"Well-regulated"

[Scarberry, Mark]

I'm 47. When I turned 45 (and per the statute was kicked out of a militia I
did not know I belonged to), did I lose any 2d Amendment rights I might have
had?
 
Mark S. Scarberry 
Pepperdine University School of Law 
mark.scarberry at pepperdine.edu 

-----Original Message-----
From: Stanley M. Morris [mailto:smmorris at RMI.NET]
Sent: Wednesday, October 18, 2000 2:13 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: "Well-regulated"


The founders' ideas appear to be embodied in the current US Code. Some one
early on in this thread talked about requiring week-end training for all.
Since wheel-chair bound citizens probaly don't fit the able-bodied
classification they might well be exempt, although given the computer war
stratagies of today would probably be wecome. OTOH, I don't see anything in
the current definition of militia which would restrict gun ownership. 

As I understand Prof. Amar's arguments in his book "The Bill of RIghts" the
organized militia was considered to be too close to the standing armies they
feared. The unorganized militia was everybody else, which is why we still
have "Selective Service" and until the 60's high schools tended to have
rifle clubs. Was O'Brien in violation of his 2nd Amendment duties when he
burned his card? 



(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.


10 USCA s 311 


Stan Morris, Atty
P.O.Box 879
Cortez, CO 81321
970.565.3771 (voice)
970.565.2739 (fax)



At 11:38 AM 10/18/2000 -0700, you wrote: 



        A few thoughts about "well-regulated": 

        1)  Contemporaneous sources suggest that "well-regulated" meant
"well-disciplined" or "well-functioning."  See 13 Oxford English Dictionary
524 (2d ed. 1989) (offering definition "regulated . . . . b. Of troops:
Properly disciplined.  Obs. rare [providing example from 1690] . . . .");
cf., e.g., Articles of Confederation art. VI, ¶ 4 (insisting that "every
State shall always keep up a well regulated and disciplined militia,
sufficiently

armed and accoutred"); Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 128
(1837) ("The object of all well-regulated governments is, to promote the
public good, and to secure the public safety"); Olney v. Arnold, 3 U.S. (3
Dall.) 308, 314 (1796) (discussing "the policy of all well-regulated,
particularly of all republican governments"); The Federalist No. 6, at 32
(Alexander Hamilton) (Jacob E. Cooke ed., 1961) ("Sparta was little better
than a well regulated camp"); The Federalist No. 83, at 567 (Alexander
Hamilton) (Jacob E. Cooke ed., 1961) ("The capricious operation of so
dissimilar a method of trial in the same cases, under the same government,
is of itself sufficient to indispose every well regulated judgment towards
it").  See generally Glenn

Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev.
461, 474 (1995). 

        2)  This meaning, the more modern meaning, and the Militia Clauses
in the body of the Constitution suggest that the government would have had
substantial power to regulate the armed citizenry in various ways, for
instance by requiring people to train with guns and to own guns (see the
Militia Act of 1792, which required pretty much all adult white male
citizens up to age 45 to own a gun).  I think many of what we now call
"regulations" of gun ownership, probably including registration requirements
and the like, would be authorized, not just because of the term
"well-regulated" but also because the Framers generally thought that the
exercise of individual rights could be in some ways regulated but not
prohibited.

        3)  However, I know of no contemporaneous or for that matter more
modern authority that would suggest that "well-regulated militia" meant that
the government could limit the right to bear arms to only a small fraction
of the people.  In fact, the contemporaneous sources are to the contrary;
they portray the well-regulated militia as being the armed citizenry -- not
just the police or the army, and not just malcontents, but everyone.  See
H.R. Doc. No. 69-398, at 1030 (1927) (documenting Rhode Island's proposed
amendments to U.S. Constitution: "That the people have a right to keep and
bear arms; that a well regulated Militia composed of the body of the people
capable of bearing arms, is the proper, natural and safe defence of a free
State"); id. at 1036 (documenting New York's proposed amendments to U.S.
Constitution, in which right to bear arms amendment is identical to Rhode
Island's proposal, except for capitalization); id. at 1047 (documenting
North Carolina's proposed amendments to U.S. Constitution: "That the people
have a right to keep and bear arms; that a well regulated Militia composed
of the body of the people, trained to arms, is the proper, natural and safe
defence of a free State"; id. at 1030 (documenting Virginia's proposed
amendments to U.S. Constitution, in which right to bear arms amendment is
same as in North Carolina formulation except for comma before "trained");
see also Va. Const. Bill of Rights § 13 (1776) ("That a well regulated
militia, composed of the body of the people, trained to arms, is the proper,
natural, and safe defense of a free state . . . ."); 1 Annals of Cong. 778
(Joseph Gales ed., 1789) (quoting early House draft of Second Amendment that
said "[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 . . . .").  And this makes sense:  If
"well-regulated militia" let the government limit the group to a small set
of favored people, and limit the right to bear arms to that group, then this
would make the constitutional provision instantly negatable by the very
government that it was meant to constrain.

        Of course, "composed of the body of the people" couldn't mean
composed of all the people -- women were excluded, as were the young and the
old; but the language strongly suggests that the "well-regulated militia"
referred to a major portion of the able-bodied male citizenry, rather than
just a select subgroup.  Small, specially recruited groups, such as today's
National Guard, were in the late 1700s called "select militias," not
"well-regulated" ones, and were widely disliked.  See Joyce L. Malcolm, To
Keep and Bear Arms: The Origins of an Anglo-American Right 148 (1994)
("Because of their long-standing prejudice against a select militia as
constituting a form of standing army liable to be skewed politically and
dangerous to liberty, every state had created a general militia.").

        4)  So the bottom line:  The government was certainly expected to
train the militia, and make it "well-regulated" in the sense of
well-organized and well-trained, and it quite likely has the right to impose
some regulations of gun ownership.  But "well-regulated" never meant
"limited to a small group, which is the only one that would be allowed to
keep and bear arms."  So, yes, it's true that the 2nd Am is the only one
that uses the term "well-regulated" (though not as to the right, but only in
the justification clause), just like the 4th Am is the only one that is
limited to "unreasonable" conduct, and the 7th is the only one that limits
itself to "Suits at common law."  But just as the Court should resist
arguments that the government has the power to nullify the 4th Am by
defining what's "reasonable," or to nullify the 7th Am by turning all
common-law causes of action into statutory ones, so it should resist
arguments that the government has the power to nullify the 2nd Am by
deciding that any prohibition of guns is a permissible regulation.


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