by Daniel J. Schultz
T
he Second Amendment to the United States Constitution states: "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." The reference to a "well regulated" militia, probably
conjures up a connotation at odds with the meaning intended by the
Framers. In today's English, the term "well regulated" probably implies
heavy and intense government regulation. However, that conclusion is
erroneous.
The words "well regulated" had a far different
meaning at the time the Second Amendment was drafted. In the context of
the Constitution's provisions for Congressional power over certain
aspects of the militia, and in the context of the Framers' definition of
"militia," government regulation was not the intended meaning. Rather,
the term meant only what it says, that the necessary militia be well
regulated, but not by the national government.
To determine
the meaning of the Constitution, one must start with the words of the
Constitution itself. If the meaning is plain, that meaning controls. To
ascertain the meaning of the term "well regulated" as it was used in the
Second Amendment, it is necessary to begin with the purpose of the
Second Amendment itself. The overriding purpose of the Framers in
guaranteeing the right of the people to keep and bear arms was as a
check on the standing army, which the Constitution gave the Congress the
power to "raise and support."
As Noah Webster put it in a pamphlet urging ratification of the Constitution, "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe."
George Mason remarked to his Virginia delegates regarding the colonies'
recent experience with Britain, in which the Monarch's goal had been
"to disarm the people; that [that] . . . was the best and most effectual
way to enslave them." A widely reprinted article by Tench Coxe, an ally
and correspondent of James Madison, described the Second Amendment's
overriding goal as a check upon the national government's standing army:
As civil rulers, not having their duty to the people duly before them,
may attempt to tyrannize, and as the military forces which must be
occasionally raised to defend our country, might pervert their power to
the injury of their fellow citizens, the people are confirmed by the
next article in their right to keep and bear their private arms.
Thus,
the well regulated militia necessary to the security of a free state
was a militia that might someday fight against a standing army raised
and supported by a tyrannical national government. Obviously, for that
reason, the Framers did not say "A Militia well regulated by the
Congress, being necessary to the security of a free State" -- because a
militia so regulated might not be separate enough from, or free enough
from, the national government, in the sense of both physical and
operational control, to preserve the "security of a free State."
It
is also helpful to contemplate the overriding purpose and object of the
Bill of Rights in general. To secure ratification of the Constitution,
the Federalists, urging passage of the Constitution by the States had
committed themselves to the addition of the Bill of Rights, to serve as
"further guards for private rights." In that regard, the first ten
amendments to the Constitution were designed to be a series of "shall
nots," telling the new national government again, in no uncertain terms,
where it could not tread.
It would be incongruous to suppose
or suggest the Bill of Rights, including the Second Amendment, which
were proscriptions on the powers of the national government,
simultaneously acted as a grant of power to the national government.
Similarly, as to the term "well regulated," it would make no sense to
suggest this referred to a grant of "regulation" power to the government
(national or state), when the entire purpose of the Bill of Rights was
to both declare individual rights and tell the national government where
the scope of its enumerated powers ended.
In keeping with the
intent and purpose of the Bill of Rights both of declaring individual
rights and proscribing the powers of the national government, the use
and meaning of the term "Militia" in the Second Amendment, which needs
to be "well regulated," helps explain what "well regulated" meant. When
the Constitution was ratified, the Framers unanimously believed that the
"militia" included all of the people capable of bearing arms.
George
Mason, one of the Virginians who refused to sign the Constitution
because it lacked a Bill of Rights, said: "Who are the Militia? They
consist now of the whole people." Likewise, the Federal Farmer, one of
the most important Anti-Federalist opponents of the Constitution,
referred to a "militia, when properly formed, [as] in fact the people
themselves." The list goes on and on.
By contrast, nowhere
is to be found a contemporaneous definition of the militia, by any of
the Framers, as anything other than the "whole body of the people."
Indeed, as one commentator said, the notion that the Framers intended
the Second Amendment to protect the "collective" right of the states to
maintain militias rather than the rights of individuals to keep and bear
arms, "remains one of the most closely guarded secrets of the
eighteenth century, for no known writing surviving from the period
between 1787 and 1791 states such a thesis."
Furthermore,
returning to the text of the Second Amendment itself, the right to keep
and bear arms is expressly retained by "the people," not the states.
Recently the U.S. Supreme Court confirmed this view, finding that the
right to keep and bear arms was an individual right held by the
"people," -- a "term of art employed in select parts of the
Constitution," specifically the Preamble and the First, Second, Fourth,
Ninth and Tenth Amendments. Thus, the term "well regulated" ought to be
considered in the context of the noun it modifies, the people
themselves, the militia(s).
The above analysis leads us
finally to the term "well regulated." What did these two words mean at
the time of ratification? Were they commonly used to refer to a
governmental bureaucracy as we know it today, with countless rules and
regulations and inspectors, or something quite different? We begin this
analysis by examining how the term "regulate" was used elsewhere in the
Constitution. In every other instance where the term "regulate" is used,
or regulations are referred to, the Constitution specifies who is to do
the regulating and what is being "regulated." However, in the Second
Amendment, the Framers chose only to use the term "well regulated" to
describe a militia and chose not to define who or what would regulate
it.
It is also important to note that the Framers' chose to
use the indefinite article "a" to refer to the militia, rather than the
definite article "the." This choice suggests that the Framers were not
referring to any particular well regulated militia but, instead, only to
the concept that well regulated militias, made up of citizens bearing
arms, were necessary to secure a free State. Thus, the Framers chose not
to explicitly define who, or what, would regulate the militias, nor
what such regulation would consist of, nor how the regulation was to be
accomplished.
This comparison of the Framers' use of the term
"well regulated" in the Second Amendment, and the words "regulate" and
"regulation" elsewhere in the Constitution, clarifies the meaning of
that term in reference to its object, namely, the Militia. There is no
doubt the Framers understood that the term "militia" had multiple
meanings. First, the Framers understood all of the people to be part of
the unorganized militia. The unorganized militia members, "the people,"
had the right to keep and bear arms. They could, individually, or in
concert, "well regulate" themselves; that is, they could train to shoot
accurately and to learn the basics of military tactics.
This
interpretation is in keeping with English usage of the time, which
included within the meaning of the verb "regulate" the concept of self-
regulation or self-control (as it does still to this day). The concept
that the people retained the right to self-regulate their local militia
groups (or regulate themselves as individual militia members) is
entirely consistent with the Framers' use of the indefinite article "a"
in the phrase "A well regulated Militia."
This concept of the
people's self-regulation, that is, non-governmental regulation, is also
in keeping with the limited grant of power to Congress "for calling
forth" the militia for only certain, limited purposes, to "provide for"
the militia only certain limited control and equipment, and the limited
grant of power to the President regarding the militia, who only serves
as Commander in Chief of that portion of the militia called into the
actual service of the nation. The "well regula[tion]" of the militia set
forth in the Second Amendment was apart from that control over the
militia exercised by Congress and the President, which extended only to
that part of the militia called into actual service of the Union. Thus,
"well regula[tion]" referred to something else. Since the fundamental
purpose of the militia was to serve as a check upon a standing army, it
would seem the words "well regulated" referred to the necessity that the
armed citizens making up the militia(s) have the level of equipment and
training necessary to be an effective and formidable check upon the
national government's standing army.
This view is confirmed by Alexander Hamilton's observation, in The Federalist, No. 29,
regarding the people's militias ability to be a match for a standing
army: " . . . but if circumstances should at any time oblige the
government to form an army of any magnitude, that army can never be
formidable to the liberties of the people, while there is a large body
of citizens, little if at all inferior to them in discipline and use of
arms, who stand ready to defend their rights . . . ."
It is an
absolute truism that law-abiding, armed citizens pose no threat to
other law-abiding citizens. The Framers' writings show they also
believed this. As we have seen, the Framers understood that "well
regulated" militias, that is, armed citizens, ready to form militias
that would be well trained, self-regulated and disciplined, would pose
no threat to their fellow citizens, but would, indeed, help to "insure
domestic Tranquility" and "provide for the common defence."
ENDNOTES
1. In constitutional or statutory construction, language should always be accorded its plain meaning. See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816).
2. "On
every question of construction [of the Constitution] let us carry
ourselves back to the time when the Constitution was adopted, recollect
the spirit manifested in the debates, and instead of trying what meaning
may be squeezed out of the text, or invented against it, conform to the
probable one in which it was passed." Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 32.
3. "The Congress shall have Power . . . To raise and support Armies . . . ." U.S. Const., Article I, Section 8, cl. 12.
4. Senate Subcommittee On The Constitution Of The Comm. On The Judiciary, 97th Cong., 2d Sess., The Right To Keep And Bear Arms (Comm. Print 1982), at 5.
5. 3 J. Elliot, Debates In The Several State Conventions 380 (2d ed. 1836).
6.
Originally published under the pseudonym "A Pennsylvanian," these
"Remarks on the First Part of the Amendments to the Federal
Constitution" first appeared in the Philadelphia Federal Gazette, June 18, 1789, at 2, col. 1. They were reprinted by the New York Packet, June 23, 1789, at 2, cols. 1-2, and by the Boston Centennial, July 4, 1789, at 1, col. 2. The U.S. Supreme Court, in U.S. v. Miller,
307 U.S. 174, 83 L. Ed. 2d 1206, 59 S. Ct. 816 (1939), noted that the
debates in the Constitutional Convention, the history and legislation of
the colonies and states, and the writings of approved commentators
showed that the militia comprised all males physically capable of acting
in concert for the common defense -- a body enrolled for military
discipline.
7. 11 Papers Of James Madison 307 (R.
Rutland & C. Hobson ed. 1977) (letter of Oct. 20, 1788, from
Madison to Edmund Pendleton)( emphasis added).
8.
An examination of the other nine amendments of the Bill of Rights shows
that they were designed, like the Second Amendment, to declare rights
retained by the people (1-9), or the States (10), and to provide a clear
list of powers not given to the national government: "Congress shall make no law . . . ." (Amendment I); "No soldier shall . . . ." (Amendment III); "The right of the people . . . shall not be violated, and no warrants shall issue . . . ." (Amendment IV); "No person shall . . .; nor shall any person . . .; nor shall private property be taken . . . ." (Amendment V); "In all criminal prosecutions, the accused shall enjoy . . . ." (Amendment VI); "In
Suits at common law . . . the right of trial by jury shall be
preserved, and no fact tried by jury, shall be otherwise re-examined in
any Court of the United States . . . ." (Amendment VII); "Excessive bail shall not be required . . . ." (Amendment VIII); "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." (Amendment IX); "The
Powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people." (Amendment X).
9. 3 J. Elliot, Debates In The General State Conventions 425 (3d ed. 1937) (statement of George Mason, June 14, 1788), reprinted in Levinson, The Embarassing Second Amendment, 99 Yale L. Rev. 637, 647 (1989). See supra note 6 and accompanying text.
10. Letters From The Federal Farmer To The Republican
123 (W. Bennet ed. 1978) (ascribed to Richard Henry Lee), reprinted in
Levinson, supra note 9, at 647. See supra note 6 and accompanying text.
11. S. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, p. 83 (The Independent Institute, 1984).
12. U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) ("The Second Amendment protects 'the right of the people to keep and bear Arms'....").
13. "The
Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of choosing Senators." (Article I, Section 4); "The
Congress shall have power . . . To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes . . . ." (Article I, Section 8, cl. 3); "The
Congress shall have power . . . To coin Money, regulate the Value
thereof, and of foreign Coin, and fix the Standard of Weights and
Measures . . . ." (Article I, Section 8, cl. 5); "No Preference
shall be given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another: nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in another." (Article I, Section 9); "In
all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make." (Article III, Section 2, cl. 2); "No Person held
to Service or Labour in one State, under the Laws thereof, escaping into
another, shall, in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be due." (Article IV, Section 2, cl. 3); "The
Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States, or of any particular
state." (Article IV, Section 3, cl. 2).
14. See supra, notes 6, 9 and 10 and accompanying text.
15. The Oxford English Dictionary gives the following examples of usage for the term "well regulated": 1709: "If a liberal Education has formed in us . . . well-regulated Appetites, and worthy Inclinations." 1714: "The practice of all well regulated courts of justice in the world." 1812: "The equation of time . . . is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun dial." 1848: "A remissness for which I am sure every well-regulated person will blame the Major." 1862: "It appeared to her well-regulated mind, like a clandestine proceeding." 1894: "The newspaper, a never wanting adjunct to every well- regulated American embryo city." One definition of the word "well" in the Oxford English Dictionary is "satisfactorily in respect of conduct or action."
One of The Oxford English Dictionary definitions for the term
"regulated" is "b. Of troops: Properly disciplined." The one example of
usage is: "1690: Lond. Gaz. No. 2568/3 'We hear likewise that the French
are in a great Allarm in Dauphine and Bresse, not having at present
1500 Men of regulated Troops on that side.'" The Oxford English
Dictionary, Second Edition (Clarendon Press, Oxford 1989).
16. "The
Congress shall have Power . . . To provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions . . . ." U. S. Const., Article I, Section 8, cl. 15.
17. "The
Congress shall have Power . . . To provide for organizing, arming, and
disciplining the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the states
respectively, the Appointment of the Officers, and the Authority of
training the Militia according to the discipline prescribed by Congress .
. . ." U.S. Const., Article I, Section 8, cl. 16.
18. "The
President shall be Commander in Chief of the Army and Navy of the
United States, and of the militia of the several States, when called
into the actual service of the United States . . . ." U.S. Const., Article II, Section 2, cl. 1.
19. U.S. Const., Preamble.
-----
from:
The "Well Regulated" Militia of the Second Amendment: An Examination of
the Framers' Intentions, THE LIBERTY POLE V.II, No.2, The Official
Publication of The Lawyer's Second Amendment Society.
In
today's world education servers a duel purpose, The first is to offer
the tools needed to form thought, to reason and think. The second is to
indoctrinate, inform people 'what to think'. If by chance you fall into
the first category this is an article that provides the tools necessary
to understand the intentions of the Framers when drafting the Bill of
Rights regarding the 2nd amendment. If self-indoctrination is one's
goal then this article will not conform to your curriculum.
Daniel
J. Schultz is a practicing attorney in Los Angeles and President of
LSAS, a nationwide network of pro-right to keep and bear arms attorneys.
Contact the LSAS at (818)734-3066 or 18034 Ventura Boulevard, #329,
Encino, CA 91316.. The article originally published here.
