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« A good video | Main | Had to shut off comments »

"Well-regulated"

Posted by David Hardy · 25 November 2013 10:30 AM

Pre-Heller, anyway, there was a debate about the meaning of "well-regulated militia" in the Second Amendment. One side contended that it meant "tightly controlled and subject to much regulation" and the other contended it meant "orderly," trained, that manner of thing.

I just made a little discovery. In the Framing period, "well-regulated democracy" was sometimes used, in the sense of an orderly, organized democracy, and not in the sense of subject to many regulations.

Future chief justice John Marshall, in the Virginia ratifying convention, said

"We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy because we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it because we think it a well-regulated democracy: it is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom."

An English translation of Baron De Montesquieu's "The Spirit of the Laws" states:

"Such is the difference between a well-regulated democracy and one that is not so, that in the former
men are equal only as citizens, but in the latter they are equal also as magistrates, as senators, as
judges, as fathers, as husbands, or as masters."

· Second Amendment wording

2 Comments | Leave a comment

denton | November 25, 2013 4:39 PM | Reply

Around the time of the Heller case, I started digging through old literature to see how "well regulated" was used at the time of the Founding. It clearly had nothing to do with being closely controlled by the government. It meant "in its ideal state" or "functioning properly".

I found references to well regulated horses, drawing rooms, minds, people, music, hair, fire departments, and markets. I even found one reference to a well regulated society that was at the moment in rebellion against its government. In all cases, you could substitute "properly functioning" and get a meaningful sentence. In only one case could you substitute "carefully controlled by the government" and get a sensible sentence.

Around 1900, the usage shifted more toward meaning closely controlled by the government.

jnh | November 25, 2013 8:34 PM | Reply

Interpreting "well-regulated" as being subject to regulatory laws begs the question, "enacted by whom?"

The states?

Or Congress?

Because if it refers to state regulation, then explain the delegation of militia powers to Congress.

Or if it refers to Congressional regulation, then to whom is the Second Amendment some kind of barrier?

I mean, exactly how does this amendment work, if your theory is that it protects a state power from . . . something.

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