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.
