THE SECOND AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES: PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA A Master Thesis Submitted to the Faculty of American Public University System by Deano L. McNeil, Sr. In Partial Fulfillment of the Requirements for the Degree of Master of Public Administration January 2015 American Public University System Charles Town, WV PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 2 The author hereby grants the American Public University System the right to display these contents for educational purposes. The author assumes total responsibility for meeting the requirements set by United States copyright law for the inclusion of any materials that are not the author’s creation or in the public domain. © Copyright 2015 by Deano L. McNeil, Sr. All rights reserved. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 3 DEDICATION This thesis paper is dedicated first and foremost to my wife. Without her support, encouragement, insights, and tolerance, I would have never been able to realize this accomplishment in my life. This paper is also dedicated to the men and women who, without fanfare, and with minimal financial and material support and recognition, serve our great nation as members of the various state defense forces and naval militia in the United States, and to the men and women who serve as members of the National Guard. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 4 ACKNOWLEDGMENTS I would like to acknowledge the faculty of American Military University for the quality instruction that they have provided to me during my tenure at this institution. To say that my knowledge base and perspective has expanded as a result of their influence and interaction would be an understatement. Specifically, I would like to offer my warmest thanks to my faculty advisor for this thesis paper, Dr. Christi Bartman. Her guidance and insight was critical as I struggled to take a concept in my head that lacked definition and focus, and refine it into a topic having academic value that I am proud to present to others. I would also like to acknowledge my leaders, past and present, who I have served with in the Ohio Military Reserve. Their knowledge and understanding of the concept of the militia provided me with the foundation for my growing interest in this particular subject. Finally, I would like to acknowledge former Ohio Military Reserve Captain Michael Gates. Captain Gates was perhaps not the most understood or appreciated person who wore the uniform of the Ohio Military Reserve; however, it would be difficult for any person to argue against the fact that PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 5 there are very few individuals who know the history and understand the historical perspective of the militia better Captain Gates, particularly as it pertains to the militia of the State of Ohio. Very few people have done more to preserve and protect that history. PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 6 ABSTRACT OF THE THESIS THE SECOND AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES: PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA by Deano L. McNeil, Sr. American Public University System, January 11, 2015 Charles Town, West Virginia Professor Christi Bartman, Thesis Professor Through the examination of historical records and events, through the examination of the political thought of the Founding Fathers, and through the examination of the documents of the Revolutionary War period, the author will attempt to provide evidence that the purpose of the Second Amendment is to codify the individual right to bear arms, to be used for the purposes of defense of self and of the state; that the militia is made up of the citizenry and that the citizens are the ultimate defense against tyrannical government; and that the government, both state and federal, have a vested interest in the regulation, training, and utilization of the militia. This paper also discusses contemporary militia issues, state defense forces, and naval militia. Based on the findings established through research that was conducted, a proposal for a model policy for the establishment, regulation, and discipline of contemporary militia organizations will be offered. Finally, a number of areas where future research and legal study regarding the Second Amendment and militia in the United States will be proposed . PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 7 TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION ...................................................................................................................... 9 II. LITERATURE REVIEW..........................................................................................................10 III. CONCEPTUAL FRAMEWORK............................................................................................13 IV. METHODOLOGY................................................................................................................. 14 V. DISCUSSION ......................................................................................................................... 16 What is the Militia? ................................................................................................................. 16 The Well-Regulated Militia...................................................................................................... 26 The National Guard.................................................................................................................. 30 State Defense Forces................................................................................................................ 31 Naval Militia............................................................................................................................ 37 Model Public Policy For Organization Of The Militia.............................................................39 Conclusions and Basis for Further Research............................................................................46 VII. LIST OF REFERENCES ..................................................................................................... 51 PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 8 LIST OF FIGURES FIGURE PAGE 1. States With Active State Defense Forces and Naval Militia.................................................... 34 2. State Military Justice Systems ..................................................................................................40 3. Age for Militia Service Under State Law .................................................................................42 4. Provision in State Law for a State Defense Force and Whether Force is Active .....................45 PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 9 "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 (Transcript of the Bill of Rights, 1789)." - The Second Amendment to the Constitution of the United States. The Second Amendment to the Constitution of the United States of America establishes one of the fundamental and inalienable rights of citizenship bestowed upon us, a right to the possession of arms. Its inclusion in the Bill of Rights by our Founding Fathers does much to underscore just how significant this right is to our nation. However, as important as this right is to our citizens, it has been an equal source of controversy and confusion, particularly regarding the gun control debate. Both sides of the gun control debate attempt to use, or perhaps even misuse, this amendment to provide strength to their respective positions on how much or how little gun regulation and legislation that there should be, or even whether the right to bear arms is an individual right or a collective one. However, it is not the purpose of this paper to argue the merits or disadvantages of gun control, although the findings of this thesis could help to define and shape the gun control debate. Instead, the purpose of this thesis is to define two more fundamentally important concepts that significantly affect how the Second Amendment should be interpreted. The first concept that must be addressed is actually defining of who and what the militia is. The second concept that must be addressed is to provide a description of just what is a well-regulated militia is, or rather to describe what the regulatory structure of the militia should be. A portion of this thesis will be devoted to defining the militia through a number of means. First, an examination will be conducted of the structure and utilization of the militia at the time of the Revolutionary War. A brief examination will be made of historical documents associated with the structure and regulation of the militia during that period, including the PUBLIC POLICY FOR THE MILITIA IN 21ST CENTURY AMERICA 10 Articles of Confederation and the Constitution of the United States, along with insights from the Founding Fathers on how they viewed and defined the militia and the Second Amendment, through an examination of some of their writings. This historical examination of the concept of the well-regulated militia will then segway into a contemporary analysis of the militia. The current structure of the 21st century militia will be examined, and a sampling of regulatory structures will be reviewed to determine how the states utilize their militia. An overview of the establishment of the National Guard and state defense forces will be conducted