Gun Hero of the Day: The Doctor of Common Sense

In the first place, it is an introductory clause, not a limiting clause. In the second place, the whole tenor of the Second, as well as the BOR as a whole, is to protect the individual against the power of the central gov, so to read the Second as somehow applying only to a government-sponsored organization collectively is nonsensical. And in the third place–I believe your assumption is essentially correct as per 18th century usage.

http://i.imgur.com/Lnbp79m.jpg

From: http://www.lectlaw.com/files/gun01.htm

“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.” “

“A well educated electorate being necessary to the preservation of a free society, the right of the people to read and compose information shall not be infringed.”

“A well regulated diet being necessary to good health and nutrition, the right of the people to produce and consume food shall not be infringed.”

Clearly in the above two examples, no one would interpret them as saying that only those deemed “well educated” have the right to read and write and no one would interpret the second one as saying that only those foods deemed healthy are protected.

The phrase “well regulated” meant “in good working order” or in reference to good quality. One can find references in writings of the time, and into the 19th century, to “well regulated society,” a “well regulated government,” a “well regulated school,” a “well regulated machine shop,” a “well regulated hairstyle,” “a well regulated household,” etc…

“The militia” is the general population of freemen capable of bearing arms. At the time, it referred only to free white males, but then the phrase “the people” also only referred to free white males as well, and not to women, blacks, etc…today, “the people” is acknowledged as referring to everyone, and similarly, “the militia” would thus refer to all able-bodied free people capable of bearing arms. Obviously, little children, Aunt Mable who is 85 years-old and needs a walker, the mentally and physically disabled, etc…are not going to be part of the militia. It doesn’t mean that they do not have their right to keep and bear arms, but you can’t send someone in a wheelchair out to fight a tyranny or an invasion or put down an insurrection. In the writings of the time, multiple times is “the militia” distinguished from “select militia.” Also spoken of is “select militia” compared to “the militia at large.”

Go to the internet web site of SCOTUS and find D.C. v. Heller, download it and read it, especially Scalia’s majority opinion where this precise issue is addressed at length. He was the one who argued that, grammatically, the militia clause is an introductory clause, which gives some sense of the purpose of the amendment. To translate into modern English: in order to have a well-trained militia [which in those days was a complete substitute for an undesirable federal standing army], the right of the people to keep and bear arms shall not be infringed. The essence, then, is that it is the People’s province to provide for domestic defense, which they can accomplish only if they can keep and bear arms for their individual and collective purposes. All nine justices agreed that the 2A guarantees an individual right, the dissenters contending that the the right extended only to service in the militia, the majority recognizing that the militias of the day required individuals to keep and bring to meeting their own arms, and that the practice of the day was for people to go about armed. The majority also recognized that the right is a protection against the federal (now state and federal) power., and especially the risk of tyranny. To make it simple, without an individual right, there can be no militia, and without a militia (or the right to constitute one) there can be no defense against tyranny.

“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.”

Notice that is says “the right of the PEOPLE”, it does not say “the right of the MILITIA.” Case closed.

I’m gonna tick some people off with this response, but IMHO, what it means is that the militia is orderly, that is it has some sort of command structure. There is certainly no argument to be made that the federal government and the militia are wholly separate (we’ll get to that in a moment).

The concept of a militia in the Constitution is that it would be made up of civilians who (mostly) brought their own weapons. At the time “the militia” was thought to consist of all able bodied men. The lack of professionalization meant that the main body of the fighting force was not a standing army that could be “bought” used against the people because the militia’s loyalty was not to the Federal Government, their loyalty was to the Republic and their respective States. Though the militia was not always on duty a basic structure was theoretically intact when the militia is not operating so that units could be formed rapidly to repel an attack or suppress and uprising.

Now the militia was not expected to supply everything itself, nor to train itself, nor even go without pay. The individual was expected to bring a rifle and some other basic things with them when called into service, but Congress was responsible for authorizing money to provide necessary things for the militia in an ongoing crisis such as an invasion or prolonged uprising.

Article 1, Section 8 of the Constitution gives Congress very specific powers when it comes to the militia:

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

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”

A close read of this suggests that Congress has the power to “organize” the militia, that is authorize the creation of standardized units and provide a general guideline for how they should operate within a chain of command. A relatively modern congress Congress did this broadly under 10 USC § 311 which states:

“(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.

Clearly this doesn’t just suggest, it outright states that any of us who are male 17-45 (except as otherwise noted in section 313, title 32 and 10 USC § 312 which lists those exempt from militia service) are the “unorganized militia” which the government can direct in terms of unit formation etc. This section of the US Code became law in 1956.

(Fun tip: If you point this section about unorganized militia, of which we’re pretty much all members, to liberals who argue that we have no right to firearms because we’re not in the militia… steam comes out their ears. They’ll argue it’s some ancient law from the 1700’s or 1800’s, and when you point out its from 1956 heads start to explode. Proper PPE is advised.)

In the overall context “Arming” is clearly meant to mean that they we show up with a certain amount of ammo and they provide the rest during an ongoing struggle, it would also mean they can provide extra weapons. This was actually done on the West Coast during WWII when women were actually pulled into militia service and trained to shoot a Thompson so that they would be prepared should the Japanese attempt an invasion of the mainland US.

“Disciplining” refers to training (see paragraph just above this one and the last sentence of Art. 1 Sec 8 which I have quoted). This allows Congress to set certain standards so that a militia unit from Alabama doesn’t have a completely different training schedule compared to one from Iowa.

Reading the tail end of what I’ve quoted from Art. 1 Section 8, we find that Congress can press members and units of the militia into national service, but doesn’t get to appoint their officers. That right is reserved to the State, which acts as yet another check against the idea of a standing army loyal to Washington D.C. However, those officers can clearly be held to certain professional, training or experience standards by Congress based on their right to determine how the units should be trained and organized.

I could make this a bit longer, but I digress. I think you get the point.

It’s as simple as this:

A good breakfast, being necessary for the start of a good day, the right of the people to eat bacon and eggs shall not be infringed.

Who has the right to bacon and eggs? The breakfast or the people. The sentences are grammatically identical.

Yes and no. From the use of the terms “state” and “free state” in the years leading up to the Revolution, it’s evident that “state” means a political entity, but it refers not to the government of that entity but to the people within it, from whom all authority derives. This is the way Jefferson uses it when he switches from using the term “colonies” to using the term “states”, and it’s the way it was used in the ratification debates when the issue was the freedom of the states over against the power of the federal government.

So it refers to a geographical/political unit, but it does so because such a unit is only regarded as free when the people of that unit are free. Thus the security of the free state means the security of the people who constitute that state.

In one sense it is a collective right: crew-served weapons are covered if they belong to groups, or to entities which constitute a group (e.g. a business, for protecting transport or warehouse). It’s also a collective right just as the right of free speech, in that people can band together to exercise it.

The problem is that it being collective does not exclude it also being individual; in fact it can only be collective because it is first individual: a collective only has rights because they are derived from individual rights.