by H. Richard Uviller
This treatise has one fundamental flaw, a misrepresentation of what the term "militia" means. The authors equate it with an organized body initiated and commanded by state government officials, but if that is what the word means to them, it is not what the word meant to the Founders. The term is from Latin, and it translates as "defense activity". In the idiom of the era, a word for an activity could also be used to refer to those engaged in that activity, and that usage is the source of the confusion here.
There is also a misrepresentation of the meaning of the word "state", which, when used in the context of the Constitution, does not mean the government of the state, but the people of the state, whether they acted through a government or not. When the Founders referred to a state government, they used the term "state legislature".
The authors are correct in their thesis that the right to arms is tied closely to the duty of militia. However, they commit a logical error in concluding that if the duty is being neglected, the right disappears. The duty is indeed being neglected, but the duty continues, a duty that arises out of the social contract that created the society and the natural rights and duties of mutual defense of rights that are the terms of the social contract.
The duty, and the right to perform that duty, continues, regardless of whether it is being actively performed or not. In fact, it is being performed by millions of civilians every day, in thousands of ways. Every time anyone reports a crime, conducts his own criminal investigation, or makes a civilian arrest, that is militia. Any time anyone defends himself or another from injury, that is militia. Any time anyone asks others to join him in defending the community from any threat, that is a militia call-up. We are all militia, when we engage in militia, even when we act alone. There is no need for initiation or leadership by some official. Of course, sheriffs are supposed to be the militia commanders of their counties, and constables militia commanders of their wards or precincts, but if they neglect to perform that duty, the duty falls upon anyone present who is aware of a threat requiring defensive action, or preparation for such defense.
For more on this topic see http://www.constitution.org/cs_defen.htm .