Second Amendment wording
"Well-regulated"
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."
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How many commas does the Second Amendment have?
An interesting question. They didn't have photocopiers back in 1789, and when clerks copied the Bill of Rights they punctuated and capitalized as they please.
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Commas in the Second Amendment
An interesting paper over at GMU's The Green Bag.
It points out that even at the time of the ratification, there were versions with one, two, and three commas, and that since Congress, the Executive, and the Supreme Court have varied in their usage. The bottom line is that there were no photocopy machines back then, and scribes who hand copied documents punctuated and capitalized as they thought best.
[Note that The Green Bag is a lighthearted legal publication: the ending suggestion that we settle the issue by picking the version we want and re-ratifying it is not meant to be taken seriously]
Hat tip to Dan Gifford...
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Steve Halbrook on 2A wording
His Op-Ed is here.
Hat tip to reader Jack Anderson....
UPDATE: my own research into uses of "well regulated" in the 18th and early 19th centuries indicated that it was in common use as a term for something like "orderly" "in control."
Not necessarily under control from an outside force, it can be a matter of self-discipline. Uses such as "well-regulated tastes" or "well regulated mind" or "well regulated gentleman." And as the Heller briefing pointed out, Geo. Mason and others used it in the preamble to the Fairfax County militia resolves, which laid out a private, voluntary organization specifically designed to be outside direct Royal control.
How it got into the first part of the 2A is simple. If militia is the equivalent of "all men capable of bearing arms," then "a militia, being necessary to a free state" makes little sense. A free state will have a militia thus defined, but so will a tyranny. And a militia would be necessary to a free state only in the sense that it is necessary to any state (Even the Amazons of myth had to import guys from time to time in order to reproduce).
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Contemporaneous uses of "Well Regulated"
Reader Denton Bramwell has compiled a (small) pdf research paper on uses of "well-regulated". It's well worth reading.
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Coxe, Madison and "healing strictures"
One of the more significant indications of original intent on the Second Amendment is the newpaper article by Tenche Coxe, circulated while the First Congress was debating the Bill of Rights, and referring to the Second Amendment as protecting Americans' possession of "their private arms."
Madison wrote Coxe a thank-you note, saying, among other things, that the Constitution was already indebted to the "healing strictures of your pen."
I just happened to do a search for the contemporary meaning of "stricture" in that context, and found some uses:
In modern medical terminology, it usually means the narrowing of a passage, but this medical dictionary notes an earlier use: "A stricture is also anything that closely restrains or limits. Shakespeare used "stricture" in the sense of strictness, as in "A man of stricture and firm abstinence.""
Here's another use: "An adverse remark or criticism; censure."
It looks as if Madison's remark meant "healing criticism (presumably of the Constitution's detractors) or argument."
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More on "well regulated"
Saul Cornell and I just exchanged emails, and with his permission I'll post the gist of it in hopes of some discussion (his comments in italics, suggested by a comment):
>David,
>
>How do you reconcile your recents claim about the meaning of well regulated
with the following evidence
>
>Hamilton's discussion in the Federalist:
>
>"If a well-regulated militia be the most natural defense of a free country,
it ought certainly to be under the regulation and at the disposal of that body which
is constituted the guardian of the national security"
Hamilton was a fascist! (grin).
substitute "well-disciplined" for "well-regulated," and the above sentence still makes sense.
I rather suspect that (1) if we'd asked Geo. Mason if his independent Fairfax
militia unit (whatever it was called, the voluntary unit that was formed) was well-regulated,
he's have insisted it was, and (2) if you'd then said, well, that proves
the entire of Virginia can have a well-regulation militia on a voluntary, independent
of government, basis, he'd have said, hell, no!
I think use of the term bridged the gap, in that most of the time well-regulated
and well-regulated by government were synonymous.
Perhaps the use at the time emphasized the objective, whereas in modern speech it
would tend to emphasize the means.
I find the militia idea rather interesting, and quite complex.
1. Militia is seen as absolutely essential to keeping us free.
2. But it must be compelled by the government, since if given a choice, individuals
would find better ways to spend their spare time. Not unusual -- same could be said
of jury duty, and for that matter paying taxes.
3. But the government must be compelled to compel individuals (as by constitutional
requirements), since if given a choice, the government would prefer a standing army
anyway.
4. But let's no go too far about this! The government might even want a standing
army so badly that it will make the militia duty *too burdensome,* so that everyone
wants to abolish it and substitute an army (see Pat Henry in the VA convention).
By this point, things are getting rather complex in terms of logic.... we must have
a militia that is well regulated, but not *too* well regulated.
I should have counted:
5. Or the government might use conscientious objector exceptions to let a large
part of the population out of the duty and thereby get its standing army. And the
people might cooperate in this by nominal conversion to quakerism. (Elbridge Gerry
in the House).
>The use of the term in the Articles of Confederation
>"every State shall always keep up a well-regulated and disciplined militia"
>
>Or the discussion of well regulated liberty by John Zubly, a member of the
Georgia legislature:
>
> "well regulated liberty of individuals is the natural offspring of laws,
which prudentially regulate the rights of whole communities.? By contrast he noted,
?all liberty which is not regulated by law, is a delusive phantom."
He stole that from John Ashcroft... Actually, the entire Classical Republican movement largely centered around ideas, not so much of liberty, as of personal and civic virtue, which government and society must impose upon the individual. Man individually is corruptible and selfish (cf. Calvin). Jeffersonian thought saw the individual as naturally virtuous, and if anything, corrupted by government. While I find the Jeffersonian view more appealing, raising kids has given me a certain sympathy for the Classical Republican view.
>I think the suggestion that well regulated has nothing to do with regulation
and legal control is hard to square with either the context or the evidence properly
weighted. The Regulators who took up arms in Shays' rebellion were pretty well
disciplined, they were certainly not well regulated!
I doubt the 18th century drew a rigid distinction between the two, in a militia context. With the exception of Independent Companies, which were not the militia in the sense of everyone, well-disciplined and organized would have implied trained and organized by the State. It does seem a valid point that in modern speech, well regulated would imply the means (lots of government control, in terms of constraining choices) whereas in 18th century speech it implies the end (people who are trained and organized).
A bit of a digression: I've spent a bit of time studying 18th-19th century drill, which would have formed the bulk of the training. It appears that thru the 7 Years War, the British had no uniform drill -- each regiment's colonel chose his own. This created problems, noted by Wolfe, when the line advanced. Instead of everyone moving at (I forget the spec now) say 55 steps per minute, 22 inches per step, some regiments moved faster or slower than others, and the line got ragged. Throughout the period, people made advances that were the equivalent of inventing a new weapons system. Frederick the Great discovered you could move units on a diagonal. After the rifled musket became practical, and troops could be hit at greater ranges, speeds of advance increased. Doubletime was invented, and then the run.
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"Well-regulated"
Jon Roland's site has posted an interesting discussion of the meaning of "well-regulated." The cites from the Oxford English Dictionary span 1709 - 1894, and suggest "well-regulated" meant something close to "in proper working order."
(I think I've seen a 17th century usages in connection with troops, something about a city being lost to the enemy for want of a body of well-regulated troops in the area, implying that those in the region were ill-disciplined or disorganized). The use of an adjective with "militia" goes back at least to 1625, when Charles I announced he was striving for an "exact militia." To the extent that "militia" meant every man able to bear arms, just having a militia was meaningless ... every nation would have one of those, and "having people of military age is necessary to the security of a free state" might be true but rather obvious.
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Roger Sherman's version of the Second Amendment
One more nail in the coffin of "collective rights" comes from the discovery, in the 1980s, of a draft for a bill of rights by Rep. Roger Sherman, who, with Madison, was appointed to the committee which reported out the bill of rights.
Sherman's draft (detailed in a New York Times article of July 29, 1987) was found in the Library of Congress collection of Madison's papers. It contains guarantees of freedom of speech and assembly and other rights, but in place of the Second Amendment has: "The militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military Service shall not be required of person religiously scrupulous of bearing arms."
The historical point here is that the members of the First Congress knew how to write a "collective rights" amendment, that would only have safeguard State rights to control the militia, if they'd wanted one.
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Don Kates' essay
I've attached, in the extended remarks, an essay by Don Kates on the interpretation of the Second Amendment. Here are my comments on it:
I don't think it completely accurate to say there was no intent to modify the original constitution. Modification is what amendments are all about.
I think the purpose can be more exactly stated as an intent to avoid modifying the federal government as the federalists thought it should be. They wanted to set up a functional, fair system, and the antifederalists claimed they wanted to set up an all-powerful and oppressive one. So--resolve the fears with amendments that did not restrict the system you want, but would restrict what you have no intention of doing anyway. OK, we bind ourselves not to create a national church, forbid freedom of speech, or disarm the populace. We never meant to do any of that -- and it would be political and perhaps physical suicide to try -- so why not forbid it? On the other hand, keep what is seen as important -- the power to raise armies and specify organization of the militia, to tax and spend, etc. -- free of new restrictions. Thus the "throwing a tub to the whale" (18th century lingo for "launch a decoy") remark.
With regard Prof. Volokh's point, I would amplify a bit. Yes, use of prefatory or hortatory clauses was common in constitutional drafting of the time. The enforcement of a bill of rights was still unclear, judicial review and all that, and in any event legal remedies don't work well against a real dictator. As Jefferson wrote to Madison, a bill of rights at least lets the people be certain of what their rights are and of when they have been infringed (with the implication they can then vote the scoundrels out of office or, if that fails, take up arms). For that purpose, you might as well explain why they have a right. You can see this all in the letters between Madison and Jefferson leading up to the bill of rights. Madison argues that a bill of rights is a mere parchment barrier that any real tyranny would disregard at will, and Jefferson is arguing that at least it will let the people know, indisputably, when the government starts to go that way. (Note that both seem to think that what is guaranteed in a bill of rights is clear from its face.... no room for balancing tests, strict vs. lesser scrutiny, etc. The average person should be able to judge from reading the words whether a governmental action is illegal or not).
Madison's draft had several such explanatory clauses, and the first congress chopped them all out when they radically shortened his work. All, except for the one in the second amendment. I suspect it stayed in for a simple reason. Unlike the other explanatory clauses, it had a separate thrust. A statement of an individual right to arms would satisfy, oh, Jefferson, Sam Adams, the PA minority and the NH convention delegates, but would not have sufficed to satisfy antifederalists such as George Mason and Pat Henry, who really were hot on the militia system. So why not spend nine words to make them happy and/or undermine their criticism?
Continue reading "Don Kates' essay"
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Supreme Court textualism and Second Amendment
Just came across an interesting Supreme Court case, worth at least a cf. on the question...
Barnhard v. Thomas, 540 US 20 (2003) involved a 9-0 ruling (reversing a Circuit ruling by Judge Alito ... and I tend to agree with Alito's ruling, on non-textualist grounds) relating to Social Security disability. [The question was whether under the statute a formerly disabled elevator operator, now healthy enough to operate an elevator, could still claim disability on the ground that, if they are any elevator operator jobs left in the country, they could be counted on the fingers of one hand. For you youngsters, before they invented pushbutton controls, elevators required an operator, who sat on a little seat, and moved a lever to select the floor you asked for. I saw some of those in the Capitol 20 years ago, when it was a patronage job, but where you would find such a job today I cannot even begin to guess. So I'd side with Alito on practical grounds ... Congress probably would not have meant a person to be un-disabled, if the job they were suited for is one that no longer exists. But is is a 9-0...]
The Court notes:
" An example will illustrate the error of the Third Circuit’s perception that the specifically enumerated “previous work” “must” be treated the same as the more general reference to “any other kind of substantial gainful work.” 294 F.3d, at 572. Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, “You will be punished if you throw a party or engage in any other activity that damages the house.” If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house–for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact “damaged” the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity–hosting a party–that was most likely to cause damage and most likely to occur."
I see a parallel here in the Second Amendment. The framers recognized a right "of the people" to arms. In the prefatory clause, presumably stating a reason, they noted that a well-regulated militia is necessary to the security of a free state. Even if we assume that the same core interest underlies both provisions, we cannot disregard or limit the declaraton of the right.
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First image manip I've seen that sums up a constitutional issue...
From sacredcowburgers.com, a pic that sums it up.
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Second Amendment as an illustration
A thought just popped into my mind, aided perhaps by a rising ethanol level (which might cast some light upon the brain/mind differentiation, but I digress...). The right to arms for some reason (perhaps that it remains controversial, perhaps that it is an area where traditional liberal-conservative thought tends to reverse itself) is place where manners of constitutional interpretation are highlighted. To make some rough distinctions, we can posit:
Natural rights approach (perhaps the Originalism of the Originals?): individuals have certain rights, which are ascertainable by logic. Humans can reason and communicate, hence they have freedom of expression. The need to defend themselves (particularly if government fails to do so) indicates that self defense is the most fundamental of rights, and hence that there is a right to have the physical means of self-defense. This would have made great sense to the framers (remember that the bill of rights takes the rights as a given ... it does not proclaim that free speech or ownership of arms is now and henceforth a right, it says that Congress shall make no law abridging the first right, nor infringe the second, in each case presupposing the right in question) but wouldn't be an argument you'd make in court today. If you meant to win, I mean. Individual rights view here wins out.
Originalism (which can be split into original intent, what did the Framers mean by their writings, and original understanding, which did the American people understand when they ratified those results). A form of legal positivism, which implicitly treats the rights in question as created by the writings or the understanding. The meaning of a right, like the meaning of a statute, is derived from the thoughts and purposes of its drafters or the decisionmakers who validated the decision. Again, the individual rights view wins, unless one is willing to go to extraordinary lengths (i.e., be less than intellectually honest) to evade that result.
I don't quite know what to entitle a third approach. It is not natural rights theory, nor true positivism. I suppose it amounts to "there is no constitutional right where I do not approve of the result." Under that, collective rights may win out. I'd suggest that this flunks one core standard of constitutional interpretation -- the interpretative tool must yield results independent of the interpreter's policy desires. Otherwise (1) courts are indeed non-elected policymakers and (2) the constitution is no more than the passing and personal desires of a court.
There is a fourth approach, I suppose, that of the idea of an evolving constitution. Prof. Volokh, while rejecting this idea, points out that (a) if we look at how the Congress has viewed the right to arms, it has several times in legislation stated it is an individual right; (b) if we look at how States have viewed it, all changes to State constitutions have made it more clearly individidual; (c) if we look at how the people at large view it, all surveys show a large majority believe they have an individual right to arms. That leaves only (d) the socio-economic class that includes judges don't think it is individual, but this last class view is hardly something one can base an ethical view of the constitution upon.
There is the variant of this discussed by Prof. Amar, who notes that meanings of words change over time -- but he also notes that the meaning of "right to keep and bear arms" seems to have shifted, not toward a collective right, but toward an individual right (vide the fact that in the 14th amendment period, the phrase "bear arms," which sounds quite military, came to be used in a clearly individual right sense).
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Geneaology of the Second Amendment
I was doing a bit of work on the documentary, and discovered a few facts about the Second Amendment's wording that had somehow escaped my notice over the last, oh, 30 years (I published my first law review article on it in 1975).
The immediate model for the Second Amendment is the bill of rights demands lodged by the Virginia ratifying convention (1788). I'll get back to that in a moment, but the choice of the VA demands was logical. They were the broadest guarantees, and, having been adopted with minor wording changes by New York and North Carolina, obviously had wide support. But where did the VA convention get its wording? I don't think they borrowed it from the earlier ratifying conventions, but rather went back to State bills of rights.
PA (1776) had guaranteed: "That the people have a right to bear arms for the defense of themselves and the state."
MA (1780) broaded this by adding "keep and" but narrowed it to for the common defense: "That the people have a right to keep and bear arms for the common defense."
VA (1776) made no express mention of a right to arms, but stressed the militia: "That a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state."
So the VA ratifying convention simply took the MA declaration (broadened by "keep and bear"), and chopped off the narrowing "for the common defense." Then it stuck in semicolon and attached the VA provision. Both these cut and pastes were literally word for word. The VA ratifying convention request read: "that the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms is the proper natural and safe defense of a free state." [BTW, the punctuation differences are immaterial: no photocopy machines back then, and people copying a statement often punctuated as they pleased. Thus there are "official" copies of the Second Amendment with one and with three commas]. Note that the VA drafters used the broadest existing statements of both right to arms and militia importance. Example: take MA's right to keep and bear rather than PA's earlier to bear, but chop off MA's narrowing "for the common defense."
When Madison drafted up the amendment, he took the VA ratifying language direct, and added a couple of clauses: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person..."
The First Congress took his idea, cut out his additions (well armed and and the conscientious objector clause), thus taking it back to the VA language. [The only evidence as to why consists of arguments that the States should define conscientious objector status, lest it give Congress too much power over the militia]. It then reversed the order of the clauses, changed country to state (presumably because it was the best security of free governments, state and federal alike -- and note "free state" was what the VA 1776 declaration had used) and changed "the best security of" to "necessary to." (The House debates indicate the last was done because "best security" suggested there were other not-quite-so-good securities, and House members wanted it clear the militia was absolutely essential).
Essentially, the Second Amendment then became the VA ratifying proposal, with the sole change that the order of clauses was reversed, and the militia was said to be "necessary" rather than proper, natural and safe.
Here I point out that the MA "for the common defense" language got a second try. The Journal of the First Senate shows that someone moved to add the language back into the Second Amendment -- and it was voted down.
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Meaning of "well regulated"
From the Oxford English Dictionary:
REGULATED.
a. Governed by rule, properly controlled or directed, adjusted to some standard....
b. Of troops: properly disciplined (Obs. rare).
1690 Lond. Gaz. [London Gazette] No. 2568/ We hear likewise that the French are in a great allarm in in Daupine and Bresse, not having at present 1500 men of regulated troops on that side.
The qualifier has an obvious purpose. If the militia means all men capable of bearing arms, then any nation, free or unfree, has that. It would make no sense to say "Having a body of men capable of bearing arms is necessary to a free state." It probably would be, in the same sense that a nation needs a population, but it's also necessary to an unfree state.
I've found historical references that qualify militia going back to 1625, under Charles I, when he proposed "an exact militia" -- that is, one with more training and organization. I believe "well regulated" is used in one of the 18th century British militia laws, and it certainly was used in Whig writings of the time.
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Thoughts on the wording of the Second Amendment
Most of the controversy over the Second Amendment arises from the fact that it has both a "militia clause," stating that a well regulated militia is essential, and then the "right to arms" clause. Prof. Volokh's article The Commonplace Second Amendment points out that the use of a prefatory clause stating a purpose was quite common in State constitution drafting of the time. (This makes sense. The idea of judicial review, of a court striking down laws as unconstitutional, was undeveloped at the time. As the Jefferson-Madison letters on the idea of a bill of rights suggest, a bill of rights could be seen as establishing certain rights beyond controversy, not to guide the courts, but to let the people know clearly when rights had been infringed, so that they might vote the scoundrels out, rise up in arms, or otherwise react en masse. So why not state why a right was important?)
It turns out Jame's Madison's original version of the Bill of Rights, as introduced in Congress, had several "purpose" clauses in it:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
......
In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate."
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Thoughts on the wording of the Second Amendment
The immediate ancestor of the Second Amendment is the Virginia ratifying convention's demand for a bill of rights, which asked for a guarantee that:
"That the people have a right to keep and bear arms; that 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."
The ancestors of that were in turn three State guarantees. First, Virginia's 1776 Declaration of Rights, which praised the militia but had no right to arms proviso:
"That 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..."
And Pennsylvania's 1776 Declaration, which had a right to arms but no militia clause:
"That the people have a right to bear arms for the defence of themselves and the state..."
And finally Massachuetts' 1780 Declaration (which added "keep" and "for the common defense"):
:The people have a right to keep and to bear arms for the common defence."
Thought: when the Framers (to be precise, the Virginia ratifying convention) worked from the existing State models, they chose the broadest wording of each. From PA came the right to bear arms. From MA came the right to keep (but with the addition of "for the common defense" trimmed out). From VA came the militia clause (which neither PA nor MA had). In each case, the broadest wording available was chosen.