“Settle” the Militia

THE UNITED STATES CONSTITUTION FOLLOWED THE LONG ESTABLISHED LEGAL PATTERN OF “SETTLING” THE MILITIA IN EVERY INDEPENDENT STATE

“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” (footnote 2).

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.

1746: An ACT for settling the Militia of the Towns of Bristol, Tiverton, Little-Compton, Warren, and Cumberland in the Colony of Rhode Island.

Every American colony would “settle” her Militia, that is they would “establish” the Militia so as “[t]o place in a fixed or permanent condition” to enable a self-governing community to provide for its own self-defense, not individually but collectively, pursuant to statute. Rhode Island’s legislators themselves first “settled the Militia”—for example, by designating which Towns should raise what were called “train’d Band[s] of Foot Soldiers” and “Troop[s] of Horse”. Then they “regulated the Militia”—for example, by specifying what equipment Militiamen should procure; how individuals not called to train or otherwise serve on a regular basis in the “Band[s]” and “Troops” should participate in the Militia; who among otherwise eligible residents might be exempted from some types of Militia service; how infractions of Militia regulations were to be punished; and so on.

This 1746 act established those particular Militia Units for the first time, and thereby “settling the Militia” pursuant to statute—that is to “[t]o place in a fixed or permanent condition”:

“there shall be one train’d Band of Foot Soldiers in the Town of Bristol, and two train’d Bands of Foot Soldiers in the Town of Tiverton, and one train’d Band of Foot Soldiers in the Town of Little-Compton, and one train’d Band of Foot Soldiers in the Town of Warren, and one train’d Band of Foot Soldiers in the Town of Cumberland. And that one Troop of Horse be raised in the County of Newport: And that so many of those in the Towns of Tiverton and Little-Compton, who are properly equipt for Troopers, and desire to continue so, be Part of said Troop of Horse.” (footnote 1)

Footnotes:

1.) EN-37 — An ACT for settling the Militia of the Towns of Bristol, Tiverton, Little-Compton, Warren, and Cumberland, LAWS, Made and pass’d at a General Assembly of His Majesty’s Colony of Rhode-Island and Providence-Plantations in New-England, begun and held (by Virtue of a Warrant from his Honour the Governor) at Providence, on the seventeenth Day of February, 1746, in Public Laws of Rhode Island, 1744, at 30-31. 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 315.

From 1672 Virginia recognized the lawful requirement of individual armament for service in the ‘settled’ community self-defense structure—Militia.

From the earliest days, Virginia recognized, as she declared in 1672 and reaffirmed in 1676, that “against all tymes of danger it ought to be the care of all men to provide that their armes and habiliments for war, be alwayes kept fixed and fitt for service” (footnote 1). This entailed not merely the arming of individuals randomly or in ad hoc groups, but their systematic organization within effective Militia.

Virginians realized that their Militia was the community’s “proper defence, in time of danger”—so whenever complaints arose (as in 1738 and 1755) that the existing establishment “hath proved very ineffectual”, remedial action was taken specifically to improve the Militia, in terms of “training the persons listed to serve therein, and reducing them under a proper discipline” more efficaciously than before, not to replace that institution with some other, wholly untried means of defense. (footnote 2) Indeed, “the good people of Virginia” did not learn only through their Declaration of Rights in 1776

THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; * * *

* * * [t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them[; and]

* * * * *

* * * [t]hat 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[;] (footnote 3)

or only in 1784 and 1785 that “the defence and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty”; (footnote 4) but knew from at least as early as 1723 that “a due regulation of the Militia is absolutely necessary for the defence of this country”. (footnote 5)

Footnotes:

1.) EN-725 — ACT I, An act for the defence of the country, AT A GRAND ASSEMBLIE HOLDEN AT JAMES CITTIE BY PROROGATION FROM THE TWENTIETH OF SEPTEMBER[,] 1671, TO THE TWENTY-FOURTH OF SEPTEMBER[,] 1672, in Laws of Virginia, Volume 2, at 294. This Act was ordered to “be putt into strict and effectual execution”, AT A GRAND ASSEMBLIE HELD ATT JAMES CITTIE BY PROROGATION FROM THE ONE AND TWENTIETH DAY OF SEPTEMBER, 1674, TO THE SEAVENTH DAY OF MARCH, 1676, in Laws of Virginia, Volume 2, at 339. 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 315.

2.) EN-726 — CHAP. II, An Act, for the better Regulation of the Militia, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 16; CHAP. II, An Act for the better regulating and training the Militia, § I, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 530. 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 315.

3.) EN-727 — A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government, 12 June 1776, Articles 1, 2, and 13, At a General Convention of Delegates and Representatives, from the several counties and corporations of Virginia, held at the Capitol in the City of Williamsburg, on Monday the 6th of May, 1776, in Laws of Virginia, Volume 9, at 109, 111. 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 315-316.

4.) EN-728 — CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § I, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,], one thousand seven hundred eighty-four, in Laws of Virginia, Volume 11, at 476; CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, § I, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] in one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 9. 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 316.

5.) EN-729 — CHAP. II, An Act for the settling and better Regulation of the Militia, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 118. 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 316.

Samuel Johnson in his dictionary defined “settle” as “[t]o establish” and “[t]o fix unalienably by legal sanctions” (footnote 3)—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”. (footnote 4 )

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”; (footnote 5) “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”. (footnote 6)

Footnotes

1.) For an overview of Virginia’s Militia in that era, see James B. Whisker, The American Colonial Militia, Volume 5, The Colonial Militia in the Southern States, 1605-1785 (Lewiston, New York: The Edwin Mellor Press, 1997), at 5-93

2.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1318, definition 1 (transitive verb) and definition 1 (intransitive verb). Accord, The Compact Edition of the Oxford English Dictionary (New York, New York: Oxford University Press, 1971), Volume 2, at 2751, definitions 4.c., 4.f., and 6, and at 2752, definition 31; Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (Springfield, Massachusetts: G. & C. Merriam Company, 1954), at 2293, definition 12; Webster’s Third New International Dictionary of the English Language (Springfield, Massachusetts: G. & C. Merriam Company, 1971), at 2079, definition 6a.

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 4 and 9 in both the First (1755) and the Fourth (1773) Editions. (Neither edition serially numbered its pages.)

4.) Id., in both the First (1755) and the Fourth (1773) Editions.

5.) Id., definitions 1 and 2, in both the First (1755) and the Fourth (1773) Editions.

6.) Webster’s Revised Unabridged Dictionary, (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1211, definitions 1, 2, and 3. Accord, The Compact Edition of the Oxford English Dictionary, (New York, New York: Oxford University Press, 1971), Volume 2, at 2473, definitions 1., 1.b., and 2.