Last Updated on January 15, 2023 by Constitutional Militia
“well regulated Militia” (Second Amendment)
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“[1] 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”.
“Well regulated Militia” (Second Amendment)
When THE PEOPLE incorporated “the Militia of the several States” into their new Constitution’s federal system, they knew full well that these were statutory institutions already in existence, separate in every State and each one the creature of its own State’s laws. When THE PEOPLE referred to “[a] well regulated Militia” in the Second Amendment, they knew exactly what the salient principles of “regulat[ion]” were, because those principles could be found, repeated again and again, in statute after statute the Colonies and then the independent States had enacted throughout the 1600s and 1700s. And when THE PEOPLE authorized Congress “[t]o provide for organizing, arming, and disciplining, the Militia” [2], they knew to the last detail what those activities entailed, because they were familiar with the “well regulated Militia” the Colonies’ and States’ statutes had produced in the past.
Although the Constitution did not supply painstakingly detailed definitions, it cannot have left the meanings of its key terms—“well regulated”,[3] “organizing”, “arming”, “disciplining”, “governing”, “training”,[4] “the people”, “keep”, “bear”, “Arms, and “infringe[ ]”[5] — 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”[6] 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”,[7] and on the preparedness of which the very survival of the Union might depend.[8]
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”.[9] 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.[10]
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.[11]
When the Second Amendment referred to “A well regulated Militia”, the words “well regulated militia”, “to better regulate the militia”, “for better regulation of the militia”, and the like had been used in the titles and bodies of pre-constitutional Militia statutes, repeatedly again and again, in statute after statute in all the American Colonies and then independent States for over 150 years. The same statutory pattern continued in all the several States after the ratification of the Constitution until Congress, in 1903, purported to nationalize “the Militia of the several States” into a “standing army”—The National Guard.
