This article was reproduced with permission from The Sovereign
Citizen, the publication of the Institute for American Values at
It is an edited transcript of comments by Dr. Richard E. Morgan,
William Nelson Cromwell Professor of Government at Bowdoin College, the
principal presenter on November 15, 1995 at an IAV symposium entitled,
"Distrust of Government from the Edges -- Militias, Hate Groups, etc:
What Should Be the Prudent Response?"
Joining him was Michael Hubbard, Special Investigator, Committee on
Judiciary of the US Senate. Also scheduled to appear was Michael Janofsky,
reporter for the New York Times, who was detained in Washington.
Leaders of the Massachusetts Militia were in the symposium audience.
I'm delighted to be here. I'm not sure I'm delighted to be here on this
subject -- only time will tell. I have two slender qualifications, I think, that
suggested me to Bob for this evening's panel.
As Bob's told you, back in the late seventies I worked on domestic security
issues. That was a time, you will recall, of great concern and scandal over
"abuses" by the intelligence community, and attention to what, in particular,
the Federal Bureau of Investigation was doing in keeping watch on the
violence-prone political fringes in America. We went through, in these years,
something like a great debate over what restraints should operate on the FBI in
collecting "domestic intelligence." Later in my checkered career I came to have
some involvement, very small, with second amendment issues, questions of
militias, and questions of the right to bear arms. And as Bob mentioned to you,
my main work over the years has been with first amendment issues. So I come to
you as a person from constitutional studies with some little expertise, although
dated, in matters of domestic security. I would like to make five points. I will
try to make them briefly, and we'll see what it is that people would really like
to talk about.
"FBI guidelines on domestic terrorism are over-restrictive -- there
are ample arguments for increasing American domestic security capabilities."
In my work on domestic security, I suppose I became known as
a law enforcement hawk. I was one of those who thought that America overreacted
to the so-called scandals of the mid-1970s, and that restraints were put in
place on American domestic antiterrorism operations which were unwise. I think,
specifically, that the successive sets of FBI guidelines with respect to
domestic terrorism, are over-restrictive; therefore, I would welcome new
domestic anti-terrorism legislation. I don't think there are major
constitutional constraints in the way of more effective FBI collection of
We can return to any of these issues; we can parse some of the leading
Supreme Court decisions on this matter; but I will quote, very briefly, from the
last piece that I wrote on domestic security operations in the early 1980s:
"It is often difficult to distinguish clearly among the
constitution, constitutional law, and constitutional bluster. Much of the
Civil Liberties sloganizing deployed in depth by opponents of domestic
intelligence in the mid-1970s loses force when the decisions and traditions
The rebuilding of which I spoke in 1982 was never
satisfactorily completed. As I wrote in a letter to the New York
Times after the Oklahoma City bombing last spring, there are still
today ample arguments for increasing American domestic security
capabilities. And by the way, I have a small record, but one that I am proud
of, of having said since the 1970s that violence-prone groups on the right of
the American political spectrum were likely to be a source of serious problems
over the latter part of the century. I think that's proved out.
"But it is also true that much remains 'up for grabs' in the arena of
constitutional politics. This arena is dominated by groups and individuals who
are instinctively suspicious of domestic intelligence operations.
"We are still in the process of rebuilding capabilities and correcting
overreactions of the 1970s. Constitutional considerations must be central to
the process, for there are forces waiting in the wings to exploit any
"At the end of the day, few things are of greater importance to a society
than sustaining the sure expectations of apprehension of and retribution for
those who resort to violence as a mode of political expression. The
Constitution of the United States restrains, but does not preclude our doing
this. It is part of our responsibility to keep it that way."
"The formations today styling themselves militia can claim no
constitutional protection from the militia clause of the second amendment or
And now I move from this old work that I did on domestic
security to this bit of work that I have done in the second amendment area.
The militias, our subject this evening, can draw no protection or comfort, I
think, from the militia clause of the second amendment: "A well regulated
militia being the best guarantee of a free state."
"Militia," in the American tradition, is a term that has meant a number of
different things. In its pristine, eighteenth-century sense of "the militia at
large," the term meant all male citizens between sixteen and sixty. It's
virtually indistinguishable from the citizenry. However, organized militias,
militias drawn together as military formations for particular purposes, have
always been appurtenances of government. If one looks, for instance, at militias
of the Revolutionary period, or the militias that were called upon in the first
couple of decades of our national existence (called upon, by the way, with often
poor military results, which is one reason that the militia tradition petered
out in American history), what we find is that those militias were creatures of
the state government. The commissions of officers of the militias were within
the gift of the governors of the states. These were governmentally-directed
formations; these were not private armies; these were not political clubs.
These formations did have political character, and if one goes back and looks
at the militia tradition, the militia was one of the great participatory
institutions in American republican theory -- in the political theory that
shaped our origins. The jury, the election, the militia, these were important
ways in which the people would keep government honest; but the militias, as they
came together for military purposes, were instruments of government -- and
the formations today, the political groupings, styling themselves militia, can
claim no constitutional protection from the militia clause of the second
amendment, or indeed, from the militia clauses that still exist in some state
constitutions. (Many state constitutions, interestingly, have dropped any
reference to the militia, but have kept the right to bear arms, a point not
without significance in second amendment scholarship.)
I make these first two points defensively, to establish that no one ever
accused me of being soft on antiterrorism intelligence gathering or soft on the
radical right. But...
"There is an unambiguous individual right to bear arms which is not
subsidiary to the militia clause. If one takes the second amendment right to
bear arms seriously, then any strategy of generally disarming the population
is simply not on."
There is a right of the people to keep and bear arms.
Considerable scholarly work has been done on that language over the past fifteen
years. Interestingly enough, up until about fifteen years ago, the time when gun
control became a hot issue in American society, there had been almost no
scholarship on the second amendment. Now we have a lot, and the unambiguous
conclusion of that scholarship is that there is an individual right to bear
arms. That is, the right is not subsidiary to the militia clause.
Now I can unpack that, or not unpack that, at whatever length would interest
you or bore you. If you, for instance, sit down at your computer and run a Lexis
search, that is a search of the legal literature on the second amendment, you
will find that the vast majority of law review articles published on the
second amendment in the past ten years affirm that it is an individual
guarantee. This position has become known as the "standard model," one that
most people agree upon, [though] very few people any longer adhere to -- [as
opposed to] what's often called the "corporate right" or the "states' right"
theory of the second amendment.
Why do I go into this at length? Because if one takes the second amendment
right to bear arms seriously, as I think one must, then any strategy of
generally disarming the population in order to neutralize and/or disperse
political groups that have weapons, and/or behave toward those weapons in ways
that we consider threatening, or even bizarre, is simply not on.
All sorts of gun control can be carried out consistent with the second
amendment, but disarming the population cannot. To do that, one would either
have to amend the Constitution, or -- in the most cynical fashion -- ignore it.
After all, the second amendment speaks of the right of the people. That's the
same people referred to in the first amendment; it's the same people referred to
in the fourth amendment -- the same people who have a right be secure in their
houses, persons and effects against unreasonable searches and seizures. This is
not optional. Therefore, whatever law enforcement measures or legislative
initiatives one considers, must, I think, proceed with an eye on the second
Beyond that, of course, and this is so obvious that I will not dwell on it,
there are constitutional rights of speech and association implicated in keeping
watch on the militias. And while I certainly would favor sustained
law-enforcement scrutiny of groups that combine vaulting political rhetoric with
even veiled invocations of violence and actual possession of arms, let it be
said that right now they appear to be engaging in perfectly protected freedom of
speech, and perfectly protected assembly to petition the government for redress
"In the wake of the Los Angeles riots, the establishment interpreted
the event for us, saying that the outburst was inappropriate but that it was
important to understand what motivated those people. So where's the media
inquiry into what's bothering the militia people? Where's the invitation to
even minimal sympathy?"
Number four is this. I find the establishment reaction to
the militias more than usually troubling. By the establishment, I mean that
interlocking set of media, academic, and/or government elites that tell us what
to think. I mean the "chattering classes" -- the people like us who have been to
the right schools, wear the right clothes and write for the right (that is left)
publications. That's why I'm sorry our friend from the New York
Times couldn't be here this evening, because, of course, I was going to
use his publication as the premiere example of what I mean by the establishment
reaction. The establishment reaction to the militias is more worrisome than the
militias, in the following way.
When in the wake of the Los Angeles riots, the establishment interpreted the
event for us, it went something like this: "This outburst was inappropriate and
cannot be tolerated or encouraged. On the other hand, it is necessary to
understand the source of the rage; it is important to appreciate the
long-standing grievances that surfaced there. Illegal, yes; but is also
important to understand what motivates these people."
In the case of the militia, there has been no attempt to understand. "Their
behavior is bizarre, it's inappropriate," and that's the end. Where's the
inquiry as to what's bothering these people? Where's the invitation to even
minimal sympathy? They're not to be sympathized with: "They're kooks! They're
whackos! They're off the chart! Over the edge!"
What we're seeing, I think, in the militia phenomenon is a particularly
visible outcropping of a larger national reaction. This involves a rethinking of
the dramatic growth and intrusiveness of the federal government, in particular
-- and government, in general -- in the lives of Americans over the last forty
years or so.
These forty years saw a real overreach on the part of the national
government. It was not the New Deal, but the explosion of regulation from the
mid-1960s which has resulted in a degree of governmental intrusion and control,
which runs counter to the main axes or principles of the American political
tradition. We have experienced a growth of national power that has made a joke
of the theory of enumerated powers in the Constitution.
There has been a concomitant growth of state governments during this same
period, all of which draws decisional power away from local government -- away
from the place where people can really participate. And that has contributed, I
think, not only to a discomfort, but a real cynicism, alienation, and now
bitterness. I'm not justifying the bitterness, but I'm asking for a modicum of
sympathy as to why it is there.
"If the Court would simply affirm the second amendment right, they
could defuse the ugly, gnawing concern that the federal government will
undertake a general disarming of the American population."
Fifth And Last Point
What might help? Two things, one general and one
First, the general prescription; it is what's talked about today as
"devolution." That is a modest, not revolutionary, but serious movement back
toward the traditional distribution of power in the American political order --
devolving power from Washington to the state capitals, and in turn from the
capitals to the localities.
Second, and more specifically, (this will really get me in trouble!) an
affirmation by the Supreme Court of the right to bear arms as an individual
right, and the extension of that right to the states. Those of you who have
had your Con Law course know that the second amendment is one of the few
provisions of the Bill of Rights which has not been extended by the Supreme
Court to the states. The Court has sedulously avoided, as a matter of fact,
providing much of a gloss at all on the second amendment.
I make this point, with a certain tremor in my voice. As Bob Fischer knows,
my politics are perhaps best described as neo-antifederalist. I don't usually
want to extend federal controls, especially federal judicial controls, against
the states. But in this case, the historical evidence is overwhelming that the
Reconstruction Congress that framed the fourteenth amendment intended the right
to bear arms to be one of the things that was extended to the states. If the
Court would affirm the second amendment right and extend it to the states, I
think this would go some distance toward defusing what is one of the ugly,
gnawing concerns out there in the country which fuels the militia movement: the
strong suspicion that the federal government will, sooner rather than later,
undertake a general disarming of the American population.
Such action by the Court would not preclude a whole variety of gun control
measures. One of the more annoying habits of the gun lobby is to meet every
suggested firearms regulation brandishing the second amendment. (They're almost
as bad as the press, you know, with the first amendment.)
You can do a lot of regulating within a sensible interpretation of the right
to keep and bear arms, but such a decision would, as I suggested, go some way to
quelling, to quieting, an anxiety out in the country -- an anxiety that is not
without some foundation. People listen to Charlie Schumer on the tube talking
about the evils of firearms ownership. Can we altogether condemn them if
specters of confiscation leap into their minds?
And who was it? Who was that genius, (probably some Ph.D. from the Rand
Corporation) who decided a year or so ago, that it would be a good idea to find
out what American soldiers would do if ordered to participate in a confiscation?
So let's do a little survey, and ask them what they would do, and would they
fire on American citizens, if necessary, in that process. And before cooler
heads prevailed at the Department of Defense and throttled this thing, they
actually surveyed some Marines at Camp Pendleton, who bravely answered that they
would obey orders. "Mess with the Best and Die Like the Rest." Of course this
was a silly little incident that should never have happened.
But we have had a lot of "incidents" of late -- and against the background of
the major constitutional deformation that has taken place in the second half of
the twentieth century, the anxieties that fuel the militia movement grow and
The Institute for American Values sponsors symposia on political science
issues at Nichols College in Dudley Hill, Massachusetts. The IAV can be
contacted by calling (508) 943-1560.