Last Updated on August 20, 2022 by Constitutional Militia
“Settle” the Militia
The United States Constitution followed the long established legal pattern (see for example, Virginia and Rhode Island) of “settling” the Militia in every independent State, and then regulating them with identical forms and functions according to law for purposes of community self-reliance through community self-government.
“Settle” the Militia
The distinction between “settling” and “regulating” the Militia is no mere linguistic quibble—you say “potato” and I say “potahto”—but has significant legal consequences. In the common usage of pre-constitutional times, as well as today, “settling” or to become “settled” meant establishing or being established in the first instance: “[t]o place in a fixed or permanent condition”—“to establish; to fix”—or “[t]o become fixed or permanent”, “to assume a lasting form, condition, [or] direction * * * in place of a temporary or changing state”.
When Constitution incorporated “the Militia of the several States” into its federal system, and the Second Amendment declared that “[a] well regulated Militia” is “necessary to the security of a free State”, they “settled” the Militia once and for all by “fix[ing them] unalienably by legal sanctions” consistent with the statutory pattern in the American colonies in existence for over 150 years.
Samuel Johnson in his dictionary defined “settle” as “[t]o establish” and “[t]o fix unalienably by legal sanctions”—and in his entries for “militia” even provided a specific example of such usage: “The militia was so settled by law, that a sudden army could be drawn together”.
When the original Constitution incorporated “the Militia of the several States” into its federal system, and the Second Amendment declared that “[a] well regulated Militia” is “necessary to the security of a free State”, they “settled” the Militia once and for all by “fix[ing them] unalienably by legal sanctions” within America’s governmental structure. Distinguishably, during pre-constitutional times, “to regulate” meant (and still means) to arrange an already established (or “settled”) institution in proper order according to some standard: namely,”[t]o adjust by rule or method” and “[t]o direct”; “to direct by rule or restriction” and “to subject to governing principles or laws”; “[t]o put in good order”; and “[t]o adjust, or maintain, with respect to a desired * * * condition”.