A procedure popular among defenders of the Second Amendment who are attempting to define “[a] well regulated Militia” is to cite definitions from then contemporary dictionaries. Relying on such methodology alone results in shoddy constitutional analysis. For the “technical” meaning of a word or phrase is the particular meaning the law attaches to it, which almost always will be narrower and more precise than the meaning attributed to it in common parlance or in some general definition from a popular dictionary. And when the issue is the interpretation of a specifically legal document—and no document could be more specifically legal than “the supreme Law of the Land” itself. (footnote 2)
Contemporary Dictionaries Not Necessarily Definitive As to the Meaning of any Word or Technical Phrase in the Constitution
Contemporary Dictionaries Not Necessarily Definitive As to the Meaning of any Word or Technical Phrase in the Constitution
“well regulated Militia” Not Definitive From Any Dictionary in 1791 or Now
To Americans during the pre-constitutional period, the verb “regulate” meant “[t]o adjust by rule or method” and “[t]o direct”. (footnote 3) And the adverb “well” meant “[s]kilfully; properly”—“[i]t is used much in composition, to express any thing right, laudable, or not defective”. (footnote 4) By themselves, though, these general dictionary definitions are not conclusive of the constitutional question, because they do not specify by what “rule or method” the Militia are to be “adjust[ed]” and “direct[ed]”, and in comparison to what standard any particular “adjust[ment]” and “direct[ion]” should be deemed “right, laudable, or not defective”.
Another example of the insufficiency of contemporary dictionaries with respect to understanding the constitutional meaning of “[a] well regulated Militia” would be both the first and fourth editions of Samuel Johnson’s famous A Dictionary of the English Language which defined “militia” as “[t]he trainbands; the standing force of a nation”; defined “trainbands” as “[t]he militia; the part of the community trained to martial exercise”; and defined “regulate” as “[t]o adjust by rule or method”. (footnote 5) From this alone, however, it would have been impossible for anyone in 1791, and remains impossible for anyone today, to describe with specificity or surety what the Second Amendment meant or still means by “[a] well regulated Militia”. To qualify as such a “Militia”, what “part of the community” must be “trained”, to what “martial exercise”, and by what “rule or method” that will enable it to constitute a “standing force”? No dictionary by itself can answer any of these questions. (footnote 6)
- Although the Constitution did not supply painstakingly detailed definitions, it cannot have left the meanings of its key terms to be settled by editors of popular dictionaries.
Although the Constitution did not supply painstakingly detailed definitions, it cannot have left the meanings of its key terms—“well regulated”, (footnote 1) “organizing”, “arming”, “disciplining”, “governing”, “training”, (footnote 2) “the people”, “keep”, “bear”, “Arms, and “infringe[ ]” (footnote 3) —to be settled by the editors of popular dictionaries. When ratifying the Constitution in 1787 and 1788, WE THE PEOPLE would never have assigned to “the Militia of the several States” the vital responsibility and authority “to execute the Laws of the Union, suppress Insurrections and repel Invasions” (footnote 4) without some measure of certainty that the Militia would always be “well regulated” for those tasks, and therefore without some expectation, firmly based on experience, as to how they would be “well regulated”. As any American of that era could see on inspection, the Constitution’s federal system itself precluded a delegation to Congress of unlimited discretion to fix—in any whimsical manner its Members might choose—all of the standards to be applied within the general categories of “organizing”, “arming”, “disciplining”, “governing”, and “training”. For the Militia incorporated in that system were “the Militia of the several States”, already in existence throughout the country, not some new “Militia of the United States” the characteristics of which Congress would be entitled to stipulate. Yet the federal system also precluded unlimited authority for the States to regulate their Militia in some possibly slipshod fashion, because the Militia were constitutional establishments that might be “call[ed] forth” to “be employed in the Service of the United States”, (footnote 5) and on the preparedness of which the very survival of the Union might depend. (footnote 6) Moreover, in ratifying the Second Amendment between 1789 and 1791, WE THE PEOPLE emphasized that the Militia must always and everywhere be sufficiently “well regulated” to be capable of fulfilling all of the duties “necessary to the security of a free State”. In that context, the meaning of “well regulated” could not possibly have been treated as an empty vessel into which public officials, politicians, special-interest groups, legal theorists among the intelligentsia, or anyone else could in the future pour whatever tendentious or even spurious legalistic bellywash they might wish.
Immediately prior to the Constitution, the Articles of Confederation provided that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered”. (footnote 7) Once again, though, the document did not specify what “well” and “sufficiently” actually entailed. Instead, the Articles left to the States the responsibilities to fix and apply the necessary standards. Such an approach was perfectly satisfactory at that time, though, because the States were then fixing and applying adequate standards—and as States or Colonies had been doing so for more than a century theretofore—in a manner that was certain, consistent, comprehensive, and completely ascertainable, because it had been and was being written down in hundreds of Militia statutes enacted throughout the pre-constitutional period. These statutes supplied the actual, fully verifiable meaning of “well regulated and disciplined militia, sufficiently armed and accoutred” as Americans had understood those terms for decades and even generations prior to ratification of the Articles, the Constitution, and the Bill of Rights. (footnote 8)
1.) U.S. Const. amend. II.
2.) U.S. Const. art. I, § 8, cl. 16.
3.) Id. at 4.
4.) U.S. Const. art. I, § 8, cl. 15.
5.) U.S. Const. art. I, § 8, cls. 15 and 16.
6.) Id. at 2, pages 1311-1312.
7.) Art. VI, ¶ 4.
8.) Id. at 2, page 1312.
- As with any other statute, the Constitution must be read as an entirety, consistently interrelating all of its provisions. This applies to the Second Amendment.
As with any other statute, the Constitution must be read as an entirety, consistently interrelating all of its provisions. (footnote 1) The selfsame mode of construction applies to the Second Amendment. For all parts of the same law “must be read in relation to each other”, (footnote 2) and “reconciled so as to produce a symmetrical whole”. (footnote 3) All other things being equal, “identical words used in different parts of the same act are intended to have the same meaning”. (footnote 4) So “[w]hen the same term which has been used” in one clause of the Constitution is used in another, “it must be understood as retaining the sense originally given to it”. (footnote 5) Therefore, when the Constitution first empowers Congress “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”, (footnote 6) “the Militia” and “them” must refer to “the Militia” in the Constitution’s next relevant clause: namely, “the Militia of the several States”, of which Militia the President “shall be Commander in Chief * * * when [they are] called into the actual Service of the United States”. (footnote 7) And these “Militia of the several States” must be the very same “well regulated Militia * * * necessary to the security of a free State” of which the Second Amendment then speaks, if only because each and every State in the Union—that is, “the several States”, as the Constitution always describes them collectively (footnote 8)—must be taken to be “a free State” within the Amendment’s understanding of that term. So, “the Militia of the several States” that Congress is empowered “[t]o provide for organizing, arming, and disciplining” must also be understood as consisting of “the people” as a whole in each of those States. Furthermore, “the people” with respect to whom the Second Amendment commands that “the right * * * to keep and bear Arms, shall not be infringed” must be the largely selfsame “WE THE PEOPLE” who “do ordain and establish this Constitution for the United States of America”. (footnote 9) For nothing in the Constitution or any of its Amendments identifies any other “people” as entitled to any rights, powers, privileges, or immunities. (footnote 10) And the “Arms” to which “the right of the people” pertains must be the “Arms” necessary for them to serve in “well regulated Militia”, which must be the very same “Arms” (at least in the general terms of purpose, type, and quality) with which Congress is “[t]o provide for * * * arming * * * the Militia”.
1.) See Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 332 (1964); United States v. Wong Kim Ark, 169 U.S. 649, 653-654 (1898); Cherokee Intermarriage Cases, 203 U.S. 76, 89 (1906); Talbott v. Silver Bow County, 139 U.S. 438, 443-444 (1891); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).
2.) United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 222 (1952).
3.) Federal Power Commission v. Panhandle Eastern Pipe Line Company, 337 U.S. 498, 514 & n.21 (1949). Accord, e.g., Richards v. United States, 369 U.S. 1, 11 (1962).
4.) Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Accord, e.g., Commissioner of Internal Revenue v. Lundy, 516 U.S. 235, 249-250 (1996); Gustafson v. Alloyd Company, Inc., 513 U.S. 561, 569-570 (1995); Ratzlaf v. United States, 510 U.S. 135, 143 (1994); Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 342 (1994); Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509 U.S. 209, 230 (1993); Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993); Estate of Cowart v. Nicklos Drilling Company, 505 U.S. 469, 479 (1992); Sullivan v. Stroop, 496 U.S. 478, 484 (1990); Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860 (1986); Morrison-Knudson Construction Company v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624, 633 (1983). Of course, this rule is only presumptive, not absolute. Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86-87 (1934); Atlantic Cleaners & Dyers, 286 U.S. at 433-434.
5.) Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 453 (1805).
6.) U.S. Const. art. I, § 8, cl. 16.
7.) U.S. Const. art. II, § 2, cl. 1.
8.) See U.S. Const. art. I, § 2, cls. 1 and 3, and § 8, cl. 3; art. II, § 2, cl. 1; art. IV, § 2, cl. 1; art. V; art. VI, cl.
9.) U.S. Const. preamble.
10.) See U.S. Const. amends. I, IV, IX, and X.
- The meaning of constitutional provisions is changeless, only their application is extensible.
There remains, however, the further consideration that some words or phrases in “the supreme Law of the Land” (footnote 1) WE THE PEOPLE originally did intend to be taken in their then-contemporary meanings as generalities, but with the expectation that the particular things or activities to which those meanings referred probably would vary from era to era thereafter. Thus the familiar rule of construction that the “meaning [of constitutional provisions] is changeless; * * * only their application * * * is extensible”. (footnote 2) For example, self-evidently the “Commerce” that Congress may “regulate” (footnote 3) has expanded since the late 1700s in terms, not of the legal category “Commerce”, but of the specific economic and technological means, ends, and subjects of “Commerce” that were unknown, and even unpredictable, in that day. The constitutional definition of the category “Commerce” remains the same now as it was then; but the sum total of specific activities that now fall within that definition has greatly increased since the Constitution was ratified. The power of Congress over “Commerce” has not expanded; but the set of possible subjects of that power has.
Similarly for the power of Congress “[t]o provide for organizing, arming, and disciplining, the Militia”. (footnote 4)As will appear on this website, “organizing” the Militia is based upon several principles, two of the most prominent being:
(i) near-universal enrollment of all eligible able-bodied adults; and
(ii) selective exemption for particular individuals based upon their ages, their holding of important public offices, or their engagement in critical private occupations inter alia.
The first of these principles is fixed—indeed, as Article 13 of Virginia’s Declaration of Rights of 1776 set out most clearly, “a well regulated militia” by definition is “composed of the body of the people, trained to arms”. Application of the second principle, though, affords legislators a certain lattitude, provided that they do not expand or contract the scope of exemptions beyond what “the general Welfare” may require and “the common defence” may allow. (footnote 5) “[D]isciplining” the Militia is also both a fixed principle—“a well regulated militia” being “composed of the body of the people, trained to arms”—and a discretionary authority for legislators to mandate forms and methods of “train[ing] to arms” that necessarily must differ for different groups within the populace, and from time to time and place to place, in order to deal most effectively with different threats to “homeland security” whenever, wherever, and howsoever they may arise. (footnote 6)
“[A]rming” the Militia, too, combines fixed principles with a modicum of discretionary legislative power. The fixed principles include:
(i) the arming of all eligible able-bodied adults except for conscientious objectors and those few others who might justifiably be exempted;
(ii) the personal possession by most armed Militiamen of the firearms with which they are to perform their Militia service, those arms to be acquired where practicable in the free market and usually held as their very own private property; and
(iii) the utilization wherever possible of equipment specifically serviceable for Militia duty, which in general requires arms no less up-to-date and effective than those the members of the regular Armed Forces carry. (footnote 7) The discretionary authority relates to what arms in particular will fulfill those requirements, the specifications of which will naturally change along with the threats, the tactics and training, and the technology of the times.
Thus, in the first Militia statute under the Constitution, Congress provided that “every citizen” enrolled in the Militia “shall * * * provide himself with a good musket or firelock * * * or with a good rifle”, (footnote 8) which faithfully followed the pattern set in the pre-constitutional Militia laws, even to the specification of particular types of equipment. Although this Congressional construction of the Constitution nearly contemporaneous with its and the Second Amendment’s ratifications is not evidence of the meaning of “arming * * * the Militia” anywhere near as conclusive as are the pre-constitutional Militia statutes, it is strongly corroborative, to the point of precluding any later Congress from deviating from that construction in general. (footnote 9) Furthermore, for over one hundred years from 1792 to 1903, Congress retained substantially the same requirement, that “[e]very citizen shall * * * be constantly provided with a good musket or firelock * * * or with a good rifle”, (footnote 10) until it finally modified its mandate by authorizing the Secretary of War in the latter year “to issue * * * such number of the United States standard service magazine arms, with bayonets, bayonet scabbards, gun slings, belts, and such other necessary accouterments and equipments as are required for the Army of the United States, for arming all of the organized militia”. (footnote 11) Apparently, during this period Congress presumed (as did the Colonial and State legislatures throughout the entire pre-constitutional era) that, when directed to provide himself “with a good musket or firelock * * * or with a good rifle”, every man would use his best efforts to procure the most technologically up-to-date firearm he could afford. From 1874 to 1887, though, just as the Colonies and independent States had sometimes provided public arms to their Militia, Congress appropriated money “for the purpose of providing arms and equipments for the whole body of the militia, either by purchase or manufacture, by and on account of the United States”. (footnote 12) And from 1887 to 1903, Congress authorized appropriations “for the purpose of providing arms, ordnance stores, and camp equipage for issue to the militia”, with the requirement that “the purchase or manufacture” of this equipment “shall be made under the direction of the Secretary of War, as such arms, ordnance and quartermaster’s stores and camp equipage are now manufactured or otherwise provided for the use of the Regular Army”. (footnote 13) At that point, Congress simplified the situation by standardizing all of the Militia’s arms along with those of the Regular Army. (footnote 14)
1.) U.S. Const. art. VI, cl. 2.
2.) Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 451 (1934) (Sutherland, J., dissenting).
3.) U.S. Const. art. I, § 8, cl. 3.
4.) U.S. Const. art. I, § 8, cl. 16.
5.) See U.S. Const. preamble.
6.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., Chapter 10 (Rhode Island) and Chapter 21 (Virginia). The constitutional connection between “disciplining” and “training” appears most clearly in the provision “reserving to the States respectively * * * the Authority of training the Militia according to the discipline prescribed by Congress”. U.S. Const. art. I, § 8, cl. 16. See, e.g., Timothy Pickering, Jr., An Easy Plan of Discipline for a Militia(Salem, Massachusetts: Samuel and Ebenezer Hall, 1775), which contains a set of instructions for drilling Militiamen.
7.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., Chapters 6 through 9 (Rhode Island) and Chapters 17 through 20 (Virginia).
8.) An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States, Act of 8 May 1792, CHAP. XXXIII, § 1, 1 Stat. 271, 271.
9.) See, e.g., Myers v. United States, 272 U.S. 52, 174-176 (1926).
10.) Revised Statutes of the United States (1873-1874), TITLE XVI, THE MILITIA, § 1628, 18 Stat. 285, 285.
11.) An Act To promote the efficiency of the militia, and for other purposes, Act of 21 January 1903, CHAP. 196, § 13, 32 Stat. 775, 777. The Supreme Court claimed that the Militia Act of 1792 (apparently as later included in the Revised Statutes) was repealed in 1901. Perpich v. Department of Defense, 496 U.S. 334, 341 & note 9 (1990), citing An Act To increase the efficiency of the permanent military establishment of the United States, Act of 2 February 1901, CHAP. 192, § 42, 31 Stat. 748, 758. The latter statute, however, did not contain the word “militia”. It did, however, provide for “the establishment of * * * camp grounds for instruction of troops of the * * * National Guard”—an emerging neologism for the Militia—which it assumed was then, and would continue thereafter, in existence. § 35, 31 Stat. at 757. The term “National Guard”, of course, does not appear in the Constitution at all, let alone as a synonym for “Militia”. See National Guard: Not a Militia
12.) Revised Statutes of the United States (1873-1874), TITLE XVI, THE MILITIA, § 1661, 18 Stat. 285, 290.
13.) An act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia, Act of 12 February 1887, CHAP. 129, §§ 1 and 3, 24 Stat. 401, 401, 402. Continued with an increase in appropriations, An Act To amend section one of the Act of Congress approved February twelfth, eighteen hundred and eighty-seven, entitled “An Act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia”, Act of 6 June 1900, CHAP. 805, 31 Stat. 662.
14.) Unfortunately, in plain violation of the Constitution, Congress also purported to divide the Militia into two components—“the organized militia, to be known as the National Guard * * * , and the remainder to be known as the Reserve Militia”—but to require that only “the organized militia” be armed. Compare Act of 21 January 1903, § 1, 32 Stat. at 775, with § 13, 32 Stat. at 777. This was the first time in American history at which a significant part of the men eligible for the Militia—indeed, decidedly the major part—was not required to be armed (although, of course, the statute did not preclude members of “the Reserve Militia” from being armed by their State governments, or from arming themselves voluntarily). Fortunately, even more than a century later, this error is still correctable, because “no one acquires a vested or protected right in violation of the Constitution by long use”. Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970).
1.) U.S. Const. art. VI, cl. 2.
2.) Id. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 60-61.
3.) Samuel Johnson, A Dictionary of the English Language, First Edition (London, England: W. Strahan, 1755), and Fourth Edition (London, England: W. Strahan, 1773), definitions 1 and 2 in both First (1755) and the Fourth (1773) Editions. (Neither edition serially numbered its pages.)
4.) Id., definition 3 in both the First (1755) and the Fourth (1773) Editions; and definitions 13 in the First Edition and 16 in the Fourth.
5.) Respectively, the sole definition in both the First (1755) and the Fourth (1773) Editions; the sole definition in both editions; and definition 1 in both editions.
6.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 35.
7.) U.S. Const. art II, § 2 cl. 1.
8.) U.S. Const. art. I, § 8, cl. 16.
9.) U.S. Const. amend. II.
10.) Id. at 6, page 73.
11.) See, e.g., W. Blackstone, Commentaries on the Laws of England, ante note 142, Volume 1, at 59-62; Lewis v. United States, 92 U.S. 618, 621 (1876); Wilbur v. United States ex rel. Vindicator Consolidated Gold Mining Company, 284 U.S. 231, 237 (1931); Ex parte Collett, 337 U.S. 55, 61 (1949); Rubin v. United States, 449 U.S. 424, 430 (1981); Albernaz v. United States, 450 U.S. 333, 336 (1981); Rosewell v. LaSalle National Bank, 450 U.S. 503, 512 (1981).
12.) Prigg v. Pennsylvania, 41 U.S. (16 Peters) 539, 612 (1842).
13.) U.S. Const. art. I, § 8, cls. 15 and 16, and art. II, § 2, cl. 1.
14.) Id. at 6, page 69.