Regarding that pesky “well regulated Militia” in the 2nd amendment, what exactly did it mean?

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Gary the Gun Nut

Endless debate rages over exactly what the Framers meant by the term “well regulated Militia” in the 2nd Amendment.

To simplify matters somewhat, let’s consider the two opposite positions of the debaters:

The more liberal (the word “liberal” being used here in the sense of generous or non-restrictive) side of the argument holds that “well regulated” should be taken in the sense that a clock that keeps good time is “well regulated”.

This same side also argues that “Militia” referred to all the able bodied men of military age, which at the time the 2nd amendment was written would have been about ages 16 or so through age maybe 45 or a little older, and so could have potentially served in the Militia. (At that time there were no hard and fast rules regarding acceptable enlistment ages in militia or armies.)

The more conservative (the word “conservative” being used here to mean as restrictive and narrow as possible) side of the argument holds that “well regulated” refers to codified laws, rules, and regulations as propagated by the government (which could be at either the state or federal level).

This same side also argues that “Militia” referred to only those individuals who were actually active in the Militia at any given time (rather than the entire mass of able bodied men who were eligible to do so).

Trying to understand the original meaning or true intent of the Framers when they wrote the U.S. Constitution, including the 2nd amendment, is a form of Originalism, which takes on two basic forms:

· The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

·  The original meaning theory ( which is closely related to textualism), which holds that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary, everyday meaning of the text to be. (Note: It is this latter view of the Constitution with which most Originalists, such as Justice Scalia, are associated.)

Unfortunately, many of those who interpret the 2nd amendment from an Originalist viewpoint (especially gun rights advocates who think the 2nd amendment gives them an unfettered right to own and carry firearms of almost any type), apparently want the best of all possible worlds:

1) First they tell us that the 2nd amendment must be interpreted literally, and that every single word that the Framers wrote means exactly what it says (an Originalist interpretation),

2) Then they tell us that they know what the Framers meant because the words in the 2nd amendment are plain and clear for all to see,

3) But (and this is a big “but”) they mix together both modern 21st century definitions and meanings in order to make the 2nd amendment come out the way they want it to!

If one is to interpret the 2nd amendment from an Originalist viewpoint, isn't it fair to ask that any erstwhile interpretation of said amendment stick to the circumstances and social context the Framers found themselves in, including not just what they wrote regarding this issue but their own history viz a viz the use of the colonial militia in the United States?  (In other words, go with an Originalist interpretation or take a more modern approach to the 2nd amendment, whatever you like, just don't mix the two together in such a self-serving manner, or at the very least recognize and admit to what you are doing). 

So in order to better understand the historical and lexicological context the Framers found themselves in, as well as understand what they intended the term “well regulated” to mean, let’s take a brief look at the history of militias in the early United States, both pre-revolutionary and post-revolutionary.

First, we want to make sure we clearly understand what a militia is.  

mi·li·tia n.

1. An army composed of ordinary citizens rather than professional soldiers.

2. A military force that is not part of a regular army and is subject to call for service in an emergency.

3. The whole body of physically fit civilians eligible by law for military service.

[From the Latin term for warfare, military servicesoldier.]

The American Heritage® Dictionary of the English Language, Fourth Edition

So broadly speaking, the word militia refers to an army or other fighting force that is composed of non-professional fighters; citizens of a nation or subjects of a state or government that can be called upon to enter a combat situation, as opposed to a professional force of regular soldiers (or, historically, members of the fighting nobility). Therefore, the word militia could be used in reference to:

· Defense activity or service to protect a community, its territory, property, and laws.

· The entire able-bodied population of a community, town, county, or state, available to be called to arms.

· A private, non-government force, not necessarily directly supported or sanctioned by its government.

· An official reserve army composed of citizen soldiers. In the U.S. these are most often referred to as the Army Reserve and National Guard, but other state defense forces could meet this definition as well.

Of course, there was no official reserve army (e.g., a National Guard) in existence at the time of the country’s founding, so that reference is out the window. 

(Note: I have seen some commentators refer to the National Guard as a “select militia”, but this is an incorrect usage of the term as a select militia is composed of a small, non-representative portion of the population, most often politicized.)

Let’s consider, then, a brief history of militias in the United States, from both before and during the time of the American Revolution.

From Wikipedia  (http://en.wikipedia.org/wiki/Militia)

"The history of militia in the United States dates from the colonial era, such as in the American Revolutionary War. Based on the British system, colonial militias were drawn from the body of adult male citizens of a community, town, or local region. Because there were usually few British regulars garrisoned in North America, colonial militia served a vital role in local conflicts, particularly in the French and Indian Wars. Before shooting began in the American War of Independence, American revolutionaries took control of the militia system, reinvigorating training and excluding men with Loyalist inclinations. Regulation of the militia was codified by the Second Continental Congress with the Articles of Confederation. The revolutionaries also created a full-time regular army—the Continental Army—but because of manpower shortages the militia provided short-term support to the regulars in the field throughout the war." (emphasis added) 

So other than the fact that use of militias already had a long and well-established history in the colonies well before the Revolutionary War took place, it is interesting to note that the Second Continental Congress (i.e, the Founders) found it desirable to include “regulation of the militia” in the Articles of Confederation.

The question is, why would the Founders feel a need to codify (i.e., formally regulate) the militias?

Part of the answer might lie in the fact that even though the colonial militia had played an important role in the early fighting of the Revolutionary War, many of those leading the war effort, including George Washington, didn’t really think too highly of the colonial militia and/or its members, including the way they handled themselves in battle.

George Washington himself, upon assuming command of the Continental Army (which in 1775 was comprised entirely of militia), said, “All the General Officers agree that no Dependence can be put on the Militia for a Continuance in Camp, or Regularity and Discipline during the short time they may stay.” He would later say, “To place any dependence upon militia is assuredly resting upon a broken staff.”

http://userpages.umbc.edu/~jamie/html/effective_use_of_colonial_mili.html

If I was called upon to declare upon Oath, whether the Militia have been most serviceable or hurtful upon the whole; I should subscribe to the latter. – George Washington, September 1776

 http://www.historyisfun.org/militia-in-the-Revolutionary-war.htm

Of course, in the later years of the War the militia proved to be of great effectiveness, but this occurred only after Washington et al finally figured out ways in which to utilize and to take advantage of its strengths (e.g., in guerilla warfare, as an ‘early warning system’ for the regular army, etc.) and avoid its weaknesses (e.g., avoid taking the British military on in 'head-to-head' battles).

But the history of the militia in the early U.S., as informative as it may be, does not supply us with an answer as to what the Framers thought a “well regulated Militia” would look like. For that we need to consult what they wrote at the time (i.e., historical documents).

In the endless debate regarding the 2nd amendment, much is made of the Framer’s words written in either support of or opposition to the proposed Constitution (e.g., the Federalist papers, etc.), which is, of course, entirely necessary and appropriate.

However, in this debate the Articles of Confederation are usually, well if not completely ignored given very short shrift. Yes of course the Articles are not the supreme law of the land, but even though they were superseded by the U.S. Constitution they were still quite important in the interpretation of that document, as the Articles formed the original charter under which the 13 separate colonies were able to band together to fight for their independence, and then remained in effect for some time after that independence was finally won.

In addition (and most importantly), while it is commonly thought that the Constitution was written from the ‘ground up’, so to speak, it is interesting to observe how much of the ‘ground’ upon which the Constitution stands was actually laid down by those Articles.

As such, in the attempt to interpret the 2nd amendment from an Originalist viewpoint, perhaps it would be of some value to take a look at those Articles and see if they are not relevant to an Originalist-oriented interpretation of the 2nd amendment.

First some background on the Articles of Confederation.

From Wikipedia, the free encyclopedia:

Articles of Confederationhttp://en.wikipedia.org/wiki/Articles_of_Confederation

"The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that established the United States of America as a confederation of sovereign states and served as its first constitution. Its drafting by the Continental Congress began in mid-1776, and an approved version was sent to the states for ratification in late 1777. The formal ratification by all 13 states was completed in early 1781. Even when not yet ratified, the Articles provided domestic and international legitimacy for the Continental Congress to direct the American Revolutionary War, conduct diplomacy with Europe and deal with territorial issues and Indian relations. Nevertheless, the weak government created by the Articles became a matter of concern for key nationalists. On March 4, 1789, the Articles were replaced with the U.S. Constitution. The new Constitution provided for a much stronger national government with a chief executive (the president), courts, and taxing powers.”

That section of the Articles of Confederation relevant to the discussion of militias is to be found in paragraph four of Article 6 (of the Articles), which states that

“No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage."(emphasis added)

Now take a look at the language used in the Constitution regarding militias.

First, consider the powers of Congress over the Militia:

Article One

Section 8

"To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

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;"

Next, consider the powers of the President over the Militia:

Article Two

Section 2

"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;" 

Therefore, taking everything in the preceding discussion into consideration, that is the role of militias in the early history of the United States, including both before the Revolutionary War as well as the experiences of George Washington et al with the colonial militia during the War, and then also the parallels between the Articles of Confederation and the Constitution regarding the definition, role, and functioning of the militia, I think it safe to say that the following interpretation of the 2nd amendment, which is from an Originalist perspective, stands on fairly firm ground:

The term “well regulated” in the 2nd amendment actually encompasses both meanings of the term “well regulated” (i.e., “well regulated” as one might consider a clock to be, and “well regulated” as one might think of in a legal framework)!

“Well regulated” meant that State militias were to be well trained (i.e., they were to gather together and practice, drill, etc., on a regular basis) and that training was to be supervised by the States (i.e., the States were to appoint officers who were to oversee that training). (This was the clock-like aspect of "well regulated".)

But at the same time, “well regulated” also referred to the lawful power the Congress (which was comprised, after all, of representatives of the States) was to have over the State militias, that is, Congress was to promulgate and enact a system of rules governing the conduct and/or activity of said militias, as well as the legal authority the President would have over them when acting as Commander-in-Chief.  (This was the legal aspect of "well regulated".)

In other words, the use of the term “well regulated” in the 2nd amendment wasn’t meant to be an ‘either-or’, ‘black-and-white’ proposition, it was meant to be an all-inclusive term that covered all possible aspects of the situation viz a viz militias.

Comments

fognog2
fognog2's picture
"I ask, Sir, what is the

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason

Gary the Gun Nut
fognog2 wrote: "I ask, Sir,

fognog2 wrote:

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason

Can you point me the exact section of the Constitution (or BOR) that defines the militia as "the whole people".

Also, when he referred to the "whole people", did Mason mean for this to include slaves?

Stevein Delaware
Stevein Delaware's picture
It right there, though it's

It right there, though it's been changed over the years, in the US code. Note that the ages have changed over the years as well as including women now. This being the current, as of 2013, version of this article

10 USC § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Pierpont
Pierpont's picture
Stevein Delaware wrote: It

Stevein Delaware wrote:

It right there, though it's been changed over the years, in the US code. Note that the ages have changed over the years as well as including women now. This being the current, as of 2013, version of this article

10 USC § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Yawn... this hardly is a reflection of original intent, is it? And this unorganized militia is NOT the one mentioned in the Constitution... the one the Second refers to. It's a new creation.

The way to identify the true "well regulated" militia of the Second is to look for one that meets the constitutional requirements that have never been abolished by amendment... state based but can be federalized... etc. And that militia today are the state national guards.

jbhale
jbhale's picture
This unorganized militia is

This unorganized militia is precicely that referred to in the Constitution. See the Militia Act of 1792:
http://en.wikipedia.org/wiki/Militia_Acts_of_1792

Also see the debates on proposed amendments:
http://www.constitution.org/mil/militia_debate_1789.htm
For instance, Virginia — SEVENTEENTH, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power. 

And, see the Right to Keep and Bear Arms provisions of various state constitutions, some of which predate the US constitution:
http://www2.law.ucla.edu/volokh/beararms/STATECON.HTM

Pierpont
Pierpont's picture
jbhale wrote: This

jbhale wrote:

This unorganized militia is precicely that referred to in the Constitution. See the Militia Act of 1792:
http://en.wikipedia.org/wiki/Militia_Acts_of_1792

No, the Militia Acts are fleshing out the details of WELL Regulated milita specified in the Constitution. There is no "unorganized" constitutional militia on the federal level at this time. Therefore it can not be what the Second refers to.

jbhale wrote:
And, see the Right to Keep and Bear Arms provisions of various state constitutions, some of which predate the US constitution:

http://www2.law.ucla.edu/volokh/beararms/STATECON.HTM

Sure... but who cares since the Second is about the CONSTITUTIONAL militia not any of the older state militias. The Second is created right designed to limit the power of the new federal government... powers that did NOT exist before ratification. If you're looking for any individual right to self protection or property... look to the Ninth.

jkfan87
jkfan87's picture
When they wrote the second

When they wrote the second amendment, our founding fathers had just had to fight a war against their own oppressive government. It is INSANE to think that after doing so, that they wrote an amendment saying "You can have guns, but only if your LEADER says so." They just fought, with many people losing their lives to get RID of that kind of government. and this amendment was very clearly a nod to that sacrifice, basically saying "This is how we can help to prevent having to do this again. We want our citizens to be well armed in case the new governmetn tries to do that same as King George and we have to go through this again until we get it right."

Legend
Legend's picture
Interesting review. Do you

Interesting review. Do you think that the authors of the 2nd amendment had a clue as to what arms would be like in the future? Nothing in the 2nd amendment allows or dis-allows automatic weapons. No definition of "semi-automatic". What they wrote was based on no knowledge of the future yet so many refer to it as gospel. 

ulTRAX
ulTRAX's picture
Legend wrote: Interesting

Legend wrote:

Interesting review. Do you think that the authors of the 2nd amendment had a clue as to what arms would be like in the future? Nothing in the 2nd amendment allows or dis-allows automatic weapons. No definition of "semi-automatic". What they wrote was based on no knowledge of the future yet so many refer to it as gospel. 

The Second is moot. Since 1903 the federal government has been supplying the weapons to the state militias. So is it a violation of the Second that these weapons are stored in state armories?

ulTRAX
ulTRAX's picture
jkfan87 wrote: When they

jkfan87 wrote:

When they wrote the second amendment, our founding fathers had just had to fight a war against their own oppressive government. It is INSANE to think that after doing so, that they wrote an amendment saying "You can have guns, but only if your LEADER says so." They just fought, with many people losing their lives to get RID of that kind of government. and this amendment was very clearly a nod to that sacrifice, basically saying "This is how we can help to prevent having to do this again. We want our citizens to be well armed in case the new government tries to do that same as King George and we have to go through this again until we get it right."

Why would the Framers.... actually the First Congress, write every possible right into the BoR? Did the Framers care more about guns than the freedom to fall in love, or not; get married, or not, have kids, or not; build/buy a home... or not?

Such mundane rights were assumed to be protected since the Constitution gave the federal government no power in these areas. So according to the rules of construction implicit at first then explicit in the 9th and 10th, these matters were left to the people or their states.

So why would the Federal government feel a need to specify rights to own a gun for hunting or self-protection over other rights? The Ninth was added, as Madison says, out of greater caution.

The Second deals with the powers the federal government WAS given... and in this case... it's to arm and discipline a new militia system which before ratificatoin were purely state creations. Madison is clear in his intro to the BoR that there are positive rights... rights created to protect against the new powers of the federal government. Any person's right to a firearm is simply unenumerated... and the states were still free to have their militias. But Congress had the power to let them fall into neglect. Read the Militia Acts. http://www.constitution.org/mil/mil_act_1792.htm They could undo anything they wrote into law here... as long as it didn't violate Art 1, sec 8.

And a right is a choice... to own a firearm or not. Militia members were MANDATED to provide their own guns. 

It's bizarre that so many claim the Second is more than it states... but then Gun Nuts love the language in the last half of the Second. So to prove how much they respect the Constitution... they negate the first half and remake the Constitution in their image. And the social conservatives on the USSC loathe the Ninth... so they would do anything to NOT find a personal right to a firearm there. As Bork once said... the Ninth is like an inkbolt on the Constitution... beneath which we can't know what the First Congress meant.

Bullshit!

 

 

fabelmik
fabelmik's picture
Hello Gary, Interesting

Hello Gary,

Interesting read.
I´m from Europe and not knowing that much about the American history I learn a great deal by reading this kind of article.
The reason I found this article in the first place was because I wanted to do some research to understand why so many Americans seem to have an almost religious relationship with the Constitution.

May I ask what kind of background you have, education and so on..?

ulTRAX
ulTRAX's picture
fabelmik wrote:The reason I

fabelmik wrote:
The reason I found this article in the first place was because I wanted to do some research to understand why so many Americans seem to have an almost religious relationship with the Constitution.
Given how dysfunctional it is... this cuts to the heart of the matter. American's are raised to think of themselves as exceptional... and this goes back to founding where, while deeply flawed, the Constitution contained some radical new ideas on government. The problem is that Framer worship has become a civic religion... and implicit in this is we mere mortals dare not mess with their perfect document. In reality three of its remaining core defects are it's antidemocratic, virtually reform proof, and has led to an artificially narrow ideological spectrum. The system punishes those voters who vote their conscience and stray from the two parties and the Constitution's very structure undermines the growth of any democratic reform movement. Citizens soon learn apathy is a reasonable response to what they can't change and as a result the US has some some of the most pathetic voter participation rates in the "democratic" world. But that civic religion remains.