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Old February 5, 2013, 12:31 PM   #1
P1090
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Well Regulated

Had a discussion today with a company representative in the workplace. We were talking gun rights, and he was of the opinion that the people do not need ARs. Somewhat common, if incorrect, idea. No sense preaching to the choir. When he brought up the Second Amendment, specifically the militia, we began talking about the definition of militia as decided by the Supreme Court. His question was what constitutes 'well regulated'? He agreed that we were the militia, but since we were not regulated by any means, it wouldn't protect "any random nutjob [who owns an evil rifle]." We all know that it was ruled that the people are allowed to bear common arms, but I cannot recall a definition of the term "well regulated."

My internet searching brought up several sites that attempt to convey the founders intent, but I was attempting to find something official on the matter, if there is such a thing. We changed the subject when we realized we were of differing opininos, but I'd like to find an answer for my own, as well as for future discussions. My question is this: Is there an official definition of "well regulated"? Thank you for any help you can offer.

Just do me a favor and remember that I am pro-gun. I write my senators just like the rest of you and donate where and when I can afford to. Not trying to start an argument, just trying to educate myself further on the matter.
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Old February 5, 2013, 12:51 PM   #2
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One of James Madison's fears about the Constitution was, he knew that over time, the meaning of words changed.
To the men of his time "well regulated" simply meant well trained, or, well disciplined.
Don't let anyone tell you that it means that the government can dump a truck load of "regulations" on it like they do now. Back then, the government had VERY LITTLE to say about anything!
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Old February 5, 2013, 12:52 PM   #3
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The definition of "militia" or "well regulated" might make an interesting debate, but has no bearing whatsoever on what the Second Amendment means. The language very clearly says that ". . . the right of the people to keep and bear arms, shall not be infringed." There is no reason to believe that the term "people" means anything different than it does when the same term is used elsewhere in the Constitution, i.e., ALL of the people. If the founders wanted only members of a "well regulated militia" (however defined) to be able to keep and bear arms they would have said that.
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Old February 5, 2013, 12:56 PM   #4
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Quote:
One of James Madison's fears about the Constitution was, he knew that over time, the meaning of words changed.
To the men of his time "well regulated" simply meant well trained, or, well disciplined.
^^^ This.

I think your friend is confusing period usage of the term regulated with the modern terms "administrated, controlled, governed or ruled".

Regulation in that sense was used in the same way as we currently "regulate" double-barreled shotguns so that both bores print in the same target area. It had nothing to do with how the militia was governed or controlled, but how uniformly they were equipped & trained. There were standards suggested for the type of bore & its shooting prowess involved in the language of the times that support the period usage of "regulated" as a technical, not administrative term.

Language & its usage changes over time as well, as has been pointed out. For example when King William III first saw Sir Christoper Wrens architecture, decorations & painted murals in St Paul's Cathedral he said they were "Awfull & Artificial". At the time that was a great compliment because it meant "Awe-inspiring" & "Full of art", almost the exact opposite of current usage of the same words.
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Old February 5, 2013, 01:32 PM   #5
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The need for a definition has been mooted by the SCOTUS decision in District of Columbia v. Heller. They held that the well regulated clause is prefatory, and not militia membership is not a requirement to bear arms. The RKBA is an individual right.
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Old February 5, 2013, 03:29 PM   #6
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Just for the sake of this discussion, let's look at the word as it is defined and its root meaning:

regular- Customary; Orderly; In Conformity; Well-Ordered; Proper;Dependable

regularize - to make regular

regulate - To control; to adjust; to put in order for proper functioning

So looking at the actual meaning of the definition, we can argue that when written, the term "well regulated" meant that the founders were stating that the militia (everyone), in order to function properly, all the people must have the right to arms.

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.

Or in other words:

If we are going to have a proper functioning (regulated) militia that keeps our country free, we must allow the people of our country, the protection of the right to arms.

This is how I read the Militia Clause.
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Old February 5, 2013, 04:13 PM   #7
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In the parlance of the day, "well regulated" meant that it worked and worked well, or was in proper order for working.

As to the militia, this was generally held that when called up, members reported with basic arm and ammunition, camping gear (from blanket to cookpot), and knew the rudiments of military drill.

Militias whose members had all the needed gear, and knew how to use it were considered "well regulated". Those that did not were in need of better regulation. The word, as used then, and in that context did not refer to written rules the way it is commonly used today.

Still in use today, although not common, is the word "regulated" when adjusting the barrels of a double barrel rifle to hit a common point of impact at a given distance, with a given load. The gunsmith "regulates" the barrels until he gets what he wants (what works). Still a valid term, within its context.

The problem with people thinking "well regulated" in the 2nd Amendment means govt rules to be followed is simply they are using the wrong context. And the biggest problem with that is when they don't know, or will not admit that they are using the wrong context.
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Old February 5, 2013, 04:16 PM   #8
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JimDandy has it right. You can linguistically masturbate all day to whatever flavor of meaning you think is contained in the word "militia", but SCOTUS said it doesn't matter -- the right, while containing a militia purpose, also encompasses an individual purpose, completely divorced from any militia concept.
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Old February 5, 2013, 04:35 PM   #9
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Thanks all. Cleared up my understanding. Doubt he'll accept it, but it'll be worth a try at least. Appreciate the help.
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Old February 5, 2013, 04:39 PM   #10
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It is my understanding, from reading through some of the debates on the issue, that people like Madison, wanted the people to maintain the right outside of an organized militia as a balance/control against a militia that might become abusive to the local population (as well as many other reasons).
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Old February 5, 2013, 04:46 PM   #11
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I always use a pretty well-rehearsed point when somebody says "I don't think people need assault rifles".

I start out with something like... "Well, lets just say we're not talking about guns now. Let's say the gov't tried to pass a law saying that you couldn't buy a diesel pickup truck unless you had something that weighed 10k lbs to tow with it... or that you couldn't buy a house with more than 1 bedroom unless you had kids... or that people who live in apartments couldn't own dogs above a certain weight... or pick something they own that you can use as an example.

A normal person would think it's pretty silly or perhaps even downright dumb to buy a gigantic truck just to drive around town. A person would never say though, "I wish they'd pass a law so that everybody has to drive Honda Civics if they work in an office building because "nobody needs" a big truck unless they work in construction".

When you talk about "what somebody needs" outside of the context of guns, you can usually see the light come on in their heads about how dangerous it can be if the gov't starts to dictate what "somebody needs", because their thoughts will drift to all the absurd **** they own that they don't need. It becomes personal to them instead of "somebody elses problem". You can almost always get somebody to admit that "I don't want the gov't telling me what I can and can't own, but I still think nobody needs an assault rifle." At that point, you've at least got them thinking about it, and can progress into a talk about just how fantastic a self-defense weapon an AR is, or talk about the other hunting and sporting applications... they'll listen to you now that their mind isn't completely stuck on "I don't like them".
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Old February 5, 2013, 04:58 PM   #12
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Which makes more sense?

"A well-trained militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed"

"A well legislated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed"

It seems to me that if you are arguing something needs to be well legislated, it makes little sense to include it in a Bill of Rights expresssly saying what the Federal government could not regulate. It also makes the "shall not be infringed" language contrary to your supporting clause.
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Old February 5, 2013, 06:18 PM   #13
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And again Point to Heller. They called well regulated a prefatory clause, or in normal-people-without-a-JD "red herring".
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Old February 5, 2013, 07:05 PM   #14
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The original meaning of "well-regulated" results today in someone being a soldier in the "regular Army" or "a regular" as distinct from a "reservist".

Some people just don't care what Heller says. They have heard about and picture "regulators" (and obey them every day) to the point they are confused about the meaning, and correcting them seems to set them back a little, in my experience. It also opens the door to explain "arms", "keep" and "bear", if their attention span is long enough.

The right is individual, but the militia is composed of individuals acting in concert.

How do they do that effectively if they don't have their own arms and resources to practice? Which idea tends to knock down the idea that the state should have custody of arms owned by individuals, or an expansive right to seize them.
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Old February 5, 2013, 09:46 PM   #15
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IMO, the word "regulated" evolved as the government used it to sell the public on prohibitions and restrictions on our right. It just sounds better to say regulation than restriction or prohibition.

It doesn't make sense that the Congress could protect a right, and give itself power to restrict a right in the same sentence.

And, again, "well-regulated" is already moot at this point. The only reason it comes up in debate is because the anti's are still using it.
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Old February 5, 2013, 10:50 PM   #16
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Google the writings of Tench Coxe. He offers some really indepth definitions of the militia and the rights/expectations of the militia. As the chief of military procurement in the federal government, he purchased thousands of rifles that were provided to the militia specifically to ensure that the militia had standardized rifles when going to battle.

By definition and expectation of the Founders, the 2nd Amendment protects all arms but, more so than any other arms today, the M4 and other full auto AR style weapons because those are the weapons of today's war.
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Old February 6, 2013, 01:56 AM   #17
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I would actually say that Semi-Auto AR15's are most protected by the second amendment. I think full-autos should be legal, but if you ever talk to a marine they almost never used full-auto except for heavy guns and suppressive fire.
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Old February 6, 2013, 07:21 AM   #18
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Jim Dandy nailed it in his post.
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Old February 6, 2013, 01:03 PM   #19
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I like SamNavy's approach to arguing this point. It think this approach can win fence-sitters.

I also point people to the following argument, which was floating around in the months leading up to the Heller decision.
http://www.virginiainstitute.org/pub...r_on_const.php

Quote:
Suppose the Constitution provided:

A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.

This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.

The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
I have had good luck with this line of reasoning as well... I think this line of reasoning started with Robert Levy of Georgetown University.
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Old February 6, 2013, 06:23 PM   #20
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Quote:
The need for a definition has been mooted by the SCOTUS decision in District of Columbia v. Heller. They held that the well regulated clause is prefatory, and not militia membership is not a requirement to bear arms. The RKBA is an individual right.
SCOTUS was wrong in Heller in that you can't separate the militia from the 2nd Amendment.

They are correct in that the second-half of the sentence doesn't say the right of the militia to keep and bear arms shall not be infringed. There is no militia membership required. But the relationship strengthens the amendment, making it clear that the people should have every "terrible implement of the soldier."

Quote:
Originally Posted by Tench Coxe
The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY.

The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or [federal] constitution hath given away that important right .... [T]he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people.
Justice Scalia has made it clear that he supports gun control, reasonable restrictions, and any ban of any weapon that cannot be "borne" - even though the Constitution does not protect your rights to keep arms as long as you bear them in your arms. Since there is no requirement that your arms be borne, there is also no limit that can be inferred that says they must be able to be borne. It only says you can keep any arm you choose and, if you choose to, you can bear it. Otherwise, does the right apply differently to Lady Gaga than it does to Arnold Schwarzenegger? Who decides what can be borne?

Quote:
Originally Posted by Supreme Court Justice Scalia
“Some [limitations] undoubtedly are because there were some that were acknowledged at the time,” he continued. “There was a tort called a “frighting” which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes there are some limitations that can be imposed, what they are will depend on what the society understood were reasonable limitations at the time.”
So Scalia says that scary guns can be banned even though that is clearly not the intent of the Founders. Heller lays the groundwork upon which SCOTUS can ban those ugly or scary guns. It is the militia clause of the 2nd Amendment that makes the case that they cannot ban those guns.

Heller wasn't a victory; it was a distraction.
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Old February 6, 2013, 06:28 PM   #21
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BTMJ, your argument is spot-on. Your books amendment does not protect Dr. Seuss or 50 Shades of Gray while allowing the ban of all political books not approved by the government.

The militia clause of the 2nd Amendment strengthens the amendment by including weapons of war, not just sporting rifles. But there is no requirement that you be identified as a member of the militia to own the guns. One might not actively join the militia until called. When called, they need to have the weapons of war.
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Old February 6, 2013, 06:31 PM   #22
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Ask an anti if they know what a regulator clock is. "Regulated" in well-regulated militia and a regulated clock has the same meaning. AFAIK Congress hasn't ever enacted a law banning regulator clocks.
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Old February 7, 2013, 11:51 AM   #23
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Quote:
SCOTUS was wrong in Heller in that you can't separate the militia from the 2nd Amendment.
I am not comfortable making a statement that the court was wrong. I am not a lawyer. I have found that many lawyers are quite comfortable making assertions and speculations as if they are facts, and using language which conveys great confidence. This is one of the reasons that scientists and engineers often have such a hard time understanding lawyers.

I understand you opinion however, and I can sympathize with it. But then you make the statement

Quote:
Heller wasn't a victory; it was a distraction.
I disagree with that. True, it was not a complete absolute victory, but such victories are rare.

I remember being a gun owner in the 80's and 90's. If you would have told me in 1988 that within my lifetime there would be shall-issue CCW laws in almost every state, I would dismissed it as a fantasy. If you would have told me that the Supreme Court would someday rule that the 2nd amendment recognized an individual right to keep and bear arms, I would have been very skeptical. The wind was blowing in a very different direction back then. We have come very far indeed. Let's not snatch defeat from the jaws of victory with self-defeating pessimism.
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Old February 7, 2013, 08:42 PM   #24
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I partially agree with Levant. And that means I also disagree with Justice Scalia. In Heller Mr. Scalia wrote that the RKBA is subject to "reasonable" regulation. I disagree with this, and the basis is the Bill of Rights itself. There is nothing in the 2nd Amendment to suggest, even in the most indirect fashion, that the RKBA might be subject to even the most reasonable of regulations. Regulation = infringement, and the operative clause of the 2A is an absolute, complete, total prohibition against infringement (i.e. regulation) of the RKBA.

Conversely, in the 4th Amendment, the Founders demonstrated that they could use the 'R' word when they chose, by protecting us against "unreasonable" searches and seizures. Once the law was written that way, it befell the courts to determine what is and what is not "reasonable" vis-vis searches and seizures. So they were familiar with the word, and the concept.

But the Founders did not write that the RKBA shall not be "unreasonably" infringed. They wrote that it SHALL NOT BE infringed ... period.

I also disagree with the notion that the 2A doesn't protect my right to own my very own, personal F-16 equipped with nuclear-armed missiles, but since I can't afford the price of admission even by saving my lunch money for a year, I'm less worried about that one.
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Old February 7, 2013, 08:52 PM   #25
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Quote:
I partially agree with Levant. And that means I also disagree with Justice Scalia. In Heller Mr. Scalia wrote that the RKBA is subject to "reasonable" regulation. I disagree with this, and the basis is the Bill of Rights itself. There is nothing in the 2nd Amendment to suggest, even in the most indirect fashion, that the RKBA might be subject to even the most reasonable of regulations. Regulation = infringement, and the operative clause of the 2A is an absolute, complete, total prohibition against infringement (i.e. regulation) of the RKBA.
USSC has already addressed that at least somewhat in the 1936 Miller decision -- military weapons are the MOST protected and subject to the least restrictions, not the most restriction. That is what the prefatory clause is all about.
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