“A Well Regulated Militia”? For What and for Whom?

by Anne Demo

Assistant Professor
Dept. of Communication Arts & Sciences

One might not immediately think about immigration when considering the space between the First and Second Amendments. Beginning in 2004, however, a group of civilians began patrolling a 23-mile stretch of the U.S.-Mexico border to protest insufficient enforcement of the border.  The right to carry handguns is legal in Arizona and protected by the Second Amendment. Still, leaders such as then-Governor Janet Napolitano addressed concerns that the rights to assemble and bear arms can cause problems from a law enforcement perspective:   “People are entitled to exercise their First Amendment rights and entitled to assemble . . . . That’s why you can’t stop the Minutemen from coming even though, from a law enforcement perspective, it’s worrisome to have untrained people, potentially armed, performing what should be a law enforcement function” (Arizona Daily Sun 3/3/2005).   In 2014, three different militia groups—the Oathkeepers, the Three Percenters, and the Patriots—began patrolling the border along Texas’s Rio Grand Valley, prompting similar concerns from a local sector of Customs and Border Protection.

Just as certain types of speech are said to fall outside First Amendment protections because of their harm, the question of safety posed at the intersection of the First and Second Amendments raises important questions.  What (if any) types of arms might be deemed unprotected by the Second Amendment while exercising First Amendment rights to assemble?  More broadly, what does the middle clause of the Second Amendment (italicized below) mean for law enforcement functions on the border and in other recent conflict zones such as Burn, Oregon?

“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.”