"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.
"The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." [1]
On the historic meaning of the Second Amendment: What does "well-regulated" mean?
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. (U.S. Constitution, Amendment II.)
Samuel Johnson, the famous British lexicographer, simply gives "regulate" as "To adjust by rule or method."[2] Of course, one of the meanings for "rule" is "Canon; precept by which the thoughts or actions are directed."[3]
This is the etymological root of "regulate." According to the standard Lewis and Short lexicon: the Latin "regula" meant "a straight piece of wood, ruler or rule ...a rule, pattern, model, example...".[4]
Clearly, we are not merely interested in the etymology of the word "regulate." We are also interested in documented uses of the phrase "well-regulated." Numerous examples are available from the period ranging from the pre-Revolutionary War 18th century through the late 19th century.
"The Oxford English Dictionary gives the following examples of usage for the term 'well regulated': 1709: 'If a liberal Education has formed in us ...well-regulated Appetites, and worthy Inclinations.' ...1812: 'The equation of time ...is the adjustment of the difference of time, as shown by a well-regulated clock and a true sun dial.' ...1862: 'It appeared to her well-regulated mind, like a clandestine proceeding.' 1894: 'The newspaper, a never wanting adjunct to every well-regulated American embryo city.' One definition of the word 'well' in the Oxford English Dictionary is 'satisfactorily in respect of conduct or action.' One of The Oxford English Dictionary definitions for the term 'regulated' is 'b. Of troops: Properly disciplined.'"[5]
The Oxford English Dictionary gives a contemporary definition for "regulate" as "Control or supervise (something, especially a company or business activity) by means of rules and regulations."[6]
Intuitively, things like "appetites" and "clocks" are not "controlled or supervised" by the ipse dixits of executive or legislative bodies. Rather, they are "well-regulated" insofar as they are self-"ruled" in virtue of having their parts properly fitted and maintained.
That this was a common use for the phrase "well-regulated" is further apparent in the construction "her well-regulated mind." For the workings of one's mind, being limited to "private access," are not susceptible to external "regulation" in the contemporary sense.
We are particularly interested in the phrase "well-regulated" as it occurred in discussions of citzens' militias. As was reported, above, the Oxford gives the sense of being "properly disciplined." How this cashes out becomes a bit clearer when we consult the following commentary, from the early 19th century.
"Trainings, whether by companies or by regiments, are but a part of the drill system, and if it is wise, if it is prudent, to have 'a well regulated militia,' it is ...indispensable, that those composing this force should be well trained to the use of arms—that they should, be familiar, not only with the manual exercise, but with the various and approved evolutions in marching—that they should be trained and exercised in companies and regiments, and in this way they would acquire a confidence in each other, which would be influential and highly beneficial when called to active duty."[7]
In the above text being "well-regulated" is transparently linked to being "well-trained."
When one consults the voluminous writings of the Founding Fathers, the conclusion is inescapable: the contemporary "federal government-control"-reading of "regulation" was simply unknown in the 18th century.
"In recent years it has been suggested that the Second Amendment protects the 'collective' right of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."[8]
This same meaning appears also in one of the oral arguments[9] from the recent Supreme Court case District of Columbia v. Heller.[10]
In questioning a Mr. Walter Dellinger, Justice Antonin Scalia asks of the phrase "well-regulated": "It means 'well-trained,' doesn't it? ...Doesn't 'well-regulated' mean 'well-trained'?" Scalia concludes, saying: "It doesn't mean - it doesn't mean 'massively regulated.' It means 'well trained.'"[11]
In general, the Bill of Rights was a statement written so that the average person could detect, without any intermediary, when his rights had been violated.
"[T]he Bill of Rights was designed to inform the people at large of their rights so they could enforce them, not just to trust in and admonish a potentially unresponsive government not to tread on them."[12]
As Stephen Halbrook noted, the Bill of Rights was a public declaration - able to be understood by the meanest yeoman - of the points at which federal powers ended. The "thrust" of the Bill of Rights is a marking out of the domains onto which the government may not trespass. The First Amendment, for instance, is not circumscribing freedom of speech; it is announcing that individual freedom. The Fourth Amendment is not bracing people for police "checkpoints"; it is notifying them of their individual immunity from such molestation. Likewise, the Second Amendment is not laying a foundation for intrusive "regulation" in the modern sense; it is proclaiming the individual right to keep and bear arms.
So much for the question of interpretative issues.
On the historic meaning of the Second Amendment: Is the entire amendment “irrelevant”?
However, another worry with the historic interpretation might be termed "irrelevance." One might ask, for instance: How can the Second Amendment serve as a defense against the rise tyranny in our government in an age in which the "military-industrial complex" provides that government with a wide assortment of weaponry (for example, without limitation, armored vehicles, fully-automatic firearms, lasers, missiles, nanotechnology of various kinds, "Predator"-style drones, sonic weapons and state-of-the-art surveillance) that far outstrips the capabilities of revolvers, rifles and semi-automatics?
There are, in my estimation, really two issues, here. Let me call the first issue "theoretical" and the second "practical."
Theoretically, I have two responses. Number one, suppose that the militia is passé. For example, in his opinion in D.C. v. Heller,[13] Justice Scalia wrote: "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem."[14]
Halbrook: "[A]nother interpretation of the Second Amendment, which opposes any right of 'the people' to have arms, reasons thus: The right to have arms is dependent on a militia being [crucial] for the security of a free state, but despite the clear words of the [second] amendment and the aversions of the framers [to having a standing army],today the standing army allegedly protects freedom.
"This interpretation appears to reduce the amendment to a conditional or hypothetical syllogism, with its first premise as follows: If a well-regulated militia is necessary to the security of a free state (p), then the right of the people to keep and bear arms shall not be infringed (q); that is, p implies q. Standing alone, p and q constitute, respectively, the second premise and the conclusion of the syllogism, which appears thus: [p ⊃ q; p; ∴ q] and is valid by reason of [the logical rule known as] modus ponens.
"Yet the denial of the antecedent, should it be expressed in the second premise, fails to imply the denial of the consequent in [an alternate] conclusion; that is, even if a militia is not necessary for the existence of a free state, [for all that the above reasoning shows] the people still have a right to keep and bear arms. The fallacy of denying the antecedent is committed in this form: [p ⊃ q; -p; ∴ -q.]"[15]
To reiterate: The existence of a well-regulated militia in the 18th century may have been sufficient to justify the widespread bearing of arms. However, even if that sort of militia is outmoded today, such does not show that the right to bear arms is unnecessary.
I myself am not satisfied to leave matters here, though. Number two, I fear that the initial question itself demonstrates the degree to which we have meandered away from the "Spirit of '76."[16] For in 1775, statesman Patrick Henry famously answered a similar question. He was addressing the concern that the colonists faced well-nigh impossible odds in confronting a British army that was better armed, better equipped, better financed and better trained. Henry answered:
"They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed...?"[17]
The "Spirit of '76" was, if anything, arguably the will to oppose tyranny - even in the face of impossible odds. To the extent that the odds faced today are even more lopsided, given the fact that Americans have allowed for the formation of a "standing army" - ignoring the advice of esteemed forefathers such as Thomas Jefferson[18] and Noah Webster[19] – lovers of liberty are "weaker" than were the colonists. This is obvious. But are we on that account obliged to give up the last shreds of liberty? Henry:
"Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?"[20]
I think that the theoretical answer is clear: Insofar as we wish to continue to pass the torch of liberty, delivering it to posterity in at least something of the form in which it was delivered to us, the we are obligated to recognize the importance of an armed citizenry.
As Alexander Hamilton once said: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted [sic] with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."[21]
Perhaps modernists at once declare, in the words of the character Tank, from the Matrix:[22] "[W]hat you're talking about is suicide."[23]
Patrick Henry gives the rejoinder – the position embraced by our forefathers: "Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"[24]
Therefore, it seems that we are left with the practical question: How does a liberty-loving populace prepare itself for the possibility of having to repel an onslaught from an advanced military under the command of a tyrannical government?
This is indeed a difficulty. I should insist, though, that the difficulty is practical and not theoretical. To put it another way, "x is difficult to do" hardly entails that "x ought not be done."
The matter is not hopeless.[25]
As I have written in another place: "If ...the domestic government ...maintain[s] a standing army; and if ...usurpers are in command of that army; then, surely, successful resistance would require, at the very least, some measure of parity with respect to weaponry and training."[26]
However, it is beyond my competence to tease this out in any detail. Perhaps weaponry is not as important as training. Perhaps a genius strategist could turn the tide.[27]
On the other hand, the pressure could be relieved a bit were the United States to see friends of liberty once again populating our legislatures and courts. The disparity between the (hypothetical) well-regulated militias and the military could be lessened in virtue of the reduction of military spending, the defunding of weapons development and the outlawing of various "exotic" tools and surveillance technologies.[28]
On the historic meaning of the Second Amendment: Final thoughts
Let me conclude by evidencing that I am an "equal-opportunity" critic. Whereas I believe that many on "the left" err in their interpretation of words such as "bear," "militia" and "well-regulated," I also believe that many on "the right" err in virtue of their blind support of the standing army. Jefferson, on receiving from James Madison a draft copy of the work of the Constitutional Convention in 1787, wrote back: "...I do not like ...the omission of a bill of rights providing clearly and without the aid of sophisms for ...protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land."[29]
In his "Draft Constitution for Virginia 1776," Jefferson put it directly: "There shall be no standing army but in time of actual war."[30]
Suffice it to say that anyone wishing to defend a robust conception of the Second Amendment ought to resist the disarmament of the people as fervently as she resists the strengthening of the military.
- Matthew J. Bell
Notes:
[1] Noah Webster, "An Examination Into the Leading Principles of the Federal Constitution by a Citizen of America," Paul Leicester, ed., Pamphlets on the Constitution of the United States Published During Its Discussion by the People, 1787-1788, Brooklyn, N.Y.: n.p., 1888, p. 56.
[2] Samuel Johnson, A Dictionary of the English Language, 3rd ed., Dublin: W. G. Jones and Thomas Ewing, 1768, n.p.
[3] Ibid.
[4] Charlton T. Lewis and Charles Short, A Latin Dictionary, Oxford [U.K.]: Clarendon Press, 1988, p. 1553. In the Christian tradition, the "regula fidei," or "rule of faith," marks out a certain set of beliefs and practices that are held to be essential for Christianity. Historically, these "revealed truths" were not handed from the top-down, as it were, by decree from any ecclesiastical body; they originated from the bottom-up, as inferences from scripture and from the writings of the Apostolic Fathers. The Greek word "kanon" similarly designates a "measuring rod," and is the controlling meaning in phrases such as the "biblical canon." See Frederick William Danker and Walter Bauer, A Greek-English Lexicon..., Chicago and London: Univ. of Chicago Press, 2000, pp. 507-508.
[5] Daniel J. Schultz, "The Second Amendment: The Framers' Intentions," Lect Law, <http://www.lectlaw.com/files/gun01.htm>; citing The Oxford English Dictionary, 2nd ed., Oxford [U.K.]: Clarendon Press, 1989.
[6] "Regulate," <http://www.oxforddictionaries.com/us/definition/american_english/regulate>.
[7] Entry, Tues., July 1, 1823, Journal of the House of Representatives of the State of New Hampshire, at Their Session, Holden [sic] at the Capitol in Concord, Commencing on the First Wednesday of June, and Ending the Third Day of July, Anno Domini One Thousand Eight Hundred and Twenty-Three, Concord, N.H.: Jacob B. Moore, 1823, p. 271. Note that in this context, the word "evolution" is a tactical term meaning: "The motion made by a body of men in changing their posture, or form of drawing up," according to the fourth entry under "evolution," in Samuel Johnson, A Dictionary of the English Language, London: J. F. C. Rivengton, et al., 1792, n.p. Again, Noah Webster, in his Americanized version of Johnson's esteemed dictionary, defined the verb "bear" in the following terms: "To wear; as, to bear a sword ...; to bear arms in a coat." He furthermore gave the example of having a handgun on one's person as an instance of "bearing arms." An American Dictionary of the English Language, New York: S. Converse, 1828, n.p..
[8] Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, rev. ed., Albuquerque, N.M.: Univ. of N.M. Press, 2013, p. xi. Halbrook notes that "the Tenth Amendment ...clearly distinguishes between the states and the people." Ibid., p. 93. Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." "Tenth Amendment," U.S. Constitution, Cornell Univ. Law School, <https://www.law.cornell.edu/constitution/tenth_amendment>. "It is unlikely that the framers would have intended to commit blatantly the fallacy of equivocation by shifting the meaning of 'the people' from amendment to amendment, or that they would have risked the fallacy of ambiguity by defining the phrase 'the people' in the Second Amendment in such an unusual manner, that is, as 'those people in a select state militia.'" Halbrook, op. cit., p. 93.
[9] No. 07-290, March 18, 2008.
[10] D.C. v. Heller, 554 U.S. 570 (2008).
[11] Argument transcript, op. cit., Alderson Reporting Co., p. 26.
[12] Halbrook, op. cit., p. x.
[13] Loc. cit.
[14] Op. cit., p. 67. On whether the standing army is a boon or a bane, recollect the words of our founders: "That as the colonies possess a right of appropriating their gifts, so are they entitled at all times to enquire into their application, to see that they be not wasted among the venal and corrupt for the purpose of undermining the civil rights of the givers, nor yet be diverted to the support of standing armies, inconsistent with their freedom and subversive of their quiet." John Hancock, "Resolutions of Congress on Lord North's Conciliatory Proposal," Philadelphia, Jul. 31, 1775; archived online at Avalon Project, Yale Law School, <http://avalon.law.yale.edu/18th_century/jeffnort.asp>.
[15] Halbrook, op. cit., pp. 93-94.
[16] Another facet of this move away from our founding "Spirit" can be located on the political "right." For example, Thomas Jefferson opined: "The spirit of this country is totally adverse to a large military force." Thomas Jefferson, letter to Chandler Price, Feb. 28, 1807; reproduced by Henry Augustine Washington, The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private: Published by the Order of the Joint Committee of Congress on the Library, From the Original Manuscripts, Deposited in the Department of State, vol. 4, Washington, D.C.: Taylor and Maury, 1858, p. 47.
[17] Patrick Henry, speech, Mar. 23, 1775; posted as "Patrick Henry - Give Me Liberty Or Give Me Death," Avalon Project, Yale Univ. Law School, <http://avalon.law.yale.edu/18th_century/patrick.asp>.
[18] "There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." Thomas Jefferson, letter to David Humphreys, Mar. 18, 1789; quoted in Joyce Appleby and Terence Ball, eds., Jefferson: Political Writings, Cambridge [U.K.]: Cambridge Univ. Press, 1999, p. 113.
[19] See the introductory quotation.
[20] Loc. cit.
[21] Alexander Hamilton, Federalist No. 28; archived online at Avalon Project, Yale Univ. Law School, <http://www.yale.edu/lawweb/avalon/federal/fed28.htm>.
[22] Warner Bros., 1999.
[23] “The Matrix,” 1999, quotes, Internet Movie Database, <http://m.imdb.com/title/tt0133093/quotes?qt=qt1229257>.
[24] Loc. cit.
[25] I discuss this a bit in my earlier weblog post Matthew J. Bell, "Towards a Jeffersonian Appraisal of the SCOTUS 'D.C. Gun Ban' Decision," Liberty Bell [weblog], Jun. 30, 2008, <http://bellofliberty.blogspot.com/2008/06/towards-jeffersonian-appraisal-of.html>.
[26] Ibid.
[27] For inspiration, if not advice, one might consider Cormac O'Brien's Outnumbered: Incredible Stories of History's Most Surprising Battlefield Upsets (Beverly, Mass.: Fair Winds Press, 2010). For a more theatrical reminder that numbers and weapons do not mean everything, see Zack Snyder's fictionalized retelling of the Battle of Thermopylae, in the film 300 (Warner Bros., 2007).
[28] I add, however, that the fact that the U.S. in theory records a massive portion of communications does not imply that these records are meaningfully or usefully archived or accessible - let alone "monitored" in anything like real-time.
[29] Thomas Jefferson, letter to James Madison, Dec. 20, 1787; archived online at Library of Congress, <http://www.loc.gov/item/mtjbib003193/>. I hasten to add that those on "the right" also frequently err in terms of reducing the right to bear arms to mere hunting or personal self-defensive exercises.
[30] Thomas Jefferson, Jun. 1776; archived online at Avalon Project, Yale Univ. Law School, <http://avalon.law.yale.edu/18th_century/jeffcons.asp>.
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