Right to bear arms and service in the military

[Eugene Volokh]

        I agree that to many in the Framing era, and later, the right to have arms
was the mark that distinguished a full-fledged citizen from something else,
perhaps even from a slave.  And surely the elimination of the qualifiers
"suitable to their station" and "Protestant" in the shift from the English
right to the American ones had an important dimension of broadening the
definition of who is a full-fledged citizen, as defined by the ability to
have arms.

        But I don't think that it was bound up with "service in the military" as
such; nor do I know of any contemporaneous evidence, or evidence from the
1800s, that interprets the right this way.  I certainly don't know of any
evidence that the military was seen as constitutional obligated to accept
all comers into any particular sort of military force.  Whites had a
constitutional right to bear arms; white males of certain age groups, with
some exceptions, were statutorily defined as part of the militia; but I
don't think that anyone had a legal right, either an equality right or a
substantive right, to actually serve in active military units.

        So it seems to me that the right of "the people", or "the citizens", or
"every citizen", "to bear arms" or "to keep and bear arms" or "to have arms"
was in fact a substantive right to have arms, and not just a right to have
an "equal opportunity to participate" in any particular government-organized
body.

        Eugene

Tobias Wolff writes:

> A question for Jack, Randy, Eugene and others.
>
> In my work on the Don't Ask, Don't Tell policy, I've had occasion to
> think a lot about the citizenship rights that are bound up with service
> in the military (a subject that many before me, like Kenneth Karst,
> have written about eloquently).  Service in the military, or in the
> defense of one's home, has traditionally been one of the exclusive
> avenues in American society for cultivating and exhibiting certain
> important personal and civic virtues.
>
> As I read the litany of provisions Eugene sets out below, it strikes me
> that they seem to be speaking much more to these citizenship rights
> than to the physical possession of weapons.  The thrust seems to be
> an equal opportunity to participate in the defense of oneself and the
> State, rather than an equal opportunity to become an army of one.
> Participation in the military, of course, has historically been restricted
> on the basis of race, gender and sexual orientation, and those
> restrictions have operated precisely in service of maintaining the
> value of the citizenship status conferred -- equally -- upon the group to
> whom it was reserved.  In this light, the Second Amendment may
> speak, not to a "collective" right of the State to maintain a
> militia, but to
> a personal, individual right to enjoy equal citizenship status through
> the opportunity to participate in such a body.
>
> Such a reading seems to combine many of the most pertinent
> aspects of both the "personal right" and "collective right" debate.  The
> "right" in question is certainly personal (and perhaps, enforceable),
> but it is a personal right to equal citizenship status in the important
> realm of defending one's home and one's State -- a defense that
> rests in the hands of government to guide and define.   In the late
> Eighteenth Century colonies, it is easy to see how the preservation of
> such citizenship status could casually be conflated with personal
> ownership of a weapon, as the latter was a practical necessity in
> service of the former.
>
> I wonder whether the scholars in this field could comment on
> whether this avenue of interpretation has been pursued.