A Well Regulated Militia
In discussions of the 2nd Amendment, the phrase "well-regulated" always fails in any modern interpretation, and it can ONLY be interpreted in the context of the Founders' original intent. In fact, that standard applies to the entire Constitution, and it has been abused ever since. (For an example, I invite the reader to review how Congress has abused the Commerce Clause to intrude itself into virtually every aspect of your life.)
James Madison, commonly called the "Father of the Constitution", wrote the following about original intent:
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense."
I would add to that these four quotes from Thomas Jefferson, which remove all doubt that original intent is the only legitimate interpretation:
- Thomas Jefferson, in a letter to Wilson Nicholas, September 7, 1803:
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."
- Thomas Jefferson, in a Draft of the Kentucky Resolutions, 1798:
"The construction applied . . . to those parts of the Constitution of the United States which delegate Congress a power . . . ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument."
- Thomas Jefferson, in a, letter to Albert Gallatin, May 20, 1808
"[T]he true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law."
- Thomas Jefferson, in a letter to William Johnson, June 12, 1823
"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed."
For an understanding of the Founders' use of the term "well-regulated", I invite you to read: http://www.lectlaw.com/files/gun01.htm. I would urge you to read the whole page, but the meat of it is in these 4 paragraphs:
"As Noah Webster put it in a pamphlet urging ratification of the Constitution, "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe." George Mason remarked to his Virginia delegates regarding the colonies' recent experience with Britain, in which the Monarch's goal had been "to disarm the people; that [that] . . . was the best and most effectual way to enslave them." A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment's overriding goal as a check upon the national government's standing army: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
"Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say "A Militia well regulated by the Congress, being necessary to the security of a free State" -- because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the "security of a free State.”
"It is also helpful to contemplate the overriding purpose and object of the Bill of Rights in general. To secure ratification of the Constitution, the Federalists, urging passage of the Constitution by the States had committed themselves to the addition of the Bill of Rights, to serve as "further guards for private rights." In that regard, the first ten amendments to the Constitution were designed to be a series of "shall nots," telling the new national government again, in no uncertain terms, where it could not tread.
"It would be incongruous to suppose or suggest the Bill of Rights, including the Second Amendment, which were proscriptions on the powers of the national government, simultaneously acted as a grant of power to the national government. Similarly, as to the term "well regulated," it would make no sense to suggest this referred to a grant of "regulation" power to the government (national or state), when the entire purpose of the Bill of Rights was to both declare individual rights and tell the national government where the scope of its enumerated powers ended."
The reason the 2nd Amendment guarantees the right of The People to keep and bear arms is to stand as a bulwark against the possibility of being ruled by the very same standing army that The People were also standing up for the national defense. They are, both The People and The Army, the equal counterweights on opposite ends of the beam of political power, balancing the scale of power between people and state. This principle is VERY clearly explained in the Federalist Papers, written by the founders to explain EXACTLY why they wrote the Constitution and its amendments the way they did, and which are seldom ever taken into account by people who wish to limit the scope of the 2nd Amendment's protections.
Virtually every major gun rights case decided in the Supreme Court has declared that the 2nd Amendment is an individual right. The case of "MILLER", which gun-control advocates like to quote the most (because it created a standard which permitted the outlawing short-barreled shotguns) actually upheld the 2nd as an individual liberty, and it held that the reason that possession of a sawed-off shotgun could be controlled by the state is that it had no use as a militia weapon....... which is largely true..... and therefore a short-barreled shotgun could be regulated by the state without damaging The People's right to keep and bear arms in order to act as a "well-regulated" militia. So in that context, what WOULD qualify as a "militia weapon"? Well the obvious answer in modern times is something like an AR15. In previous times, it would have been whatever the Standing Army was armed with at the time. Indeed, in colonial times, private persons could own artillery pieces which, due to their cost, were usually purchased by the raising and pooling of local private militia funds, and kept and operated by private local militias. Furthermore, this was entirely legal. So historically, a militia which resided in The People was not restricted to just personal long guns and sidearms, but also included any other weapon system which a determined band of militia could afford to purchase, operate, and maintain.
The two more recent important cases - "Heller" and "McDonald" are ALSO affirming of these principles. "Heller" establishes (AGAIN) that the 2nd Amendment guarantees an INDIVIDUAL right to KEEP arms. "McDonald" establishes that the 2nd Amendment guarantees an INDIVIDUAL right to BEAR arms, and more importantly, it incorporated the 2nd Amendment under the 14th—securing it as a right which individual STATES may not infringe.
Furthermore, in the late 18th century context in which the Bill of Rights was being framed, "well-regulated" described a condition in which the militia of The People was on the same logistical page as the Standing Army. This principle is absolutely documented by both the Founders and subsequent historians as well as the legal record, no matter how much gun-controllers want to deny it. "Well-regulated" had the same kind of meaning as "in good working order"..... as in a well-regulated machine. A Jaguar V12 piston inside a Jaguar V12 engine is "well-regulated" in that the engine can function without self-destroying. A Toyota 4-banger piston inside a Jaguar V12 engine results in an engine that is NOT well-regulated. It was deemed beneficial for The People to have access to the ownership and carrying of the same kind of infantry weaponry in the same kinds of calibers that the Standing Army used. WHY? Because during the revolutionary war when the local militias coordinated tactically with the Standing Army, the patriots (both civilian and enlisted) often faced a logistical nightmare because they used different kinds of weapons—standardized military muskets for the army, and small caliber hunting rifles and shotguns for the civilians. Therefore, a "well-regulated" militia made up of The People would be on the same logistical page as the Standing Army, having access to and training with the same kinds of muskets that the Army had. What kind of weapon in civilian hands today would best correspond to what the military uses? The obvious answer (again!) is the semiautomatic AR15....which except for lacking a select fire "happy switch", is mechanically identical to the M4/M16, and uses the same manual of arms. The militia tactical use, and manual of arms for the AR15 is virtually identical to the tactical use, and manual of arms for the military's M4/M16.
Throughout American history, until the mid-to-late 20th century, militia logistical standards for infantry arms have always kept pace with those of the Standing Army. Men no sooner returned home from the battlefields of WW2 than they began acquiring for themselves personally-owned M1 Garands and M1 Carbines—the state of the art battlefield infantry long guns of the day–and Gov't Model 1911A1 pistols, caliber .45 ACP. I am of the Vietnam generation. Guys my age came home from Vietnam and started getting their hands on M14s and M16s (which were both legal to purchase back then with relatively minimal interference from the state). It wasn't until the FOPA of 1986 established that no more fully automatic weapons could be manufactured or imported for the civilian market that the price of a common M16 shot from around $800-$900 to well over $15,000-$20,000.....because the supply dried up. Ever since 1986, civilian MILITIA access to the weaponry of the individual infantry soldier has been tightly restricted, and it is no coincidence that the balance of power between government and The People, and between the federal government and state governments has shifted even more strongly in favor of the federal government. Why has the balance of power shifted? Because we are rapidly losing the ability to tell the federal government to go have carnal knowledge of itself.
That's great if you think that the federal government is your momma, your poppa, and your (small "g") god. But throughout the entire range of human history, it has NEVER gone well for any people whose government has disarmed them. Not once. And anyone who denies that is..... well... living in denial. Since, as Mao Zedong put it, "Political power grows out of the barrel of a gun", so long as the federal government continues to restrict the right of the people to keep and bear arms at every turn, political power in this country will continue to accrue evermore to the government, and drain away from the people who elect that government. And THAT is NOT what the Founders intended...... giving life to Benjamin Franklin's famous quote, when asked by a Mrs. Powel of Philadelphia whether the new government was to be a republic or a monarchy, he responded without hesitation: “A republic, if you can keep it.”
With a disarmed, or weakly armed population, we cannot keep it. That became evident even as recently as the late 1940s, after WW2, in The Battle of Athens, Georgia. It also became evident when African American men who had served in the military during WW2 and Korea used their personally owned military-type firearms to protect themselves and their families during the civil rights struggles of the 1950s and 60s. A VERY good reference work on that subject is a book titled "Negroes and the Gun: the Black Tradition of Arms" by Nicholas Johnson, which documents how African Americans have used firearms throughout American history.
Even when government thinks it is acting beneficially in your favor, it fails miserably, creating instead an impossible dilemma for the private citizen. One of the primary arguments used to contest an individual's need to keep and bear arms for personal protection (as opposed to protection of that individual's investment in the stability of the state) is that "the police will protect you". This is not only ludicrous from a practical perspective, since even the best intentioned police can usually only get there fast enough to draw the chalk outline around your body, it is ludicrous from a legal perspective. On June 27, 2005, the Supreme Court ruled in "Castle Rock v. Gonzales" that police have no "duty to protect". So, the net effect is that the same federal government which wants to limit your right to protect yourself, and which wants to encourage you to rely on the police for protection instead, ALSO tells you that those same police have no obligation to protect you either. And the insane thing about it is that there are a buttload of alleged Americans who believe that this is how it should be.
And lastly, the 2nd Amendment is a RIGHT, not a NEED. It protects that right for whenever there is a need. And because it is an individual right, ONLY the individual gets to determine his or her need. NOBODY gets to determine it for them. Therefore, neither the government nor any other individual gets to frame the exercise of that right as a matter of need for anyone else. You want a car? I don't tell you that you don't need an Aston Martin because all you really NEED to get around town with is a Yugo. Instead, I tell you that you should be allowed to own an Aston Martin, limited only by your ability to afford it. And, ownership of a car isn't even a constitutionally guaranteed right, let alone one that specifically "shall not be infringed" (the 2nd Amendment being the ONLY amendment containing those words). So when someone tells me I don't "need" a [place name/type of gun here], my reaction is to, in terms as polite as I can manage, tell them to most heartily go pee up a rope. THEIR determination of MY need is entirely irrelevant. After all, WHO GAVE THEM THE RIGHT TO DETERMINE MY NEED, and more importantly, WHO GAVE THEM THE RIGHT TO LIMIT MY OWN DETERMINATION OF MY NEED?
Nobody. That's who.