I've been recently looking at some 18th century documents, and I've been struck by how common this phrase and its cousins were throughout the 1700s. It certainly wasn't just an invention of the Revolutionary Era; for instance, a New York statute of July 24, 1724 was entitled "An Act for Settling and Regulating the Militia in this Province, and making the same Useful for the Security and Defence thereof, and for Repealing all other Acts relating to the same," and began:
Whereas an orderly and well disciplin'd Militia is justly esteemed to be a great Defence and Security to the Wellfare of this Province ....
(Spelling from a 1726 edition that I found in a proprietary database; the link I give in this post is to a 1894 edition.) The Act proceeded to define the militia as "every Person from Sixteen to Sixty Years of Age, residing within this Province" (though this might have been understood as being limited to men, and possibly free men); to provide how the militia was to be equipped; to mandate musters; to provide for the promulgation of articles of war; to provide for penalties for those members who didn't comply; and the like.
I express no opinion here about how this bears on Second Amendment debates -- I just want to highlight that the prefatory clause had a well-settled and familiar history to the Framers.
Hopefully, someday, the Supreme Court will recognize the original meaning of the Second Amendment.
BTW, Current US Code defines two classes of Militia, the organized militia composed of members of the National Guard and Naval Militia and the unorganized militia composed of all Males between 17 and 45 who are not members of the National Guard. (US Code Title 10,311)
Most people go their whole lives and never knew they were militia members.
Thanks for making me look at Google's book collection. Look at this excerpt from Parliamentary debates of 1780 concerning the disarming of Englishman as violating "the constitutional right of Protestant subjects, to keep and bear arms for their own defence."
It's possible, and I think reasonable, to read the First Amendment's Religion Clause as pertaining to "an establishment of religion," that is, an official church, rather than to individual religious freedom. In that case, it protects the states' right to have their official churches, which Massachusetts (for instance) did until 1833.
Of course, those who favor the 'militia' interpretation may be a little less enthusiastic about the 'official religion' one!
As to why it's in the BoR -- I think Madison just wanted to keep George Mason happy. Hard to see what a provision dealing with *mandatory* military service has to do with rights.
If you look at the text of the Second Amendment, it is obvious (to my mind, at least) that the bit about the "well-regulated Militia" is simply prefatory to the meat of the amendment, not a condition on it. The absurdity of the collective right argument should be obvious from the use of the term "the people," which refers to individual citizens in all other uses of the term in the Bill of Rights, and from the fact that states did not then (and as far as I know, do not today) need federal permission to form militias. It would also be worth keeping in mind, that the founders were sensitive to the subject of government attempting to disarm the people, as the British did just that, which was one of the sparks that set off the Revolution.
As for the Establishment clause of the First Amendment, yes, it referred to established state churches, which a number of the colonies - later states - had at that time. The point was, that the federal government was not to interfere with the existing (or future, I would guess, although the trend was away from established churches) established state churches and was not to form a national established church (like the Church of England, for example).
Think about what we were told in school (without being told what it meant - that came later) was the longest word in the English language: antidisestablishmentarianism. I believe that this term came out of the arguments to dis-establish the Church of England (presumably in the 19th century); you can see the meaning of the word.
So, to use a bad analogy, a whorehouse may be an establishment of prostitution (in the sense of being a business establishment), but the church down the street from it is not an establishment of religion. Unfortunately, some Supreme Court decision (don't know which one) used the word in the wrong way, and here we are.
p. 467
We can demonstrate that their interpretation theory is driven by their desired conclusion by stipulating their argument in its strongest form but changing the subject.
"Educated civil servants being necessary to good govt, the right of the people to keep and read books shall not be infringed."
Let's see the argument that said amendment doesn't protect my right to read Playboy.
In addition to "well-disciplined, well-trained, and well-equipped", how about "well-protected"? From a footnote in Tucker's Blackstone (1803 printing): "...every person so enrolled shall, within six months, provide himself with arms, &c. as directed by the act,...The arms so provided are exempted from distresses, and executions, for debt or taxes." L.U.S. 2 Cong. c.33 footnote to Book1, p.409. Now that sound like good regulation to me! Sorry, I don't know how to properly reference literature, such as Tucker's Blackstone.
One of the earlier citations of the phrase is from Andrew Fletcher's writings (e.g. here is one based on a speech circa 1701):
Frequently the pairing "good and well-regulated" and "good and effectual" appears in his writings. From which I think we must consider that well-regulated also or specifically meant "effectual". i.e., we are seeing a common rhetorical technique of repetition.
Is it ever possible to think both sides of a debate are wrong, shrill, and crazy?
That's what I think whenever the 2d Am. pops up.
If my choices are:
A. All guns, all the time, 'cuz the gummint is bad!
or
B. No guns, ever, because all guns are bad.
Can I go with C?
So why is this topic so controversial? (I admit I'm ignorant of the details of how the court's dealt with the 2nd Amend, but I don't recall anything in my American History books suggesting that the early Federal Government frowned on the private ownership of guns.)
Anyway, if tyranny comes to the US, I suspect it will be on cat's feet, not in hobnailed boots. At least, not at first. Guns will be of no use because you won't even know who to shoot, or why.
What makes you think that tyranny isn't already here? There are many people who think we are already living in a police state.
As for an "armed" populance having trouble with a modern army. I for one believe that an "armed" populance might be more successful than most believe. And the government is more likely to believe that an "armed" populance holds the real power in society.
Freedom and liberty don't come to those who are perceived as being weak, and as Chairman Mao once commented, "Power grows out of the barrel of a gun"
Xanax?
This means that the ebb and flow of more/less liberty is less likely to move towards tyranny, the better armed the population is.
Why do you not include self-defense in your list? Do you not believe it to be a legitimate or original purpose of gun ownership? Or is it just that it is harder to dismiss as "irrelevant"?
And, the armed civilian populace of the United States far outnumbers the combat soldiers in the United States armed forces, even without considering how many soldiers would refuse to fight given orders to attack their fellow citizens. How many millions of U.S. citizens own firearms?
The purpose of an armed citizenry is as a deterrent to tryannically inclined politicians. The shooting is less likely to start if those to be shot at can shoot back.
A group of Jews with little or no experience with firearms and equipped with fifteen half broken old pistols stood off the German army for two weeks in the Warsaw Ghetto. Fortunately, U.S. citizens today are much better armed with modern rifles and pistols, and most of them have some training in their use.
And you, Henri, get to be a free rider and enjoy a level of protection from your fellow armed citizens. The least you could do is thank them.
Professor Volokh has it-- it goes beyond equipping the militia (although query whether the power to equip would not also include the power to deny certain arms to certain members of the militia or reserve them only for other members), and gets to issues of discipline and training too.
But more broadly, you are correct, in a sense, that the right presupposes that the government can "regulate" the militia in the modern sense. For instance, I don't see how it is plausible that the framers did not believe that the state militia couldn't take a census of gun owners and find out what arms everyone had for purposes of ensuring an effective militia. And if that is true, it would follow that even a pretty intrusive regulation like gun registration is constitutional. So however you get there, a distinction between regulation and prohibition (which is what was endorsed by the Bush Justice Department and the DC Circuit) is probably the correct interpretation of the Second Amendment.
Instructional at least. Some returning GIs battled corrupt (tyrannical) government and there was some use of weapons.
To put the matter most explicitly, the private ownership of arms was always understood as being for individual or family self-defense first, and then for defense of community or country.
When we speak of self defense, in the civilian sense, we speak of defense against criminal attack, a problem faced by people in all nations. In the US, with its armed citizenry and tradition of armed self-defense, home-invasion or "hot" burglaries are rare when compared with other nations - Britain and Canada come immediately to mind - where a citizen's possession of arms and the right to self-defense is limited or outlawed.
Since home-invasion "burglaries" also often include rape and other injury, and since police response time is typically 5 minutes or more, you're on your own until they get there. And if the police fail to arrive, or arrive too late to prevent rape or injury, well, they have no resposibility to protect the individual citizen - their duty is to maintain public order, as a number of court cases have pointed out. You can't sue the cops if they fail to show up, or are too late....
Because, while the government has a clear, legitimate interest in knowing that somebody does NOT have the requisite equipment for militia service, (So the lack can be remedied.) or that they DO have them, (So that they're ready to be called up.) inquiring about any surplus arms a person might have contributes nothing to the purpose of ensuring an effective militia. It does, however, clearly contribute to the effectiveness of efforts to do exactly what the 2nd amendment aims to prevent: Disarming the people.
I fully agree.
Regarding option C, I think it's fundamentally true that the opinions of the founding fathers, while still useful, would be quite different today.
If Jefferson's stance on rebellion was any indication, he might well be at the extreme end of pro-individual rights toward guns today.
and likewise, going from the Alien and Sedition acts, Adams might very well be likely to argue that guns ought to be clearly regulated.
Madison, on the other hand, might very well take some position in the middle.
Few people that are even close to the mainstream today seriously content for example, that individuals ought to be able to carry weapons in bars, and few contend that every private citizen ought to be able to own explosives or automatic weapons under the second amendment.
Whether it goes further is obviously a difficult and controversial policy question, and think that's all the more reason to get a well reasoned supreme court ruling on the subject.
My personal option c: Guns hsould be available to the law-abiding with little restriction because there are bad people; and the State has no responsibility to defend me in the specific case.
"C" is where we're at. However, loki13's post is not the proper way to frame the argument. Not many folks take position "A", which, taken to its logical conclusion, would allow nuclear weapons in the hands of citizens. Does anyone advocate over-the-counter sales of nukes?
The problem is that while most rational citizens generally agree with minimal, reasonable restrictions on the 2nd Amendment [no nukes, no claymore mines, etc.], most libs want to enforce "B" in its entirety. That is their ultimate goal. Furthermore, they want to take all guns away from law abiding citizens - while invariably turning a blind eye toward criminals with guns.
Makes you wonder who's pulling their puppet strings; it's hard to believe that some folks are completely frightened to death at the thought of a responsible citizen possessing a legal firearm - but they never seem to be the least bit concerned about the gun-toting criminals who invariably commit gun crimes. Like night follows day, every time there's a gun crime reported, the ACLU is banging the table and insisting that the problem is guns, rather than criminals. There's something very wrong with that picture.
Maybe, just maybe, the documents you have read are talking about exactly what they say- the proper regulation of the militia, simply from the point of view of its military effectiveness (or lack of!).
So, this suggests a compromise position ("piss off both sides equally") might be possible. The government can't prevent a citizen from acquiring weapons, but they might lawfully require a demonstrated level of weapons skill, safety expertise, and furthermore set standards for owners to keep the weapon secure against inappropriate use. The NRA and Gun Control lobbies would both scream in agony.
Under those sort of terms, I can almost even see private ownership of nuclear weapons. =)
I believe Markos Moulitsas might beg to disagree with you on that. Come to that, Professor Volokh might be in a position to similarly disagree as well.
LOL, a denialist didn't like my comment.
Not at all, I've met them. They think that anyone who owns, or even wants to own a gun is a potential schoolyard shooter. Own a bunch of them? Must be a nutcase, just waiting to go off. A less extreme but similar and suprisingly common attitude is "I'm afraid to have a gun in the house." I ask them, why? It is an inanimate object, it can't do anything without human intervention. Don't want your kids/husband/whoever to get ahold of it? Then lock it up. Don't know how to use it? You can get training.
I can understand "I have no desire to own a gun". But "I'm afraid to"? That is just irrational fear.
The problem, Brett, is that's not how constitutions are interpreted. At the very least, even your position concedes that gun licensing (i.e., the government knowing what militia members own guns) is constitutional. But even if we assume that historically, the government was not concerned with surplus arms, that doesn't mean that the Second Amendment was intended to bar the government from acting on such a concern. One could hypothesize situations where the government clearly would be concerned with surplus arms (e.g., the government decided to increase the quantum of arms that militia members were required to keep, and it wanted to target those members whose current arsenals would be inadequate under the new standard). Further, the two types of regulations-- registration and licensing-- are closely analogous; it would seem like hair-splitting to draw the line between them rather than on one side or the other.
As for the assertion that registration would make it easier to confiscate everyone's guns and this would counter the central purpose of the Second Amendment, even if we assume that is true, there's a big constitutional difference betweeen making it easier to confiscate guns and confiscating guns. Maintaining government identification registries makes it easier to conduct illegal warrantless searches of people's homes, but that doesn't make it impermissible under the Fourth Amendment. Registering people to vote based on political party makes it easier to violate people's First Amendment rights, but that doesn't make it impermissible.
Further, while the framers were certainly concerned with people having their guns taken away, its worth remembering that the conspiratorial fears of some NRA members about governmental gun confiscation are actually quite different than the concerns that there be a well-armed militia that could be called up to defend the state. Thus, there's no reason to believe that the framers thought that regulating the militia placed us on a slippery slope to anything, and no reason to impute that belief to them when interpreting the Second Amendment.
Leaving aside the usefulness of private arms in defense against (and discouragement of) criminals, the argument in favor of armed citizens being able to influence a tyrranical government is based mainly on the fact that most governments want to control their citizens, not vaporize (or simply kill) them. This is also true in most wars, where A is fighting B to bend B to A's will, not to commit genocide on B and then take over B's depopulated land. So, while weapons of mass destruction may be used - even against civilians - as a tactic in a war, mass extermination of the enemy population is almost never the goal. Even the Arabs, who came fairly close to that behavior when they conquered India, were more interested in converts to Islam than in vacant, unpopulated land to move onto (although they certainly did colonize).
What this means, is that the US government would be unlikely to use WMD's on a revolting population, and in any event, guerilla warfare where (to use Mao's terminology) the guerillas swim like fish in the population and (except when they pick up the gun) cannot be differentiated from the population. The goal of most governments is to stop the revolt and get things back on an even keel, not to depopulate a city, town or state. So the effectiveness of the guerilla is much greater than the strength of his arms - or his numbers, and an armed populace has a disproportionately large deterrent effect on tyrannical tendancies in a government.
Are you sure that 'licensing' is the word you want? Because permission to do something is exactly what 'licensing' means, and exactly what the government can't require if that something is a right.
"Thus, there's no reason to believe that the framers thought that regulating the militia placed us on a slippery slope to anything,"
Except that they said as much, and crafted an amendment to make the slope less slippery. The federal government does not, after all, need the 2nd amendment to regulate the militia. It unambiguously acts as a limit on what the government can do in the way of militia regulation.
The bottom line is, I assume that the 2nd amendment, like the rest of the Constitution, is to be read in good faith, with an eye to effectuating it's purpose, not an eye to how it might be circumvented. I don't deny that with bad faith, you can read it to permit gun registration, licensing, and so on. With bad faith, you might say, all things are possible.
In the colloquial sense, meaning that the government keeps a registry of the people who own guns, but not what guns are owned. In gun control debates, this is often called "licensing", and it doesn't really mean "permission" so much as it describes what the government is doing.
Except that they said as much, and crafted an amendment to make the slope less slippery.
There's no evidence of that. Rather, they crafted an amendment that made sure that people would be able to keep and bear arms because of the importance of the militia. Find me a framer speaking in NRA terms about how regulating the militia will lead to confiscation of guns. You can't, because it doesn't exist. That simply was not something they cared about.
I don't deny that with bad faith, you can read it to permit gun registration, licensing, and so on. With bad faith, you might say, all things are possible.
Where's the bad faith? The provision permits the regulation of the militia, but requires that the right be respected. I think that the natural reading of text and history is that it was supposed to constrain the government's power to prohibit people from keeping and bearing arms, and to permit regulations at least of the scope and sort that was generally seen as permissible with respect to the militia.
The bad faith is on the NRA side of this argument, assuming that just because there is an individual right that every modern view about gun ownership gets imported into the provision, when those views were inconceivable to the framers and arose in the context of modern American gun culture.
That depends on the army's goal. Unfortunately for our brave soldiers in Iraq, if the goal is regime change and not annihilation, an armed populace can do fairly well against them. From a 2004 SF Chronicle article: Nearly every family in Iraq keeps an AK-47. It's for protection. Even the U.S. Army, in its weapons sweeps, allows families to keep one AK per adult male.
Here's a simple thing for some one to research: Did women own guns? Because women weren't part of the militia till relatively recent times, when the militia statute was amended to include female members of the National Guard. If women could be armed, then gun ownership was not dependent upon militia membership, obviously.
Alternatively, did the various Vice Presidents have to give up their arms upon taking the oath of office? Because the Vice President is exempt from militia duty, he would have no justification for being armed if arms were inseparably wed to militia service.
Googling shows this was a popular adjective from the 17th to the 19th century, applied to a "well-regulated household," well-regulated police, well-regulated affection (Henry James), etc. "Well-disciplined, well-trained, and well-equipped" doesn't seem to describe a household so much as "smoothly functioning" would.
"Licensing" means "Permission." When I buy a fishing license, I have permission from the government to catch fish. Other licenses were harder to obtain: I had to pass tests before the government permitted me to kill its birds and mammals, operate a motor vehicle, and transmit radio signals.
If the government wants to keep a registry of those allowed to own firearms, the census data + immigration data should be sufficient.