http://www.seark.net/~jlove/background.htm

Gun control supporters insist that “the right of the people” really means the “right of the
state” to maintain the “militia” mentioned in the amendment, and that this “militia” is the
National Guard.

Such a claim is not only inconsistent with the statements of America’s early statesmen,
and the concept of individual rights as understood by generations of Americans, it
misdefines the term “militia.”

For centuries before the drafting of the Second Amendment, European political writers
used the term “well regulated militia” to refer to the citizenry on the whole, armed with
privately-owned weapons, led by officers chosen by themselves.

America’s statesmen defined the militia the same way. Richard Henry Lee, before
ratification of the Constitution the author of the most influential writings advocating a
Bill of Rights, wrote, “A militia when properly formed are in fact the people themselves
. . . and include all men capable of bearing arms. . . . To preserve liberty it is essential
that the whole body of people always possess arms. . . .” Making the same point, Coxe
wrote that the militia “are in fact the
effective part of the people at large.” And George Mason asked, “[W]ho are the militia?
They consist now of the whole people, except a few public officers.”

The Militia Act of 1792, adopted the year after the Second Amendment was ratified,
declared that the Militia of the United States (members of the militia obligated to serve if
called upon by the government) included all able-bodied males of age. As the U.S.
Supreme Court observed in U.S. v. Miller (1939), “The signification attributed to the
term Militia appears from the debates in the [Constitutional] Convention, the history and
legislation of Colonies and States, and the writings of approved commentators. These
show plainly enough that the Militia comprised all males physically capable of acting in
concert for the common defense . . . bearing arms supplied by themselves and of the kind
in common use at the time.” The National Guard was not established until 1903. In 1920
it was designated one part of the “Militia of the United States,” the other part remaining
all other able-bodied males of age, plus some other males and females.

However, in 1990, in Perpich v. Department of Defense, the Supreme Court held that the
federal government possesses absolute, unlimited power over the Guard. (The Court
never mentioned the Second Amendment, noting instead that federal power over the
Guard is not restricted by the Constitution’s Article I, Section 8, Clauses 15 and 16.)

Thus, the Guard is in fact the third component of the United States Army, behind the
Army and Army Reserve. The Framers’ independent “well regulated militia” remains as
they intended, America’s armed citizenry.

This historical and legal precedent was upheld in U.S. v. Emerson, a case that may
become a definitive test of the Second Amendment before the U.S. Supreme Court, when
District judge Sam R. Cummings struck down provisions of the Clinton-Gore
Administration’s 1994 Crime Bill. In his decision he stated, “A textual analysis of the
Second Amendment supports an individual right to bear arms.”

Judge Cummings based his ruling on a “historical examination of the right to bear arms,
from English antecedents to the drafting of the Second Amendment.” With his clear and
determined decision, he shut the door on the argument that the “militia” is merely the
national guard, and upheld two centuries of belief that all American citizens are in fact
the “militia” and have the right to bear arms. Judge Cummings also admonished those who
attempt to diminish the Second Amendment while defending select sections of the
constitution, writing, “The rights of the Second Amendment should be as zealously
guarded as the other individual liberties enshrined in the Bill of Rights.”