Wednesday, May 2, 2012

'Well-Regulated Militia' All Around You

The idea that the Second Amendment only protects what our forefathers called "select militias," which receive weapons and training from the government (like today's National Guard), has been so thoroughly debunked over the past few decades I can't believe that the subject still comes up.  If the Supreme Court's belated ruling that "[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia" in DC v. Heller didn't put the issue to rest, I don't know what will.

Just for review, the Second Amendment 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 U.S. Constitution repeatedly refers to three distinct political entities: the people, the States and the United States.  The language of the Second Amendment clearly states that it is the right of the people to keep and bear arms which is protected.

The syllabus from the Heller decision concludes: "The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms."

Still, you occasionally hear grumblings from disgruntled progressives who just can't believe that their collective interpretation, which held sway in academia and the media for much of the twentieth century, has been swept into history's dustbin.  One such grumbling came as a guest column in last Sunday's Cedar Rapids Gazette entitled "'Well-regulated militia' is nowhere in sight."  Since the author, Bob Elliott, is a former Iowa City councilman, perhaps it's not surprising that civilian arms bearing doesn't sit well with him.

Mr. Elliott begins his piece writing about several recent shootings in Cedar Rapids which he alleges were carried out by "proud gun-wielding Americans, who apparently believe they represent something of a militia." I'm not sure about all the crimes Mr. Elliot is referring to but the three suspects arrested in the Kirkwood Apartment shootings were young punks with prior criminal records who were looking for drugs.  I'm going to go out on a limb and say none of them were weapons permit holders or dues-paying members of the NRA.

Mr. Elliott then gets into the meat of the Second Amendment.  "You may have noticed that the 2nd Amendment’s first two phrases focus on the necessity of a well-regulated militia," he writes. "I believe the Founding Fathers envisioned an organized and well-regulated militia."  But did the Founding Fathers define "well-regulated" to mean being administered by a government bureaucracy as we do now?  In their day, "well-regulated" often meant "well-trained."

Attorney Daniel J. Schultz explains:  "[C]omparison 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.'"

Mr. Elliott continues his guest column with, "I can’t believe [the Founding Fathers] had in mind more than 300 million people running around with weapons ranging from small caliber revolvers to assault weapons."  I'll ignore for the moment the Goldilocks syndrome that Mr. Elliot, like so many gun prohibitionists, apparently suffers from ("This gun is too big!  This gun is too small!") and focus on his first point in that sentence.

While the Founders may or may not have envisioned a nation with the staggering population that we now have, they certainly believed that the militia comprised the bulk of whatever that population may be.  Consider the words of George Mason, the "Father of the Bill of Rights," who said, "[W]ho are the militia? They consist now of the whole people, except a few public officers." [Emphasis added.] 

If Mr. Elliott is worried that the Founders wouldn't appreciate Americans "running around" with so-called "assault weapons" that cosmetically resemble military rifles, he may want to read the words of "A Pennsylvanian," Tench Coxe, who said that "every [...] terrible implement of the soldier, [is] the birthright of an American."

The simple fact is that gun control laws have been loosened in the past decade or so and record numbers of Americans are now buying, keeping and carrying firearms and yet violent crime rates and accidental gun deaths keep dropping to historic lows.  It seems that "We the Militia" are pretty well self-controlled (or "well-regulated) to me.


  1. I think that's a concise and accurate summary of the argument. May I add a small point in support?

    "Regulate" in firearms history literature often has a non-coercive meaning. It is used to describe the aiming qualities of a firearm. Notable examples come from the (largely British) makers of double rifles and drillings who advertised that each barrel was "regulated" to strike a common point of aim at some specified distance.


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