lesl at UDEL.EDU
Thu Oct 19 16:01:05 PDT 2000
I would simply note, with reference to the fellow who said that 18th
cent and early 19th cent references were to individual rather than to
collective gun-toting rights, that every on e o f these quotes from
Eugene seems to be a bout a right to bear arms as part of a military
unit, organized as such. (one comprised of the general body of male
citizens [who would be trained in the use of arms and expected to pay
for their own.] none of them strikes me as supporting a right to
private gun use.
> "Volokh, Eugene" 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
> 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
> 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.
More information about the Conlawprof