- Jay Janner/AP Photos
- A guy who thinks the military is going to overtake Texas
The recent order by the governor to the Texas State Guard to keep an eye on U.S. Army maneuvers in the vicinity should be contemplated by serious Chicagoans with a twinge of envy. Illinois doesn’t have a state guard. A pity.
The important thing to know about the Texas State Guard is that unlike a national guard—which Illinois does have, as does Texas—the state guard can’t be federalized. It’s the governor’s plaything, meaning it’s perfect for indulging friends and contributors who want someone to salute them and call them “colonel.” But it’s also a paragon of constitutional rigor.
Here’s my thinking. The inscrutable Second Amendment, as we all know, provides that “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.”
There’s no denying “shall not be infringed” has a categorical ring to it, while the business about a well-regulated militia sounds like an important qualifier. When Justice Antonin Scalia in 2008 wrote the majority opinion in District of Columbia v. Heller, holding that the average Joe has a constitutional right to a loaded gun (in the District of Columbia, that is, but the Supreme Court would soon extend this right to everybody), Scalia needed to square this circle. He needed to counter the impression that the militia spoken of in the Second Amendment represents some sort of important contingency.
So he pointed out “the ‘militia’ in colonial America consisted of a subset of ‘the people’—those who were male, able bodied, and within a certain age range.” The militia wasn’t something you signed up for; it was a a duty of citizenship. Whenever tyranny threatened, you would muster at arms—perhaps to serve the king (who at this point had become the president), perhaps to oppose him. As for “well regulated”—that didn’t mean under the jurisdiction of some higher authority. Scalia explained it “implies nothing more than the imposition of proper discipline and training.”
He had a tricky case to make but he made it well. (Read his opinion for yourself.) Along the way, Scalia conceded ground it would have been too much trouble to defend. For instance, he endorsed “longstanding prohibitions” on the possession of firearms by felons and the mentally ill, and in schools and government buildings. He accepted the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,'” such as sawed-off shotguns or machine guns. He even conceded that handguns can be regulated, even if an “absolute prohibition” is unconstitutional. Imagine freedom of speech being so hedged in by qualifiers! Gun owners who insist they have even more rights coming have a point.
And Scalia conceded that “the degree of fit” between the first clause of the Second Amendment and the second clause isn’t what it used to be. “It may well be true today,” his opinion concluded, “that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.” What’s more, a case can be made that “the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” Nevertheless, Scalia said in conclusion, “it is not the role of this Court to pronounce the Second Amendment extinct.”
Instead, to the horror of the gun-control lobby, he pronounced it livelier than ever.
Here’s what I’m thinking. Anyone who misses the gun-control laws that the Supreme Court in recent years struck down will get nowhere petulantly insisting Scalia and the court got it wrong. Assume they got it right. Assume the “fit” between the first and second clauses of the Second Amendment isn’t what it used to be, but that until the amendment’s rewritten the court will interpret it to mean what they insist the Founding Fathers wanted it to mean.
The fit may be a loose one, but surely the tighter the fit is between the first clause and the second when the amendment’s applied, the more likely the court will be to smile on the application. The Illinois National Guard, which consists of 13,000 volunteers, is almost completely sustained by federal dollars, and it can be federalized at a stroke of the president’s pen. It’s clearly not what Scalia believes the founding fathers had in mind when they spoke of a “well regulated militia.” Yet the Illinois Constitution, ratified in 1970, defines militia exactly as Scalia did. Says Article II, Section I, “The State militia consists of all able-bodied persons residing in the State except those exempted by law.”
So let’s say Illinois, like Texas, maintained a state guard entirely unyoked to Washington. And let’s say Illinois made it clear this state guard was Illinois’s attempt to provide a “well regulated” militia. And in its diligent attempt to create this well-regulated force, it required any able-bodied citizen who received a gun permit—someone already a member of the state militia, after all—to belong to the state guard, with all the privileges and responsibilities thereof. Could the fit between clause one and clause two be any tighter?
And once these gun owners were in the guard, the governor could call them out each spring to pile sandbags on levees, or send them on sweeps through state forests tracking reports of UFOs. As a hedge against federal incursions such as Jade Helm 15, they could be shaped into an elite trip-wire regiment of armed militiamen stationed permanently just beyond the gates of Great Lakes.
They’d do so much good. The only catch is we might have to call them “colonel.”