Years ago, Cecil, when discussing the meaning of the Second Amendment said that “well-regulated militia” meant “subject to a civilian authority” as opposed to “subject to a lot of regulations”. Does anyone know the source of this? I was arguing with someone on Quora about this an am curious.
Thanks,
Rob
Moved to Great Debates.
Colibri
General Questions Moderator
Not quite sure I want to start yet another gun debate. I was just looking for a cite for Cecil’s comment.
In his column on the subject, Cecil cites Robert Shalhope for the idea, although he doesn’t say he used the phrase.
You may not want to start a gun debate, but unfortunately if I kept it in GQ I would have to stand over it with a shotgun to keep one from breaking out, and I would like to go to bed now.
If it’s of any help, the provision in the English Bill of Rights of 1688 (the assertion of Parliamentary control over the monarch) which is held to be the inspiration for your Second Amendment, read
That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.*
How else can “suitable to their Conditions” and “as allowed by Law” be operationalised without some form of civilian authority?
*One of the objections to James II was that he had changed the rules to allow only gentry to bear arms, irrespective of religion: which was seen as arming Catholics and disarming the Protestant lower orders, and aroused fears of the re-imposition by force of Catholic absolutism, as Louis XIV had done in France only a few years before.
Here is an older article that goes over it.
There is a lot to this article (the above is just the summary), some of which I disagree with but I think it hits some of the highlights as to what ‘a well-regulated militia’ meant to the people back then. The summary for the TLDR crowd is it meant the militia was well formed, trained and equipped/supplied AND that it was under the control of the governing body directing that militia.
I think most interesting is to look at some of the early drafts of the 2nd to see what the intent was, as well as look at the writings of those who drafted it to see what their thoughts were.
You can see the progression of the committee reworking the words to what they thought better suited what they were trying to convey (they failed miserably), but you can see by the earliest drafts what the emphasis was on, which was a personal right to keep and bear arms.
As in Cecil’s article, I think that we need to just acknowledge that times were different then than they are today, that we have a living document specifically for this issue (i.e. times change and the Constitution is a living document that needs to reflect the attitudes of the time it’s currently living in), and if we don’t want a personal right to keep and bear arms any more, if it’s anachronistic, well, we have the means to change that.
Interesting. Seems to me it was mainly about military service and not that the one thing the FFs wanted to be sure Americans had was guns (actually “arms” so really any weapon whatsoever).
From you quote above:
And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. Personal
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. Military
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. Military
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. Military
A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed Military
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. Military
Except for the first one they keep telling us WHY people get to keep arms and that is for the purposes of maintaining a militia/military. Perhaps more telling is they added it after that first example suggesting they didn’t want to just say the people should have weapons. Period. Full stop.
I think it’s interesting and I like that Wiki cite because it’s easier to look at than slogging through the Federalist Papers and other historical stuff.
I’d say half and half here, though note that the first part was the personal right. But it’s clear they were wanting to address the military aspect as well as the personal right, and it’s interesting how the committee progressed through different drafts on those themes. It’s also interesting that they ended up dropping the religious scruples aspect in the final draft…not sure why that is, to be honest.
Like I said, I think they were trying to kill multiple birds with one stone. Obviously, they needed a military force, and while they had a regular army they definitely needed the militias as well to support and bolster those regulars. They also obviously felt that a personal right to keep and bear arms was important…you can see it in the writings of many of the drafters of the Constitution, especially looking at how they felt the difference was between what they wanted and what the British had and how they thought they could ‘fix’ that system or make it better and freer. What sucks is that they watered down what they were trying to do, and made it not only more complicated but more difficult to understand their intent and what they were getting at, especially down the road a few hundred years, and especially if one isn’t willing to slog through their various writings and thoughts on the subject. But then, they figured they had put in a fudge factor…after all, we can change the thing and add amendments or get rid of them, so they probably thought, well, they will work it out.
Following onto this, Robert Shalhope wrote an article entitled The Armed Citizen in the Early Republic (available here). Its thesis appears to be, roughly, that the Second Amendment intended to codify a private right to possess arms along with a communal responsibility bear those arms as part of the militia. (Curiously, in Shalhope’s telling, there was a general concern that there might be an insufficient number of arms in private possession).
You need to view that in the context of the times. Remember, many of the Founding Fathers believed that a standing army was a threat to civil liberties. That’s why there was such an emphasis on militia.
The model was that private citizens would assemble into a ready-made group of soldiers, and they would bring their own military weapons with them.
Another key thing to realize about what the Founders meant by ‘militia’ - the militia as of 1792 was composed of every free able-bodied white male citizen between the ages of 18 and 45. The modern definition is similar, except that it takes away the white and free parts and adds women who are members of the National Guard.
So a proposal to restrict arms to non-militia members could only have the effect of disarming most women, the disabled, and those over age 45. All the youngish able-bodied male citizens are members of the militia by definition.
However, the Militia Act of 1903 established that the militia is the National Guard, which I think most would consider to be well-regulated, notwithstanding the stories I’ve heard from Guard members about what really happens on that one weekend a month. If you reall want to feel the joy of firing full-auto, you have the right to go find a Guard recruiter and raise your right hand. It’s that simple.
This is, of course, false. 10 U.S.C. § 311 is the current law of the land, as I just referenced in the post immediately above.
That’s the “unorganized militia” nonsense, right?
Tell us, is the 1903 law still in effect or isn’t it?
I express no opinion on your irrelevant tangent about a law that did not change the topic at hand, the United States’ definition of ‘militia’.
Tell us, do you believe that the federal government is mistaken about what the United States defines the militia as?
Is this the 1903 law that begins:
“That the militia shall consist of of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able; bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes-the organized militia, to be known as the National National Guard Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.”
Well, maybe, maybe not.
Here’s Article I, Section 8 of the Constitution
It seems pretty clear that the Founding Fathers wanted a Militia to mean something other than a bunch of random men with guns.
Aren’t all military subject to civilian authority?
It occurs to me that, in addition to the effects you mention, it would open the door to legislation empowering the officials in command of the militia to establish controls over the arms in the hands of the militia members (such as requirements that they be stored in gun safes under locked conditions which will be released only upon the order of the proper authorities. To begin with).