dearly, in the sense of expensively departed Justice Scalia left us with a reading of the second amendment that violates his own principle of originalism. Here’s why.
The origins of a militia in the England go back to the Anglo-Saxon period, when every landholder had an obligation to provide troops, a militia, for the use of his (almost always a “he” in this context) thane, whose recruitment of soldiers was to be in support of his (again, in this context almost always a “he”) sovereign king. According to the Domesday Book, such recruited militia personnel should expect to serve for two months.
After the Norman Conquest, by the 13th century, all men were subject to being recruited to become part of their lords’ militia, presumably in support of the needs of the sovereign king although of course there were times when the ambitions of an earl or duke made the militia part of a force against the monarch. Despite such exceptions, the local magnate’s obligation was to provide a militia in support of the monarch. In fact, the lord of the manor was expected to provide arms and training for his villeins, and was given the power to choose which of his tenants would be recruited for the militia. We see perversions of such practices in the way Falstaff recruits soldiers in Shakespeare’s Second Part of Henry IV. Such recruits would become part of the monarch’s military force.
That practice continued into the seventeenth century and became the standard for the English colonies in the New World. Repeatedly in the course of the colonialist vs. Native American and the English vs. Spanish or French struggles of the seventeenth and eighteenth centuries, both on the North American continent and on the islands of the Caribbean and elsewhere in the western hemisphere, it was a militia recruited from the citizenry that became the military response to actual or perceived threats.
As readers of Jane Austen, among other novelists, will recognize, in Britain itself, after the Act of Union of 1707, the militia continued to be a force recruited and trained by local magnates to serve the needs of the crown. Their strutting and fretting is so enchanting that many a young woman ends up like Lydia Bennet in Pride and Prejudice.
Why “militia” rather than “army”? The plain matter of fact is that there was no standing army in England at least through the Civil Wars of the seventeenth century. Even after that, after the Restoration of 1660, the idea that the monarch would have a standing army was just not tolerated—before his deposition in 1688, James II did keep some six or seven regiments, to be sure, but they were called “the king’s guard,” not an army.
The absence of a standing army derives from the idea that each of the peers of the realm considered himself to be sort of sovereign in his own territory, and a standing army controlled by the monarch would make the monarch far too powerful. The cost to the national treasury of maintaining a standing army was also a major consideration. For those, among other reasons, the training of the people in a “well-regulated militia” was part of the English and of the English colonial landscape from the eighth century all the way through the early nineteenth century.
So at the time of the writing or the second amendment, “militia” in the colonies meant the populace, trained in preparation for service to the sovereign—in Britain, the king; in the nascent United States, the Constitution. Service by a militia was a concept derived from English/British practices, in short. No standing army meant that the populace as a whole had to be trained in being potential soldiers. In a modified form, the twenty-first century counterpart to be “well trained militia” is the National Guard.
No comments:
Post a Comment