Recently the Monitor has published My Turns concerning the Second Amendment. I wish to join in only to amplify or clarify a few points since the debate over the “militia” continues.

For openers, state law in RSA 110-B provides for the New Hampshire militia to be divided into three classes, namely the National Guard, the State Guard and the Unorganized Militia. The State Guard consists of those persons who are called up if needed when the National Guard is out of state in active service of the United States.

Finally, every “able bodied” resident in the state age 18 or older is in the Unorganized Militia.

The law provides that when necessary in either a disaster, an invasion or an insurrection, the governor may call for the Unorganized Militia to come forward with as many volunteers as may be necessary.

If there aren’t enough, the law even provides for a draft. Another provision of state law says that the militia, meaning virtually everyone reading this article, may be called forth if the United States requires it.

Our state Constitution provides very simply that everyone has “the right to keep and bear arms in defense of themselves, their families, their property and the state.” Thus the right to bear arms under the state Constitution is not in any way connected to the so-called “militia clause” of the Second Amendment.

The Second Amendment was definitively construed in the case of District of Columbia v. Heller in 2008 to clarify that it protects an individual’s right to bear arms for the purpose of self defense.

The United States Supreme Court also said that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”

Aaron Baker, in his piece published on July 24, says that no country could be stable if citizens could overthrow a democratic government whenever they believe it had turned tyrannical.

Once again, our state Constitution Bill of Rights, which was enacted in 1784 (before there even was a federal Constitution), provides in Article X for the Right of Revolution “whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government.”

The right of revolution is obviously limited to the drastic situations described in Article X.

While the debate over the right to bear arms will continue in the decades ahead, a broader look at our state law and state Constitution will help clarify and amplify these important rights for combating tyranny and protecting self-defense.

 

(Chuck Douglas of Bow is a former Supreme Court justice who now practices law in Concord.)

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