I'm currently debating the topic of gun control with a few people I know personally, and someone in the debate brought up the "a well regulated militia" part of the 2nd Amendment, saying that it's equivalent to governmental gun control. I argued that it applies to militias only though. Am I correct in assuming this, or does the "well regulated" part apply to gun ownership in general?
TL;DR: It's controversial, but it looks like it also protects the rights for the individual.
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.
While the exact explanation is a matter of opinion, it reads like it's a subject, a reason and a right to the subject. Your question is essentially whether or not the subject is a group, an individual or both. The definition of "Militia" can be multiple things though, due to the age of the 2nd Amendment it changed over time and wasn't very exact to begin with.
- "the Militia ... civilians primarily, soldiers on occasion."
- "the Militia comprised all males physically capable of acting in concert for the common defense."
- "And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
- In a militia, the character of the laborer, artificer, or tradesman, predominates over that of a soldier."
- "the militia system ... implied the general obligation of all adult male inhabitants to possess arms." .
This site explains it quite well in my opinion.
"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 first two phrases are related to each other. The fact that the third phrase is separated from the verbal phrase by a comma indicates that the verbal phrase has more than the third phrase as its subject. The abbreviated grammatical construction actually renders the meaning of the Second Amendment as:
"Neither a well regulated Militia, being necessary to the security of a free state, nor the right of the people to keep and bear Arms shall be infringed."
So what does the Supreme Court think about the explanation?
Current Supreme Court case law defines the Second Amendment (second part) as protecting from infringement by the federal and state governments, the right of the individual to keep and to bear a weapon which is part of the ordinary military equipment or which use could contribute to the common defense.
Three cases are cited:
- U.S. v. Planned Parenthood v Casey (120 L. Ed. 2d 674 (1992))
- U.S. v. Verdugo-Urquidez (108 L. Ed. 2d 222 (1990))
- U.S. v. Miller (83 L. Ed. 1207 (1939))
According to the SAF the Justice Department includes individuals to be protected by the 2nd Amendment.
The Justice Department’s enlightened interpretation of the Second Amendment as an individual right was hailed today by the firearms civil rights organization that has supported a key Texas case that led to a federal appeals court ruling upholding the individual rights concept.
“Today’s constitutional scholars, including Prof. Laurence Tribe, confirm that the Second Amendment is an individual right,” LaCourse continued. “For years, our own Justice Department has been deaf and blind to such scholarship, and the Fifth Circuit ruling forced the government to face the facts. Solicitor General Olson and Attorney General John Ashcroft deserve credit for their courageous reversal of four decades of constitutional denial.”
While the above is biased, it does state the opinion of non-trivial parties.
The Militia Act of 1792 was written less than a year after the ratification of the Bill of Rights. It provided an almost immediate, complete definition of the militia by contemporary understanding of the terms used in the Constitution, with the debates on the wording of the Bill of Rights still ringing in the ears of the people.
Section I. [...]That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia [...] That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, [...] not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or [...] twenty balls suited to the bore of his rifle, and a quarter of a pound of powder [...]
[...]and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.[...]
Enrollment in the Militia was not a right. It was a duty. Reaching age 46 removed the obligation for serving in the militia, but no section of the act precludes service after age 45 or forfeiture of the arms required for membership in the militia. The firearms required for militia service could not be forfeited as payment for taxes due or court-levied fines.
10 US Code § 246, amended Aug 10, 1956 is the current implementation of the Milita Act:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Once again, membership is an obligation, not a right. Once again, at age 45, the obligation is removed, but continued membership is not precluded.
In current parlance, "well-regulated" means defined and controlled by an all-encompassing set of rules, laws and regulations. At the time of the Constitution, "well-regulated" meant "properly functioning" or "in good working order." For any military organization to be in good working order, its members must have access to and training/familiarity with arms on-par with "regular" military units.
Use of "well regulated" in the Oxford English Dictionary:
1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
1714: "The practice of all well-regulated courts of justice in the world."
1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The idea that the right of the people to keep and bear arms for hunting and defense of the individual and his family was considered common-sense. Every animal has the inherent right and duty to protect itself and its progeny and hunt to feed the same. Man is no less endowed with these rights than a dog or a bear.
The right of the people (who are the militia, and vice-versa) to keep and bear arms places the people in the position where they can choose to point those arms in support of or in opposition to a national military, depending upon the situation. This was one of the most extreme protections of the rights of the people ever set into law, codifying that the people have the supreme power of violence to keep the government under control, at a time when other governments were enforcing their supremacy over their people. If a right as radical as this is protected, the animal rights of hunting and self defense can't possibly be invalidated.
[...]Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands [...] - James Madison, Federalist Paper 46
Even at the height of World War 2, the combined United States armed forces didn't exceed 1% of the American population, which was the premise cited by Madison above.
Arguments as to the effectiveness of the American Militia against the US military are a separate discussion. Even if it is an exercise of futility, it is the right and obligation of the American people (which is the militia) to oppose a despotic regime by force of arms.
The first few amendments in the Bill of Rights formalized the victory won by a colonial militia in the Battle of Concord. The colonial villages had organized militias against the wishes of the state and royal governments, and drilled weekly through the winter. The Crown, using soldiers who reported to the Massachusetts governor, attempted to seize the colonists' guns, ammunition, and cannons. The soldiers were quartered in the homes of Boston residents. The soldiers nearly captured a chest of "papers and effects" of colonial leaders, and did arrest Paul Revere.
Thus, we can see that the Second Amendment was designed to help individuals organize and arm themselves in militias, so that they could potentially defeat state and federal governments.
For a great description of the Battles of Lexington and Concord, their context, and their results, you can read Paul Revere's Ride by David Hackett Fischer. He is a very good storyteller.
The interpretation of the 2nd amendment has to be taken as informing the part of the Constitution that defines the militia: In the Context of constitutional times, there was the standing army (small), and "the militia," which was understood to be the entirety of the able-bodied adult male population. The militia understood themselves to be the "reserve" force, liable to be called up to full active service. In this context, the populace is under the regulation of the military.