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Bellarmine Law Society Review

Volume XIII | Issue II Article V

AWell-Regulated Militia: A Historical Reading of the Second Amendment

Darya Treanor
Boston College, treanoda@bc.edu



AWELL-REGULATED MILITIA: A HISTORICAL READING OF THE SECOND

AMENDMENT

DARYA TREANOR 1

Abstract: The Second Amendment is one of the most controversial parts of the
United States Constitution, and since its reinterpretation in the 2008 Supreme
Court Case D.C. v. Heller, it has officially been understood to protect the
individual right to own and bear arms. Even the opponents of this view, who often
point to the Militia Clause to argue that the amendment is not about individual
gun ownership, do not pay enough attention to the military history and language
behind the Second Amendment. This paper will argue that the Second
Amendment was initially written to protect the rights of service members, not
civilians. If it were to be interpreted and applied according to this originalist
reading, the Second Amendment would be able to invalidate laws and regulations
against LGBTQ+ people in the military or restrictions on women in combat. This
paper lays out a historical explanation of why the Second Amendment should be
read this way and an example of how the legal reasoning springing from this
reading could be used to protect the civil rights of members of the American
armed forces.

Introduction

The exact wording of the Second Amendment to the United States Constitution is “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.”2 There are many ways to read this passage, but in

the 2008 case D.C. v. Heller, the United States Supreme Court chose to interpret the amendment

as a protection of the individual right to gun ownership, despite the wealth of historical data

showing that the Framers of the Constitution had no such intention. This interpretation of the

Second Amendment, however, completely overlooks the Militia Clause, which is consequentially

underutilized and too often ignored in contemporary debate. This is a misgiving because while

the Militia Clause is not of much use in the political and legal fight over gun control laws, it

shows promise as a defense of the rights of soldiers. In particular, a historically informed reading

2 U.S. Constitution, amend. II.

1 Darya Treanor is a senior at Boston College studying philosophy and political science. She is interested in the legal
and constitutional history of the United States, and plans on attending law school starting in the fall of 2024.

65



of the Second Amendment might provide legal grounds for a constitutional defense of LGBTQ+

soldiers facing discrimination in the United States military.

Summary

To summarize the legal argument, based on the exact language of the Constitution and its

author’s own interpretation, the Second Amendment establishes the right of States to maintain a

militia and the right of citizens to join their state militia. The National Guard, the legally

recognized successor of state militias, has now been incorporated into the standing military, so

regulations about joining the military should match those of the National Guard. In other words,

by incorporating the National Guard into the standing military, the government also incorporated

laws and provisions like the Second Amendment so that they now apply to the standing military.

The Second Amendment, therefore, protects an individual’s right to join the military and serve

their country, and given the Fourteenth Amendment, sex (and therefore sexuality and gender

identity, which are reliant on sex) are protected categories against which the government cannot

discriminate. Any policy that would discriminate against LGBTQ+ Americans seeking to join

the military violates the Second Amendment and is consequently argued unconstitutional.

Origins of the Second Amendment

The Second Amendment to the US Constitution was passed in 1971, along with the other

amendments that make up the Bill of Rights. As Congress deliberated on the need for the Bill of

Rights and for specific amendments, many issues had to be discussed and clarified. However,

during the discussion of what would become the Second Amendment, “what was not mentioned

at all, by anyone, was any private use of arms.”3 Instead, the Congressmen discussed the purpose

of a militia and how to ensure that the states were able to maintain militias without interference

from the federal government, thus allowing states to protect themselves from federal overreach.

States’ rights and autonomy, and the role of a militia in securing the same, are the proper subject

of the amendment. There is no sign that the amendment addressed private gun ownership or use.

In fact, the debate surrounding what later became the Second Amendment invoked the

rights of individuals, specifically, religious freedom. Future Vice President Elbridge Gerry

argued that Congress should alter a clause from the proposed amendment reading, “but no person

3 Robert A. Goldwin, “From Parchment to Power,” (Washington: The AEI Press, 1997), 128.

66



religiously scrupulous shall be compelled to bear arms.”4 Gerry worried that this clause, meant to

allow conscientious objectors to avoid military service, could be co-opted by the federal

government to designate members of certain religious groups as religiously scrupulous and then

ban them from bearing arms and joining the militia. By misusing the clause in this way, Gerry

believed that the federal government could arrogate state power over the state militias and even

stop the formation of effective militias altogether. Gerry’s concern was that the federal

government might strip the right to bear arms from individuals based on their religious

backgrounds; this fear suggests that the right to bear arms was not only intended to allow the

establishment of state militias, but it would also protect the rights of individuals to join those

state militias.

Gerry’s suggestion that the conscientious objector clause should be changed in order to

close this loophole was narrowly defeated, but the debate continued on the amendment’s original

draft, which read: “[t]he right of the people to keep and bear arms shall not be infringed; a well

armed and well regulated militia being the best security of a free country; but no person

religiously scrupulous of bearing arms shall be compelled to render military service in person.”5

This expanded attempt to summarize the Founders’ thoughts on the right to bear arms makes it

very clear that the Second Amendment is, at its core, a military regulation.

Between the initial debate about the amendment and its ultimate ratification and

adoption, the language evolved and changed. Nevertheless, the origins of the Second

Amendment strongly suggest that it was intended to protect the right of citizens to organize in

regulated and state-run military groups. There is no textual or contextual suggestion of an

individual right to bear arms. The military origins of the Second Amendment appear to be largely

ignored in debates over its role in modern law and jurisprudence; however, they are relevant to

certain contemporary military applications.

Pre-Heller Second Amendment Law

Many Americans would be surprised to learn that until 2008, the Supreme Court had

never held that the US Constitution provides for the individual right to own a gun. Although

people claimed that it was a constitutionally protected right before the Supreme Court recognized

5 Annals of Congress, 1st Cong., 1st sess., 451. Available at:
https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001%2
Fllac001.db&recNum=227.

4 Ibid 127.

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https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001%2Fllac001.db&recNum=227
https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001%2Fllac001.db&recNum=227


that right, individual gun ownership only came to be understood as a right very late in American

constitutional discourse.

Many twentieth-century scholars of the Constitution believed that when the Second

Amendment refers to arms, it means specifically arms for use in well-regulated state militias.

David Hutchinson, for example, argued in 1928 that the relevant "arms" were “those of the

soldier to be used for defence [sic], and [does] not include knives, daggers, sling-shots, or other

such weapons.”6 While his specific assertion about Second Amendment relevance to weapons

other than firearms would not be readily accepted today, the implication here is not only that

“arms” are for use in a regulated militia but also that “[t]he carrying of concealed weapons may,

therefore, be prohibited by law under the police power.”7 Hutchinson cites the Supreme Court

case US v. Cruickshank and several federal and state laws to support this claim. It is telling that,

in his nearly four-hundred-page book on the origins of the ideas within the Constitution, he

dedicates less than a full page to the Second Amendment. In contrast, the First Amendment is the

focus of four and a half pages of detailed dissection, and even the oft-ignored Third Amendment

is the subject of one and a half pages. This suggests that, in the early 20th century, Hutchinson

considered his interpretation of the Second Amendment to be so blatantly obvious that he did not

have to go to any great lengths to prove it or address any other opinions. In short, in this period,

it was widely understood that the Second Amendment did not invalidate the existence of

regulations and limits on individual gun ownership.

The landmark 2008 case that changed the understanding of the law was District of

Columbia v. Heller. While this case has been praised as a long-awaited recognition of individual

freedoms, it has also been criticized as blatant judicial activism from a conservative court. The

case concerns a DC law that placed limits and regulations on the ownership of handguns,

including a ban on the registration of handguns and requirements for how legally owned firearms

had to be stored when not in use.8 The plaintiffs, including the case’s namesake Dick Anthony

Heller, asked the courts “to enjoin the city from enforcing the bar on handgun registration, the

licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the

trigger-lock requirement insofar as it prohibits the use of functional firearms in the home” on

8 District of Columbia v. Heller, 478 F.3d 370 (U.S. 2008).

7 David B. Kopel, Clayton E. Cramer & Joseph E. Olson, Knives and the Second Amendment, 47 U. Mich. J. L.
Reform 167 (2013). Available at: https://repository.law.umich.edu/mjlr/vol47/iss1/4.
David Hutchinson, The Foundations of the Constitution (New Jersey: University Books, Inc., 1975), 291.

6 David Hutchinson, The Foundations of the Constitution (New Jersey: University Books, Inc., 1975), 291.

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https://repository.law.umich.edu/mjlr/vol47/iss1/4


Second Amendment grounds.9 After the District Court dismissed the suit, the plaintiffs appealed,

and the Supreme Court reversed the lower court’s decision and held that the Second Amendment

protects the individual right to own firearms, regardless of militia or military service, and to use

those firearms for lawful purposes.

Until Heller, the legal consensus was that the Second Amendment did not prevent the

creation and enforcement of gun regulations, and in fact, “no federal appellate court had ever

invalidated any law as a violation of the Second Amendment.”10 As such, Heller represents a

marked shift in judicial behavior as well as mainstream thought about the amendment. Most

judges and legal scholars, such as Justice James C. McReynolds in United States v. Miller,

understood the Militia Clause to mean that the Second Amendment only applied to the right to

own and operate firearms so long as it had “some reasonable relationship to the preservation or

efficiency of a well-regulated militia.”11

Regulations on gun ownership in the US date back to the British colonies in America, and

the presence of these largely unchallenged laws suggests that early Americans did not view gun

control as conflicting with the Second Amendment or the American value of freedom. Even after

gaining independence, most states continued using English common law, complete with

traditional restrictions on gun use, such as a prohibition on traveling with concealed weapons in

populated areas and strict regulations about how firearms should be stored.12 In fact, according to

John Adams’ autobiography, during the American Revolution, the Founders recommended that

state and local governments “cause all Persons to be disarmed, within their respective Colonies,

who are notoriously disaffected to the cause of America.”13 This is more evidence that the

Founders were comfortable with gun regulations and that they intended the right to bear arms to

mean that the people could fight for, rather than against, or in spite of, the government. The right

to bear arms was explicitly tied to military service, with potential enemies of the Patriots stripped

13 John Adams in The Adams Papers, Diary and Autobiography of John Adams, vol. 3, Diary, 1782–1804;
Autobiography, Part One to October 1776, ed. L. H. Butterfield, (Cambridge: Harvard University Press, 1961),
369–370.

12 Saul Cornell and Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73
Fordham L. Rev. 487 (2004). Available at: https://ir.lawnet.fordham.edu/flr/vol73/iss2/3.

11 US v Miller, 307 US 174, 178 (U.S. 1939).

10 Lainie Rutkow, Stephen P. Teret, Jon S. Vernick, and Daniel W. Webster, “Changing the Constitutional Landscape
for Firearms: The US Supreme Court’s Recent Second Amendment Decisions,” American Journal of Public Health
101, (2011): 2021-2026, https://doi.org/10.2105/AJPH.2011.300200.

9 “District of Columbia v. Heller,” Legal Information Institute (Cornell Law School), accessed February 3, 2023,
https://www.law.cornell.edu/supremecourt/text/07-290.

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https://ir.lawnet.fordham.edu/flr/vol73/iss2/3
https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2011.300200
https://www.law.cornell.edu/supremecourt/text/07-290


of their arms and those with religious objections to military service subject to a higher tax rate.14

Moreover, in many states, the right to bear arms was contingent on the swearing of loyalty oaths

in which a person pledged allegiance to their individual state or the United States altogether, or at

least repudiated allegiance to the British king.15 The diversity of the gun regulations during

colonial and post-colonial America shows the long history of laws restricting gun ownership and

that the very Founders who created the Second Amendment were entirely comfortable with some

regulation on firearms.

State Militias and the National Guard

It is clear that the Second Amendment’s phrase “bear arms” has had a primarily military

context throughout much of history, and indeed, the Second Amendment was originally intended

to apply to the state militias. Scholars have argued that the phrase has two separate meanings: a

natural meaning relating to the literal carrying of firearms and an idiomatic meaning relating to

military service and activities. Several post-Heller researchers attempting to determine exactly

what the authors of the Second Amendment thought “bear arms” to mean have agreed that it

“was mostly used in its idiomatic or military sense during this period, but not solely or

exclusively so.”16 It, therefore, cannot be definitively concluded from this phrase alone that the

Second Amendment is meant to refer to military activity, but in conjunction with the Militia

Clause, it seems to suggest that there is a military connotation to the amendment’s text as a

whole. The Militia Clause or the phrase “bear arms” on its own would not necessarily mean that

the Second Amendment refers to military weapons, but when considered together, the Framers’

concern with the military is clear.

Before writing his book Armed in America, Patrick J. Charles performed a detailed

historical analysis of the antecedents of the Second Amendment, which produced two historical

conclusions: in eighteenth-century militia laws, all of the language that comprised the Second

Amendment–“well-regulated militia,” “necessary to the security of a free state,” “bear arms,”

16 E. Gregory Wallace, “Legal Corpus Linguistics and the Meaning of ‘Bear Arms,’” Duke Center for Firearms Law,
Duke University, July 16, 2021,
https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/.

15 John D. Sinks, “Oaths of Allegiance During the American Revolution,” District of Columbia Society, Sons of the
American Revolution, May 8, 2021,
https://www.dcssar.org/resources/Documents/Publications/Oaths%20of%20Allegiance%20During%20the%20Ameri
can%20Revolution%208%20May%202021.pdf.

14 Ibid.

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https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/
https://www.dcssar.org/resources/Documents/Publications/Oaths%20of%20Allegiance%20During%20the%20American%20Revolution%208%20May%202021.pdf
https://www.dcssar.org/resources/Documents/Publications/Oaths%20of%20Allegiance%20During%20the%20American%20Revolution%208%20May%202021.pdf


and “keep arms”–appeared regularly. Conversely, in all the other eighteenth-century laws,

including the laws pertaining to crime, self-defense, weapons, and hunting, none of the

languages that comprised that Second Amendment was present–not even different variants of the

term “bear arms”--i.e., “to bear arms,” “bearing arms,” etc. Even more telling was the fact that

not one eighteenth-century legal commentator or one eighteenth-century legal case used the term

“bear arms” or any variant of the terms to describe the act of carrying arms or using arms in the

act of self-defense.17 Given this, even if the evidence does not overwhelmingly prove that the

language of the Second Amendment applies only to the military, it certainly establishes that there

is no historical basis for the individualist reading of the Second Amendment. The weight of the

historical evidence shows that the language of the Second Amendment implies a military

context, and although there are occasional instances of other uses of the phrase “bear arms,” the

Framers clearly had the military, and more specifically, the state militias, in mind while drafting

the amendment.

The state militias of the late eighteenth century were meant to provide a mechanism for

national defense while avoiding the creation of a standing army, which was viewed as a potential

weapon that the federal government could use to exert tyrannical power over the states. Each

state raised a militia of its own, but because these militias might have needed to work together,

they had to be “well-regulated,” meaning that the standards for the different militias would be set

by the federal government so that there would not be irreconcilable differences between

discipline or training that might complicate a combined endeavor. These militias became

somewhat obsolete, however, with the advent of the national standing army. The Continental

Army, which won the Revolutionary War, was ordered to disband in 1784 (although two

companies remained active in order to protect military equipment.)18 Later, under the Militia Act

of 1792, the state militias were legally recognized, and additionally, the law gave the President

the right to call on the militias of any state.19 This law made the state militias a part of the federal

military system; they no longer answered only to the individual states.

In Presser v. Illinois, an 1886 Supreme Court case, the unanimous court ruled that the

Illinois National Guard was “the regular organized volunteer militia of [the] state” and that no

19 Militia Act of 1792, May 2-8, 1792.

18 “The U.S. Army: America’s First National Institution,” U.S. Army, accessed February 16, 2023,
https://www.army.mil/1775/.

17 Patrick J. Charles, Armed in America (Amherst: Prometheus Books), 23-24.

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https://www.army.mil/1775/


other group was legally recognized as a military organization.20 Presser effectively declared that

the National Guards are the modern successor or equivalent of the state militias to which the

Second Amendment refers, and the decision was reinforced by Congress when it passed the

Militia Act of 1903, which reorganized the National Guard out of the militia system.21 The

National Guard itself seems to conform to this view as well; they claim that December 13th,

1636, the date on which the first Massachusetts militias were organized, is the birthday of the

National Guard.22 Today, however, the National Guard is not solely under the jurisdiction of the

states; rather, the National Guard is considered a special unit of the American military that

answers to both the President and the governors of states.23 The National Guard, and therefore

the state militias, was effectively absorbed into the national military.

It seems plausible that once the National Guard was incorporated into the rest of the

military, the Second Amendment was also incorporated into the legal corpus surrounding the

military. In other words, while the Second Amendment was originally designed to apply to state

militias, the evolution of the relationship between the state militias and the standing military has

resulted in an expansion of the meaning and role of the Second Amendment. The constitutional

framework pertaining to the militias now applies to the National Guard and the rest of the

standing military as well.

Anti-LGBTQ+ Laws in the Military

There are a number of reasons why a person might want to join the United States

military. Putting aside the obvious points of patriotism and a desire for public service, working in

the military can offer Americans who may not have many other options a job and steady salary,

benefits like healthcare that might otherwise be out of reach, preference for future government

positions, funding for their education, and retirement pensions.24 Benefits like these can make a

24 “VA Benefits for Service Members,” U.S. Department of Veterans Affairs, last modified October 4, 2022,
https://www.va.gov/service-member-benefits/.
“Veterans’ Preference Information,” U.S. Department of Labor, accessed February 17, 2023,
https://www.dol.gov/agencies/vets/programs/vetspref.

23 Anshu Siripurapu, “A Unique Military Force: The U.S. National Guard,” Council on Foreign Relations, last
modified January 15, 2021, https://www.cfr.org/backgrounder/unique-military-force-us-national-guard.

22 “About the Guard: How We Began,” National Guard, accessed February 16, 2023,
https://www.nationalguard.mil/About-the-Guard/How-We-Began/.

21 Militia Act of 1903, 32 Stat. 775 (1903).

20 “Presser v. State of Illinois,” Legal Information Institute (Cornell Law School), accessed February 17, 2023,
https://www.law.cornell.edu/supremecourt/text/116/252.

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https://www.va.gov/service-member-benefits/
https://www.dol.gov/agencies/vets/programs/vetspref
https://www.cfr.org/backgrounder/unique-military-force-us-national-guard
https://www.nationalguard.mil/About-the-Guard/How-We-Began/
https://www.law.cornell.edu/supremecourt/text/116/252


substantial difference in an individual’s life and help them to support themselves and their

families. However, there are many limits on who can join the military. The government cites a

variety of reasons for these limits, ranging from the rational to the absurd, and historically, one of

the groups that has been discriminated against in military service is LGBTQ+ Americans.

The first reported case of an officer in the US military being discharged due to their

sexuality was in February 1778, in the middle of the Revolutionary War, when two soldiers were

found together in bed.25 One of them was Lieutenant Gotthold Frederick Enslin, who was

court-martialed and subsequently expelled from the Continental Army on the orders of George

Washington himself. This is to say that military discrimination against gay Americans is as old as

the country itself—or arguably even older, given that the United States had not formally won

independence in 1778.

However, the United States did not formally ban gay individuals from the military or

even technically forbid homosexual behavior until much later. In 1917, Congress adopted the

Articles of War of 1916, which criminalized sodomy and the intent to commit sodomy.26

Consensual sodomy remained criminalized in the military even after the Supreme Court case of

Lawrence v. Texas declared anti-sodomy laws unconstitutional in 2003.27 It was not until ten

years later that Barack Obama signed the National Defense Authorization Act of 2014, repealing

the ban.28 These anti-sodomy provisions did not technically exclude homosexual Americans from

joining the military, but in 1982, the Department of Defense created a policy stating that

“[h]omosexuality is incompatible with military service.”29 Although this was the first explicit

ban on homosexual members of the military, in practice, American soldiers could be discharged

for homosexual activity throughout the nineteenth and twentieth centuries.30

30 “Uniform Discrimination,” Humans Rights Watch, accessed February 17, 2023,
https://www.hrw.org/reports/2003/usa0103/USA0103FINAL-02.htm.

29 William A. Woodruff, “Homosexuality and Military Service: Legislation, Implementation, and Litigation,” 64
UMKC L. Rev. 121 (1995-1996): 131,
https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1037&context=fac_sw.

28 Chris Johnson, “Defense bill contains gay-related provisions,”Washington Blade, December 20, 2013,
https://www.washingtonblade.com/2013/12/20/defense-bill-contains-gay-related-provisions/.

27 Jeremy J. Gray, “The Military’s Ban on Consensual Sodomy in a Post-Lawrence World,”Washington University
Journal of Law and Policy 21 (2006): 379-406,
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1235&context=law_journal_law_policy.

26 Ibid.

25 “Uniform Discrimination,” Humans Rights Watch, accessed February 17, 2023,
https://www.hrw.org/reports/2003/usa0103/USA0103FINAL-02.htm.

“Military Programs and Benefits,” USA.gov, last updated November 10, 2022,
https://www.usa.gov/military-assistance.

73

https://www.hrw.org/reports/2003/usa0103/USA0103FINAL-02.htm
https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1037&context=fac_sw
https://www.washingtonblade.com/2013/12/20/defense-bill-contains-gay-related-provisions/
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1235&context=law_journal_law_policy
https://www.hrw.org/reports/2003/usa0103/USA0103FINAL-02.htm
https://www.usa.gov/military-assistance


When Bill Clinton became President of the United States in 1993, he attempted to lift the

ban on homosexuality despite public and military opposition. He failed, but as a compromise,

Congress passed a law allowing homosexuals in the military to serve if their homosexuality

remained a secret. This rule, often called “Don’t Ask, Don’t Tell,” remained in place until 2010,

and it had a number of flaws that allowed the military to continue discriminating against its gay

members. For instance, while recruiters did not ask potential soldiers about their sexual

orientation, the Pentagon continued to investigate serving members of the military, and members

of the military with same-sex partners were forced to keep their relationships and major parts of

their lives from their coworkers. The same-sex military partners were also denied the benefits

and support available to heterosexual military spouses, and if someone was outed for whatever

reason, they could receive an other-than-honorable discharge on the basis of their sexuality,

which meant they could be denied benefits, including the education benefits of the GI Bill,

pension payments, and health care.31 As a result, outed servicemembers forced out of the military

would not just lose their military career but access to many of the resources intended to help

them build post-military careers. Due to the bigotry that the law enabled and the lack of evidence

that one’s sexual orientation impeded the military’s organization and discipline in any way, Don’t

Ask, Don’t Tell was repealed in 2010, allowing gay and lesbian servicepeople to serve openly as

of September 2011. However, even with this policy change, veterans who were

less-than-honorably discharged under the law did not necessarily regain access to benefits until

ten years later. On the tenth anniversary of the repeal coming into effect, the Biden White House

instructed the Department of Veterans Affairs to work with veterans who were discharged on the

basis of their sexuality, gender identity, or HIV status.

The current guidelines regarding the sexuality and gender identity of military employees

state that transgender and homosexual individuals are permitted to serve.32 Still, LGBTQ+

servicemembers may be afraid to live openly due to fears about discrimination and harassment or

32 “LGBTQ in the Military,” Military One Source, U.S. Department of Defense, accessed February 26, 2023,
https://www.militaryonesource.mil/military-life-cycle/friends-extended-family/lgbtq-in-the-military/.
“5 Things to Know About DOD's New Policy on Military Service by Transgender Persons and Persons With Gender
Dysphoria,” U.S. Department of Defense, accessed February 26, 2023,
https://www.defense.gov/News/News-Stories/Article/Article/1783822/5-things-to-know-about-dods-new-policy-on-
military-service-by-transgender-perso/.

31 Quil Lawrence, “Veterans Discharged Under ‘Don’t Ask Don’t Tell’ Get A Chance for VA Benefits,” All Things
Considered, NPR, September 20, 2021,
https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-va-
benefits.

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https://www.militaryonesource.mil/military-life-cycle/friends-extended-family/lgbtq-in-the-military/
https://www.defense.gov/News/News-Stories/Article/Article/1783822/5-things-to-know-about-dods-new-policy-on-military-service-by-transgender-perso/
https://www.defense.gov/News/News-Stories/Article/Article/1783822/5-things-to-know-about-dods-new-policy-on-military-service-by-transgender-perso/
https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-va-benefits
https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-va-benefits


concerns that a rollback of LGBTQ+ rights in the future will lead to the reimplementation of a

policy like “Don’t Ask, Don’t Tell.”

Sexuality, Gender, and the Fourteenth Amendment

There have been many constitutional arguments against and challenges to laws limiting

the membership of LGBTQ+ Americans in the military, but most of them cite the First, Fifth,

and Fourteenth Amendments, using free association, due process, and anti-discrimination

grounds.33 However, they have not had much success in the court system, and this is not only due

to the presence of homophobia and transphobia in society; there are fair legal arguments against

using the Fifth and Fourteenth Amendments to strike down these laws. Both courts and

academics have thoroughly examined the debates over the validity of these constitutional

challenges. However, to my knowledge, there is no apparent scholarship suggesting that the

Second Amendment might be used to overrule these laws.

The Fourteenth Amendment is almost universally understood to forbid discrimination on

the basis of sex, with Supreme Court cases such as Reed v. Reed and federal laws like the Civil

Rights Act of 1964 using this interpretation.34 The Civil Rights Act of 1964 was a response to the

promise of the Fourteenth Amendment and an attempt to make the principles laid out in the

amendment legally practical and usable, and the law’s Title VII prohibits, among other things,

discrimination on the basis of sex.35 It is clear that our legal system relies on the understanding

that under the Fourteenth Amendment, sex is a protected category.

Despite this, there is debate about whether the Fourteenth Amendment protects gender

identity and sexuality. Opponents of such protection argue that different LGBTQ+ groups are not

subject to the same level of discrimination as the traditionally acknowledged suspect classes,

including racial and religious minorities, or quasi-suspect classes like sex. The main argument is

that gender identity and sexuality are not “obvious, immutable, or distinguishing characteristics,”

unlike, for instance, the physical markers that accompany race, ethnicity, and sex.36 Under this

36 Lyng v. Castillo, 477 U.S. 635 (1986).

35 “Legal Highlight: The Civil Rights Act of 1964,” U.S. Department of Labor, accessed February 26, 2023,
https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964.

34 “Timeline of Major Supreme Court Decisions on Women’s Rights,” ACLU, accessed February 26, 2023,
https://www.aclu.org/sites/default/files/field_document/101917a-wrptimeline_0.pdf.
“Legal Highlight: The Civil Rights Act of 1964,” U.S. Department of Labor, accessed February 26, 2023,
https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964.

33 SeeMcVeigh v. Cohen,Witt v. Department of the Air Force, and Log Cabin Republicans v. United States of
America.

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https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964
https://www.aclu.org/sites/default/files/field_document/101917a-wrptimeline_0.pdf
https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964


argument, since one’s sexuality and gender identity are not necessarily obvious, it is harder to

discriminate against someone on the basis of these qualities, and thus, a high standard of judicial

scrutiny is unnecessary. Moreover, since these identities can change over time, some people

argue that there are ways, such as the controversial pseudomedical practice of conversion

therapy, that someone can avoid this type of discrimination. On the other hand, proponents of

these protections point out that gender identity and sexuality are understood differently

depending on one’s biological sex and that any discrimination on the grounds of one’s gender or

sexuality is also on the grounds of one's sex. As it turns out, however, there is legal precedent

suggesting that gender or sexuality-based discrimination is legally considered sex discrimination.

In Bostock v. Clayton County, GA, the Supreme Court held that firing an employee due to their

sexual orientation is a violation of Title VII.37 Since Title VII derives from the Fourteenth

Amendment, the outcome of Bostock suggests that sexual orientation’s derivation from sex

means that, like sex, sexual orientation is a protected category against which people cannot

(easily) legally discriminate. In this way, discrimination on the basis of one’s sexuality can be

held to violate the Constitution.

The Legal Case

A hypothetical legal case relying on a military reading of the Second Amendment is

fairly simple. The Framers’ intention in creating the Second Amendment was to protect the

existence of the state militias, which includes the right of the people to join and serve in state

militias. The state militias of the late eighteenth century, of course, no longer exist, but there is

legal evidence that the National Guard is the officially recognized successor to those militias.

Since the National Guard now occupies a peculiar position in which it answers to both the

President and state governors, it has effectively been incorporated into the standing army, and by

absorbing the state militias into the standing military’s body, the military also absorbed the

obligations of the militias, including the Second Amendment’s protection of those seeking to join

the militias.

Due to the Fourteenth Amendment’s Equal Protection Clause and the widespread

understanding that it prohibits discrimination based on sex, along with the legal evidence that it

prohibits discrimination on the basis of sexual orientation or gender identity, the Second

37 Bostock v. Clayton County, GA, 590 U.S. ___ (2020).

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Amendment right to join the military and serve one’s country belongs to Americans regardless of

their LGBTQ+ identity.

Even if people have the right to join the military under the Second Amendment, there are

qualities that can act as disqualifiers. The government can prevent certain types of people from

joining the military if it impedes military discipline or efficacy; after all, the Second Amendment

refers to “a well-regulated Militia.” This means that in order to create any new bans on LGBTQ+

military personnel, the United States military would need to provide evidence that limitations on

gay or trans servicemembers are necessary to maintain the discipline and regulation of the

military. Unless they can provide this evidence–and scholarly argument as well as the absence of

an effect from the repeal of “Don’t Ask, Don’t Tell” suggest that no such evidence exists–then

sexuality and gender identity are protected categories against which the government cannot

discriminate for military purposes.

Conclusion

Despite the historical and legal evidence in favor of this argument, it is difficult to

imagine any lawsuit being brought on these grounds in the near future since current military

policy allows servicemembers to serve openly regardless of their sexuality. At least for this

particular issue, nobody has standing to bring the case in the first place, although it is possible

that there are people who could use this interpretation of the Second Amendment to bring related

cases against the United States government. For instance, a woman in the Armed Forces would

be able to challenge any restrictions on women in combat that still exist, and men might be able

to use the principles of this case to challenge the sex-specific burden of Selective Service.38

More importantly, however, this is an unusual and fringe reading of the Second

Amendment, and it’s hard to picture many, if any, judges espousing it in today’s world. Although

this is a valid application of the Framers’ intent and the legal principles set out in the Second

Amendment, it would take a considerable change in the legal and cultural understanding of the

Constitution for any argument based on this interpretation to succeed in court. At the moment,

the military history of the Second Amendment probably does not offer a very practical way to

reshape civil rights for soldiers or access to the military.

38 Technically, all combat positions in the US military have been open to women since 2016. However, in practice,
the implementation of the new rules is not yet complete.

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The Second Amendment entails much more than we normally suspect, and we do the

amendment a disservice by thinking of it in the narrow terms that the Supreme Court set down in

2008. The historical record very clearly establishes that the Second Amendment is supposed to

protect the states’ right to maintain militias and the people’s right to serve in those militias.

But D.C. v. Heller established that the Second Amendment protects individual gun

ownership, and this is now the law of the land. I believe that, at the very least, this interpretation

of the Second Amendment’s potential applications in our twenty-first-century world is no less

plausible than the one that the Supreme Court set out in Heller.

While this argument is legally sound, it may seem less-than-practical in the current

political climate. Nevertheless, legal arguments that are not currently in vogue in the legal

community still have value, both academically and as a roadmap for future efforts to secure

constitutional rights.

The Second Amendment occupies a controversial and delicate position in American

politics due in large part to very distinct understandings of what the amendment actually says and

what the Founding Fathers meant to accomplish via the amendment. This reading of the Second

Amendment will not settle the argument, but it reveals a different set of problems and

controversies that the amendment might play a role in addressing. Shifting the focus of the

Second Amendment from individual gun ownership to the social role of public defense would

exemplify a change that might resolve many of our country’s long-standing issues: a shift from

individualism to civic society that could, in its own way, reunite us.

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