“Well regulated”

The Second Amendment reads:

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.

The operative clause seems perfectly clear, but the prefatory clause has been the source of endless confusion and mischief. The proper role of the preamble in statutory interpretation is to clarify the statute’s intent and meaning, when ambiguity exists. In the case of the Second Amendment, there seems to be no such ambiguity, but we look to the prefatory clause to make sure it is consistent with the operative clause’s plain meaning.

Those who wish to ban arms often argue that the prefatory clause points to a meaning that actually conveys no right for the people at all, or a right that applies only for people who serve in a state militia. This argument reveals a confusion over statutory interpretation (again, the preamble is used to clarify the operative clause, not to alter it), but more than that, it reveals a confusion over the meaning of the terms in 1791, when the Bill of Rights was enacted.

What did the framers mean when they wrote “a well regulated militia”? In today’s parlance, we think of a militia as an organized military or paramilitary group. (Some go on to say that a well-regulated militia is therefore a military organized by the government, such as the National Guard.) But in the language of the day, the militia referred to the entire body of able-bodied men of military age, who could be called up in the event of war. Thus, taken in its historical context, “militia” is not constraining at all.

But what of “well regulated”? It has always seemed like an inkblot to me, meaning to everyone just what they want it to mean. Heller v. DC says it “implies nothing more than the imposition of proper discipline and training.” This seems plausible, but their citation didn’t seem super-convincing.

But reading Ron Chernow’s excellent biography of George Washington, I found a quote that sheds some light on the matter. On the eve of the disastrous Battle of Long Island, Washington was incensed by the poor discipline of his troops, finding “something more like a crazy carnival atmosphere than a tidy military camp.” Washington lashed out to one of his generals:

The distinction between a well regulated army and a mob is the good order and discipline of the first, and the licentious and disorderly behavior of the latter.

(Emphasis mine.) It is important to note here that the Continental Army, which was under Washington’s orders, is the one he deemed to be a “mob,” not a “well regulated army.” This makes clear that — to General Washington at least — the property that makes an army “well regulated” army is not to be under government orders (his army was under orders), but to show “good order and discipline.”

It’s particularly instructive to note that Washington’s army had just swelled from 10,500 to 23,000 men, mainly by the arrival of newly recruited militiamen. (They faced 26,000 trained British soldiers and 8,000 Hessian mercenaries.) So Washington was acutely aware of the problem of discipline as it applied to “callow youths grabbed from shops and farms.” The common man needed to know how to handle himself in armed conflict, particularly since the founders had no intention of forming a standing army.

If we take Washington’s use of the terminology as canonical, the Second Amendment could be rephrased in modern terminology to say:

Since the security of a free state requires that the common man who might be called up for military service know how to handle himself in armed conflict, the right of the people to keep and bear arms shall not be infringed.

It should be noted, then, that Heller’s interpretation of “well regulated” to mean the “imposition of proper discipline and training,” seems to be entirely correct. However, where Heller seems to go wrong is when it gives license to ban the “weapons that are most useful in military service.” They base this on a historical analysis that suggests that the pre-existing right that the Second Amendment protects is for the weapons that were “in common use” and allows the prohibition of “dangerous and unusual weapons.”

But here the clarifying purpose of the prefatory clause is applicable. If the intent is that the common man be able to handle himself in armed conflict, he should be familiar with military weapons. More precisely, he should be familiar with the standard infantry weapon. This does not alter our view of the pre-existing right: At the time, standard infantry weapons and common weapons were one and the same. They are different today precisely because military weapons have been banned since 1934. If there were a “dangerous and unusual” weapon it would have been field artillery, not the standard infantry weapon.

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