What Does It Mean To Have A Well-Regulated Militia?

BY Herschel Smith
1 week, 2 days ago

Opinions from S.C.

South Carolina Sen. Tom Corbin, R-Travelers Rest, sponsored a measure in anticipation of federal efforts to bolster gun control.

The senator wants to exempt from any new federal gun laws all members of South Carolina’s “unorganized militia,” which consists of all able-bodied citizens older than 17 who aren’t in the National Guard or the organized militia.

I infer from his measure that the senator is relying upon the Second Amendment to support his measure.

Had the senator taken the time to read the very document he swore an oath to support and defend, he would see that 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.”

It says “well-regulated militia,” not “unorganized militia.”

How can we abide having a state senator draft laws who doesn’t even understand the seminal document that our free society is predicated upon?

It would seem South Carolina has greater concerns than gun control.

J. BROOKS DAVIS

Attorney

Coleman Boulevard

Mount Pleasant

This confusion occurs a lot and while it’s impossible to correct it every time, some things bear repeating.

First of all, let’s address the 2A again.  The founders didn’t rely exclusively on the notion of militia to honor the RKBA.  Remember, bearing arms was so common in and among the people in the colonies that it would have been unnecessary to stipulate that people had that right given by God.

In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were “well armed”; in 1631 it required colonists to engage in target practice on Sunday and to “bring their peeces to church.” In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.

When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.

The concern at the time was that the militia could be federalized and put to uses against the states themselves.  The militia comes from the people, is armed by personal ownership, and serves the interests not of the federal government, but of the people.

All the founders needed to stipulate that the constitution honors the RKBA (not grants it, but recognizes and honors it as pre-existing and axiomatic) was one reason, and the militia serves as that reason.

Now that’s out of the way, let’s get to the notion of well-regulated.  It doesn’t mean what the lawyer says it means.  Standing armies were anathema to the founders.  Calling up the militia was calling up free men, calling them from their labors into battle.  Hence the term “unorganized.”

People also misinterpret the intent when they affirm that the existence of state sponsored armies (like the N.G.) replace the unorganized militia.  They usually use the term “well-regulated” to infer that they must exist under formalized, federally recognized statute, regulation, or federal code.

Let’s cover again what the term means.

“It is also important to note that the Framers’ chose to use the indefinite article “a” to refer to the militia, rather than the definite article “the.” This choice suggests that the Framers were not referring to any particular well regulated militia but, instead, only to the concept that well regulated militias, made up of citizens bearing arms, were necessary to secure a free State. Thus, the Framers chose not to explicitly define who, or what, would regulate the militias, nor what such regulation would consist of, nor how the regulation was to be accomplished.

This comparison 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.”

This concept of the people’s self-regulation, that is, non-governmental regulation, is also in keeping with the limited grant of power to Congress “for calling forth” the militia for only certain, limited purposes, to “provide for” the militia only certain limited control and equipment, and the limited grant of power to the President regarding the militia, who only serves as Commander in Chief of that portion of the militia called into the actual service of the nation. The “well regula[tion]” of the militia set forth in the Second Amendment was apart from that control over the militia exercised by Congress and the President, which extended only to that part of the militia called into actual service of the Union. Thus, “well regula[tion]” referred to something else. Since the fundamental purpose of the militia was to serve as a check upon a standing army, it would seem the words “well regulated” referred to the necessity that the armed citizens making up the militia(s) have the level of equipment and training necessary to be an effective and formidable check upon the national government’s standing army.”

It is quite clear that the Founders used the phrase “well-regulated” to denote that militia forces should be skilled with arms of contemporary military utility and relevant military tactics, so that they can serve in the defense of Republic against both foreign invaders  and the threat of domestic tyrants commanding a national army against the liberty of the citizenry.

A well regulated machine is one that runs correctly.  If a clock doesn’t keep time, it isn’t well regulated.  If your car engine knocks, it isn’t well regulated.  If your scope hasn’t been zeroed, the rifle/scope system isn’t well regulated.

The founders recognized that in order to e effective, free men operating under the axiom of the RKBA need to be drilled, need to know how to shoot, need to have weapons that were zeroed, operating correctly, and in good working order, all operated by men who knew how to do it.

Thus, the lawyer is wrong.  The proposed bill for S.C. is a good start, but still shouldn’t get in the way of either (a) open carry for S.C., or (b) constitutional carry for S.C.

 


Comments

  1. On April 1, 2021 at 3:38 am, Hudson H Luce said:

    Here are the words of another lawyer of the time of the Constitutional Convention, to clarify what is meant by the term “militia” – “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788
    and
    “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 article in their right to keep and bear their private arms.” in “Remarks on the First Part of the Amendments to the Federal Constitution,” under the pseudonym “A Pennsylvanian” in the Philadelphia Federal Gazette, June 18, 1789.

    Here is an extensive law review on Tench Coxe and the Second Amendment, which clarifies the meanings intended in the Second Amendment and their legal import, and it is well worth reading, especially by that attorney in South Carolina – https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1421&context=wmborj It will easily demonstrate that it is *he* who is ignorant of the relevant history and legislative intent.

  2. On April 1, 2021 at 7:17 am, Alex Lund said:

    Hello,
    I am a german and I know you will tell me to go away, but these are my two cents:
    The US founding fathers were highly educated men or had great common sense.
    They didnt have Television or PC to while away their time. They had a theater or an opera house maybe once in a year or so.
    For them a sentence like the 2A was clear as daylight. But they should have foreseen a time were people were not as enlightened or educated as they were.
    Therefore they should have written (at least) the 2A in a language that even an idiot can not misunderstand. And that means simple sentences without commata.
    So, the 2A should have been written like (sorry, english is not my primary language):

    We live in a territory/state called America composed of x substates like Georgia, Florida etc.
    This state shall have armed forces called the Army. They shall becommanded by the President.
    Every substate shall have a smaller version of the Army called the National Guard. They will be commanded by the Governeur of the substate. In a state of war or emergency the President can assume command the National Guard. If the Governeur of a substate disagrees with the President he has the right to call for a vote of all members of the National Guard of this substate. Their vote will decide if the National Guard obeys the President or if they will stay in their barracks.
    Every substate shall also have a militia, that is composed of all ablebodied males from 17-45. They are equipped with the weapons they possess. They shall be compensated for the use of their weapons by the substate if they are called upon to serve. If they serve the ammo shall be supplied for by the substate or the state.

    Allowed weapons:
    We do not know which weapons will be used in the times to come or how destructive they will become (just like the old Romans didnt know anything about gunpowder – rifles, or cannons.)
    The Army has access to all weapons.
    The National Guard has access to the weapons that are too old for the Army or that the Army can no longer use.
    The militia or every citizen has access to weapons that:
    a) can be carried by one person alone (and he must not the strongest or weakest person. He must be an average citizen in regard to strength, weight, height and mental capacity )
    b) was introduced to the Army 50 years ago (A weapon that the Army began to use in 1800 can be used by any citizen from the January, 1st 1851)
    c) weapons that need two or more persons: The people of the militia of all the substates shall vote if such a weapon shall be allowed to the citizens or not. This vote shall be held whenever a new type of weapon is introduced to the Army. If the vote is against the release of the weapon or the weapon shall be forbidden to the people then such a vote can be held only every 50 years.

  3. On April 1, 2021 at 8:05 am, Ron W said:

    The Bill of Rights was added in 1791, in order to, as its Preamble states, “to prevent usurpations and abuses” by the general Government. In the beginning subordinate clause of the 2nd Amendment, “militia” is mentioned in reference to the enumerated powers in Article I, Section 8. 15-16. There the power delegated to the general government, or the federal government RESTRICTS it “for governing such part of them (the militia) as may be EMPLOYED in the service of the United States”. Also, according to the understanding and quotes of our founders, the “militia” is composed of “the People” which is precisely consistent to the grammatical construction of the 2nd Amendment sentence. Therefore, the federal government has NO delegated powers pertaining to the People re: any weapons or firearms since it has only been delegated power for governing only “such part of (the militia) it EMPLOYS in its service.

  4. On April 1, 2021 at 8:35 am, xtphreak said:

    10 U.S. Code § 246 – 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.

  5. On April 1, 2021 at 9:13 am, Furminator said:

    And that, @Alex, is why our Constitution, containing lots of commas, consists of seven Articles, and yours, in the official English translation, in PDF on http://www.gesetze-im-internet.de, contains 141.

  6. On April 1, 2021 at 11:43 am, Fred said:

    Mr. Lund, what you’ve stated is not uncommon. You have conflated a Standing Army, with a state(s) National Guard, and with The Militia. This is the same thing that the author of this blog, among a great many others, have painstaking disassembled and proven as false. In fact, our own laws forbid a standing army, which the Federal Government has been in violation of since at least WWI, but probably since Lincoln’s war of aggression against the south.

    Originalism (if that were an actual thing, ugh.) is what’s supported by a small and dwindling group of men in America who understand that rights are nothing at all, but duties to Holy God. If these duties are rejected, the attendant rights are then lost.

    The Constitution is (was) fit only for a moral religious people. That’s the actual problem. Western civilization, Germany and the U.S. included, are not fit in any manner whatsoever for the Kingdom of God. He is the Judge.

    Ps. states having a Nation Guard is oxymoronic prima facie.

  7. On April 1, 2021 at 1:26 pm, Jimmy the Saint said:

    Many years ago, I ran into a guy who might have had the best idea on how to use a time machine. He said that if he had one, he’d just go back to the Constitutional Convention and keep yelling out “Could you please be a little more specific?” in response to every item being debated until they threw him out of the building.

  8. On April 1, 2021 at 1:47 pm, MTHead said:

    Ya, sorry Alex. Our forefathers also understood the evil in much speaking. One can only marvel at what Nancy, Chucky, and company would do with your amendment. I mean, if one can argue with, “The right of the people to keep and bear arms, shall not be infringed.”
    Yours doesn’t stand a chance.
    Something else is that the SCOTUS has ruled the constitution does not repeat itself. Therefor the, “regulation”, part of 2A has nothing to do with government regulation. All that was already granted.
    But more in keeping with the times. It’s not about law, or what is lawful anymore. Or rights.
    It’s about what you can stuff down the other guys throat.
    The right or wrong, lawfulness, legality of it all. Will be wrote by the winners. We should act accordingly.

  9. On April 1, 2021 at 2:04 pm, Fred said:

    But, @MTHead, the 2A is an amendment. It does amend the Militia Clause of the Constitution. So, you are correct that the Constitution doesn’t repeat itself, but, that’s what amending it does, and the 2A is in fact amending the militia clause.

    The so called Militia Clause of the Constitution, article 1, section 8, clause 15, is thereby modified (amended) by the 2nd Amendment to make it known that the people are this Militia, therefor they(we) keep and bear the arms for the purposes of (among others) being called to national duty should the need arise. This does in no way modify the preexisting duty to self-defense; which includes defense of family, neighbors, tribe, state, etc. as indicated in the Six Commandment of Holy God.

    The ship that includes everything just written above has so long since sailed that it’s really just a discussion of history. That country might as well have existed on Atlantis in a fiction novel before recorded history began.

  10. On April 1, 2021 at 2:30 pm, scott s. said:

    I suppose there is somewhat a conflict between the theory of “militias” and how things actually operated (and now operate) in practice. I don’t think the free citizen militia envisioned by the framers ever proved practical, or at least it was practical in only a subset of cases. The concept of “unorganized militia” seems just that — a concept.

  11. On April 1, 2021 at 2:57 pm, Herschel Smith said:

    @scott s.,

    I have absolutely no idea how you would come up with such a viewpoint. The militia worked its magic in S.C. during the war of independence, and at the battle of Cowpens was determinative. Beyond that, its actions as guerrilla fighters literally eviscerated the troop concentrations of Gen. Cornwallis. As well as defeated the loyalists at the battle of King’s Mnt., thus ending Cornwallis’ strategy for the South (to use loyalists).

    The very men who wrote these words are the ones who watched all that happen (or participated themselves).

    But if you care to be ignorant of history, that’s your business.

  12. On April 1, 2021 at 3:10 pm, Ned2 said:

    Mr. Lund, if you are ever in America I would be honored to take you to the range for a day and show you first hand what the Second Amendment means.

  13. On April 1, 2021 at 4:50 pm, Georgiaboy61 said:

    In the time of the Founders, the words “well-regulated” meant well-trained, well-organized and well-equipped. The intent of the Framers was to ensure that the people would as well-armed and equipped as a professional standing army.

    During the run-up to the War of Independence, King George III stationed British Redcoats, army regulars, in the homes of the colonists. Boarding such was compulsory; the families so treated had no choice in the matter. The Founders did not forget this tyrannical treatment when it came time to codify the liberties of Americans in our founding documents. They greatly-feared standing armies, in part because of this abuse of power by the British crown, but also simply because of the lessons of history.

    To that end, they sought to provide checks-and-balances against different kinds of government power, in the expectation and hope that such measures would prevent similar abuses in the future.

    The Founders knew that a small core or cadre of professional soldiers was probably going to be needed on a permanent or standing basis, to serve as the skeleton of a larger reserve force, should it be needed. However, in case the professional military overstepped its bounds, they also intended that the people themselves be as well-armed, equipped and trained as the professionals, at least to the extent that this was possible.

    In the present, the organization of our military forces, both professional and non-professional, has strayed substantially away from the vision of the Founders. Today, the country and people who most-closely resemble the model the Founders had in mind are probably the Swiss.

  14. On April 1, 2021 at 4:55 pm, Fred said:

    GB, I’ve never heard that the founders knew a cadre of professional soldiers was going to be needed. What is your basis for this statement?

  15. On April 1, 2021 at 5:06 pm, Herschel Smith said:

    I would agree with the notion that a cadre of professional soldiers was always needed and the founders probably knew that, given that Jefferson was the first one to use the U.S. Marines that way (Tripoli).

    But professional “Soldiers of the Sea” is a far cry from a standing army (much like what we have now with the police, esp., FedGov police like the CIA, FBI, DHS, and about every other agency today including the IRS and department of education who has a SWAT team).

    Defending U.S. trade interests is different from occupying the American homeland.

  16. On April 1, 2021 at 5:18 pm, Fred said:

    I’m not a betting man but if I thought to, I would take the over under that they knew the fed gov already had unlimited power. They gave room for an unlimited number and purpose behind whole new departments to be created out of nothing and for what purpose? Any under the sun. That’s the War Department, CIA, FBI, DHS, IRS and etc etc.

  17. On April 1, 2021 at 5:54 pm, xtphreak said:

    Fred
    How do you figure “…they (the Framers?) knew the fed gov already had unlimited power…”?
    The Constitution is a limit on the power of the FedGov.
    Pray elucidate.

  18. On April 1, 2021 at 6:49 pm, IA Brooks said:

    Forget the militia. The Second Amendment is only indirectly concerned with the militia. The part of the sentence which stands alone and cannot be discarded is:'[T]he right of the people to keep and bear Arms shall not be infringed.’

  19. On April 1, 2021 at 7:26 pm, Fred said:

    xtphreak, you didn’t read all the comments. Start with the comment posted by GB on April 1, 2021 at 4:50 pm, down to my last comment for the context. I actually don’t think we can know what any dead men “knew.” I was simply playing the, they “knew” this and they knew that game.

    But, my question to GB was serious. I thought perhaps he had seen such a notion in one of their writings. But Herschel’s point about the existing marine contingent and fighting the barbary pirates (Muslims. Jefferson and the boys didn’t much care for the mohammedan) was a good one that I hadn’t considered.

  20. On April 1, 2021 at 8:06 pm, Herschel Smith said:

    @Brooks,

    No. I will not forget anything.

    My post stands on its own, with enough nuance to fully explain things. Both the personal, God-given right (and duty) for defense of home and hearth, AND against tyranny, and the more collective use of that individual right in the militia (both concepts of which are wrapped up in the 2A).

    The founders needed only one reason to place in the 2A, not the hundreds that they could have used (and doubtless do exist), and thus the focus on one thing, not multiple.

    It’s the difference between an “emphasizing” reduction and an “exclusive” reduction (here I owe this concept to Professor John Frame, RTS).

    My words are nuanced, considered, and thoughtful.

    And Scalia was a coward and the Heller decision weak. And if Scalia was a coward, the rest of the SCOTUS is comprised of cowards in the superlative.

  21. On April 1, 2021 at 9:17 pm, Georgiaboy61 said:

    @ Fred

    Re: “GB, I’ve never heard that the founders knew a cadre of professional soldiers was going to be needed. What is your basis for this statement?”

    No statement needed. Their actions say as much. During the war for independence, the colonies had to hire professional soldiers to train and drill their militia into something resembling an army, as opposed to a group of individuals who happened to possess weapons.

    A number of notable foreign military men made decisive contributions to the eventual defeat of the British, including Polish-born Casimir Pulaski, the “father of American cavalry,” French-born Gilbert du Motier, better-known to history as Marquis de Lafayette, and Prussian-born Baron Friedrich Wilhelm von Steuben. There are plenty of other examples.

    Moreover, many of the Founders themselves were veterans of military service, including some with combat experience, during the French-and-Indian War, or elsewhere. They understood that untrained, unorganized undisciplined men who happen to possess arms do not constitute a viable military force; rather, they are unorganized rabble.

    Turning such raw material into soldiers, actual military men able to function on a battlefield with some degree of effectiveness cohesion, is the job of the professional solider, whether a non-commissioned officer or a commissioned officer. Or, in military terms, the professional cadre or core of your force.

    And though the Founders were suspicious of a large professional standing army, shortly after the new republic was formed, they authorized the formation of a professional navy – the U.S. Navy – and a professional force of naval infantry – the United States Marine Corps. Clearly, they did not intend for the entirety of the new nation’s armed forces to be composed of amateurs and reservists.

  22. On April 1, 2021 at 9:27 pm, Georgiaboy61 said:

    @ Herschel Smith

    Re: “But professional “Soldiers of the Sea” is a far cry from a standing army (much like what we have now with the police, esp., FedGov police like the CIA, FBI, DHS, and about every other agency today including the IRS and department of education who has a SWAT team). Defending U.S. trade interests is different from occupying the American homeland.”

    Well-put and quite so. The Founders authorized a professional navy and corps of marines for the precision reason that they viewed defense of our coasts as vital to our nation and commercial interests.

    Determining a precise inflection point when our army became a large standing force is not as easy as it sounds, but something after the Civil War (1861-1865) and before World War One would be an approximation. As late as the Spanish-American War of 1898, formations were raised on an ad-hoc basis at the local, state and regional level,to supplement professional forces. If memory serves, that’s what Teddy Roosevelt’s “Rough Riders” were, to name one example.

    The army had to grow into a professional, somewhat permanent and “standing” force, to wage the decades-long conflict with the Plains Indians.

    The air forces, such as they were, didn’t come into being until after the Wright Brothers flight and in the run-up to the Great War, and in any event, the “air force” was under army control until the post-WWII Key West Agreement of 1948.

  23. On April 2, 2021 at 8:18 am, Fred said:

    Yeah, Grant’s armies continued fighting and harassing people for decades after the war. Not only in the south during “reconstruction” but in the western territories as well. Folks back then, when the blue coats showed up, would lay low and keep their mouths shut. Perhaps they had a saying such as we do today; “you’re never in more danger than when the police are around.”

  24. On April 2, 2021 at 9:11 am, Alex Lund said:

    To Ned2:
    And I would be honored to join you on the range for some shooting (But I also dont like cleaning the guns afterwards. Not even when I served in the German Air Force.). As soon as the people at the airport dont behave like sexual molesters, I think you call them TSA.
    (I hate that Germany doesnt have a 2nd Amendment.)
    Let me say this clear: I am NOT against the 2nd Amendment! I am in support.

    And let me please add:
    Language evolves and changes over time.
    Just look at the original English used at the colonial times or go back to Shakespeare or even more.
    I once looked up a text by Walter von der Vogelweide, a Minnesänger from around 1200. I could understand about 50% of the words take or leave.

  25. On April 2, 2021 at 12:41 pm, MTHead said:

    2A, Is just like 3A. Is limiting the power of future tyrants that will naturally arise in government. All government. Their rise is as predictable as rain.
    The people bearing arms was the only/best, check and balance available to stop them.
    Ask yourself this. Would you have a free state if a “well regulated militia”, walked into your town tomorrow? You would not.
    And the only, “regulating” factor on a tyrant doing so would be people having/ bearing arms against them if necessary.

  26. On April 3, 2021 at 7:18 am, Pylot said:

    The definition of regulated, as used in the Constitution in the Second Amendment is “supplied”. A well supplied militia…..

  27. On April 3, 2021 at 11:53 am, Longbow said:

    Mr Lund.

    First, the States are NOT political subdivisions of the Federal Government. The people of the several sovereign States CREATED the Federal Government, delegating to it certain of their own powers.

    The Second Amendment to our Constitution, is not a grant, a gift, an endowment, or an allowance. It is a guarantee that the new Federal Government, with newly delegated powers shall NOT EVER interfere with the People’s Natural, God given, and Constitutionally secured, RIGHT to keep and carry their own arms.

    Which arms do the people have a right to keep and carry? The same arms used by an infantryman in an army of the day. Yes that includes machineguns, mortars, etc…

    Yes, language does evolve over time. Principles do not. Principles are like gravity. They apply today, the same as they applied yesterday, or last week, or one thousand years ago. The meaning of the Second Amendment is the same as it was two hundred years ago. The framers had one intent in mind. That intent applies the same today.

  28. On April 3, 2021 at 11:55 am, Longbow said:

    As to “Regulated”…

    It meant “to be put in good order.”

    If a militia assembles, it must have a uniform “regulation”, or it is just a mob.

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