The 2nd Amendment (Part 3)
Intro To The Constitution (Part 15)
Previous article in this series: Who Are The Militia?
This term, as it was used at the time of the Constitution, doesn’t strictly mean what modern readers seem to assume it means. Let’s start with the definition from the Oxford English Dictionary.
“Properly governed or directed; (now) esp. strictly controlled by rules or regulations. Also: accurately calibrated or adjusted.”
— “well-regulated”; Oxford English Dictionary [25]
You’ll note that it explicitly clarifies that the definition relating to being “strictly controlled by rules or regulations” is a modern variation. Put simply, at the time of the 2nd amendment, the term “well-regulated” had an ambiguous meaning which was somewhere between “accurately calibrated or adjusted” and “properly governed or directed”. But even the word “governed” doesn’t necessarily refer to government laws. For example, the title of “governor” was a political office at the time, but the same word was also used in non-governmental uses; the “centrifugal governor” was a mechanical regulator designed in 1788 for steam engines, to provide continuous feedback between the steam engine’s actual real-time power output, and its fuel input (i.e. steam pressure), in order to maintain a steady, constant rate; in other words, to keep the steam engine “well-regulated” (i.e. working properly).
Here are some historical usages of the term “well-regulated”, taken from the Oxford English Dictionary [25].
Note: some of these quotes are old enough that they include some historical weirdness involving the letters ‘U’ & ‘V’. It’s a little complicated, and largely irrelevant for the current discussion; so, to keep things simple, I have modified the two entries for 1579 & 1615 to update the spelling, to make it easier to understand for modern readers. But, just to clarify: I did not change the wording, I simply updated the word to the modern spelling. Some of the other words also have weird spellings, but I think they’re close enough that it shouldn’t cause too much confusion.
Year 1579 – Source: G. Fenton tr. F. Guicciardini Hist. Guicciardin ii. 82
“[Upon] which foundacions, might perhapps [have] bene constituted a [government] well regulated and established.”
Year 1615 – Source: T. Tuke Christians Looking Glasse 70
“Hee that [loves] God truely, and with a well regulated [love], will [love] God, chiefly for God himselfe.”
Year 1648 – Source: Kingdomes Weekly Intelligencer No. 290. 1186
“The preposterous conversion of the well regulated Monarchy of this Kingdome into a monstrous conception of a Military Anarchy.”
Year 1709 – Source: Ld. Shaftesbury Moralists ii. iv. 108
“If a liberal Education has form’d in us..well-regulated Appetites, and worthy Inclinations.”
Year 1714 – Source: R. Fiddes Pract. Disc. (ed. 2) II. 250
“The practice of all well regulated courts of justice in the world.”
Year 1812 – Source: J. Joyce Astron. in Sci. Dialogues II. xii. 126
“The equation of time..is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun-dial.”
Year 1862 – Source: Mrs. H. Wood Mrs. Halliburton’s Troubles i. v. 27
“It appeared, to her well-regulated mind, like a clandestine proceeding.”
Year 1927 – Source: Amer. Mercury Feb. 206/1
“At the final pre-fast meal, every well-regulated family ate kreplach, the Jewish ravioli.”
Year 1989 – Source: Brit. Med. Jrnl. 6 May 1266/1
“Infants had a well regulated endogenous rhythm.”
But, hypothetically, even if the term “well-regulated” did refer to extensive {rules & regulations} for the militia, that would still have absolutely no effect on the people’s right to {keep & bear} arms. Because that section of the amendment is simply stating that “a well-regulated militia” is of vital importance “to the security of a free state”, and in light of that truth, the people’s right “to keep & bear arms shall not be infringed.” It never even implies that the people’s right to arms was in any way contingent upon the regulation of the militia, nor the people’s membership in it. It’s like saying:
“A clean food supply, protected by strong food safety regulations, being vital to the {prosperity & health} of a nation; the right of the people to be informed as to the true contents of their food, and to {abstain or partake} in whatever {foods & ingredients} accord with their own conscience, shall not be infringed.”
This obviously doesn’t mean that the individual’s right to {[avoid gluten] or [eat organic]} is contingent upon the food safety regulations granting them permission to do so. Such food safety regulations may greatly assist them in {[achieving it] or [having a higher degree of confidence in their choices]}, but they are not the source of that liberty; the people already had the right to do so regardless.
Furthermore, even to the degree that the term “well-regulated” did refer to some manner of {expectations, requirements, or standards} which the militia should be expected to maintain, there was still significant debate over what that should actually mean in practice. Here’s a quote from Alexander Hamilton regarding this exact discussion:
“What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen … The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.”
— Alexander Hamilton; Federalist Papers – Number 29 [10] [12]
He believed that the bulk of the government’s focus should be on training select militias, while others believed that a reasonable degree of training could be achieved with the general militia. However, returning, once again, to the elucidative quote by Tench Coxe:
“The state governments also have the authority of training the militia, and appointing all the officers.”
— Tench Coxe; “To The Citizens of the United States”; Pennsylvania Gazette (Philadelphia, Pennsylvania) – Feb. 20, 1788; Page 2 [18]
For the first century of the United States, the training & management of the militia was considered to be a State issue; even to the point that in the Militia Act of 1808 [36] [37], when Congress decided to appropriate $200,000 per year to help {arm & equip} the Militia (both by direct purchase, as well as building factories), while these arms were distributed to the States proportionate to the size of their militias, exactly {how & [in what manner]} each State distributed these arms to their own militia was left up to each respective State. So, even when it directly involved Federal funding, the final say was still in the hands of the States.
Returning to the Militia Act of 1792 we saw earlier, here’s a later section:
“And be it further enacted, That within one year after the passing of this act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battallions and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers in the adjutant-general’s office in the state; … And be it further enacted, That there shall be an adjutant-general appointed in each stare, whose duty it shall be to distribute all orders from the commander in chief of the state to the several corps; to attend all public reviews when the commander in chief of the state shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution and perfecting the system of military dicipline established by this act;”
— The Militia Act of 1792 [29] [30]
And, the Revised Army Regulations of March 1, 1873:
“Whenever volunteers or militia are called into the service of the United States, the requisition will be made on the governor of the State or Territory in which they are to be raised, and the number of officers, non-commissioned officers, and privates will be stated in the requisition. The governors of States, are, legally, the authorities for raising volunteer regiments, and commissioning their officers. … Until regiments or independent companies are organized and mustered in, they will be under the control of the governor of the State”
— Revised Army Regulations; March 1, 1873 [31]
And the discussion of a court case regarding militia, from 1820:
“militia-men, when called into the service of the United States by the president’s orders, communicated either to the executive magistrate, or to any inferior militia officer of a state, are not to be considered as being in the service of the United States, until they are mustered at the place of rendezvous. If this be so, then, the state retains a right, concurrent with the government of the United States, to punish his delinquency. It is admitted on the one side, that so long as militia are acting under the military jurisdiction of the state to which they belong, the powers of legislation over them are concurrent in the general and state government. Congress has power to provide for organizing, arming and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by congress, it may be exercised to any extent that may be deemed necessary by congress. But as state militia, the power of the state governments to legislate on the same subjects, having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the states, subordinate nevertheless to the paramount law of the general government, operating upon the same subject. On the other side, it is conceded, that after a detachment of the militia have been called forth, and have entered into the service of the United States, the authority of the general government over such detachment is exclusive. This is also obvious. Over the national militia, the state governments never had, or could have, jurisdiction. None such is conferred by the constitution of the United States; consequently, none such can exist.
The first question then is, at what time, and under what circumstances, does a portion of militia, drafted, detached, and called forth by the president, enter into the service of the United States, and change their character from state to national militia?”
— Houston v. Moore (1820) [32]
So, to oversimplify this a bit, for easy digestion: essentially, the Federal government has the authority to require each State to maintain a militia of a given configuration, with a set of minimum criteria, and then it is up to the State as to how they choose to go about doing that. Then, when the Federal government has need of the militia, it issues a request to the State government for troops. The State then detaches a portion of their State militia, and transfers them into the control of the Federal government. Once this State militia detachment actually reaches their rendezvous point, and is “mustered-in” to the national militia (i.e. processed & officially received into the chain of command), only at that point, do they cease to be a State militia, and transform into a national militia; until such time as they are discharged back to the State. However, during that period wherein they have transitioned into being a national militia, the State loses authority over them, until they are discharged back to the State.
There is a sense in which whatever expectations or standards may exist for the {training & maintenance} of the militia, it is largely an issue at the State’s discretion. While there is certainly a federal {concern & incentive} to ensure that this responsibility is not neglected, ultimately, the exact manner in which this responsibility is carried out is up to the individual States. However, yet again, this is no longer the case, but we’ll examine this further in a later section.
Next article in this series: Purpose of the Militia
Citations
This entire Constitution series was written as a single big document over the course of several years; so, all the citations are mixed up together. When I went back to break it up into pieces, I wasn’t confident that I could redistribute all the citations & their reference numbers without screwing something up. So, I decided to leave all the citations together, and post them as the final article in the series.
