The American Militia

The Well Tempered Tool




A few chapters ago; along about The American Militia #8, we discussed the term “ Regulated” and how it applies to training. Now we continue with some constitutional interpretations. This is eminently appropriate considering the soon to be delivered decision by the Supreme Court of the United States in the case of D.C. Vs Heller. It’s all about the Second Amendment.

You have seen the phrase many times, the “well regulated militia”, and you have possibly been drawn into the discussion of the meaning and importance of that phrase. When used in this context, “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 term “regulated” has important meaning. It has an historical meaning and a contemporary meaning. Below, the Second Amendment terms are described relative to their historical meaning at the constitutional convention of 1787 through its adoption in the Second Amendment in 1789. Then they are discussed in the contemporary meaning today.

By the way, there is a second version of this phrase. It is, “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 slight changes in punctuation and capitalization were introduced in the hand written transcription that appears in the national archives. Both are in more or less common usage and have little meaning relative to our study of “regulation”.

Which interpretation, historical or contemporary is proper, that is the question. The best guidance I can give you is the following. If we were to use contemporary interpretation of the term regulated, and agree that it is functionally different from the historical meaning as applied, then the meaning of the document in which it appears would likewise have changed over time as that meaning has changed. Such changes are not good if one is interpreting the “Rules” of our country, especially an enumeration of basic human Rights. For example, changing the rules in the middle of a poker game is not good; attempting to do that could get you shot in some circles and eras. But I digress.

If we use the original meaning, that which was in common usage at the time of writing of the Second Amendment, that will also tie down the Intent of the writers and those who finally adopted this Bill of Rights for the people of the now United States.

Recently, topics such as this, the Second Amendment and other Constitutional issues, have been getting a lot of attention. High power scholars and historical experts, much more “expert” than me, have been saying a lot. Let’s look at what some of them have said.

This is going to take some time and concentration on your part, the subject is just a bit obtuse and the explanation must be careful. When you dive into this one, think of other historical terms similar to “regulated” which might apply; things like “the well oiled machine”, “good condition” and “the well tempered tool”. Avoid the contemporary meaning of regulation as in; “constrained by rules” or “regulations” imposed by a regulating authority. Avoid the equation of regulated to terms that did not exist at the time of its incorporation in the Second Amendment, and instead focus on the historical concept such as a well regulated clock, one which functions properly and accurately.

Here with is a collection on this topic (abbridged) collected by David Hardy, on whom you can find more information at http://armsandthelaw.com/aboutus.php.

By the way; in researching this series of essays, I have come to find some very interesting pages in the on-line encyclopedia Wikipedia under the key phrases “Second Amendment” and “Militia”. Some of them are VERY well written, but understand that Wikipedia is a collection of contributions from various sources, most are legitimate but some may not be. It is quickly changing in some popular topics and should be studied with a sharp eye on the B.S. meter. I trust you will be able to spot any misguided rhetoric by the way it is written.

But now, on to Dave Hardey.

— begin —

From; http://armsandthelaw.com/archives/WellRegulatedinold%20literature.pdf

“Well Regulated” Doesn’t Mean
What Most People Think It Does

By Denton Bramwell, Aug 6, 2007

What does “well-regulated” mean? Or, more to the point, what did it mean at the time that the constitution of the United States was being written? Fortunately, manyold writings have been digitized, and are available on-line, making it possible to research that question.

Practically all modern references to the term “well-regulated” refer to activities that are regulated by law, such as the airline industry, the fur industry, or the gambling “industry”. The contrast with writings from the 19thcenturywas quitepronounced. Practicallyall the earlier references Icould find had quite a different meaning, inconsistent with that interpretation. The clear meaning of the term in earlier texts was closer to “properly operating” or “in its ideal state”.

This is not too surprising, given that the emphasis of the earlier era was on individual responsibility, industry, and proper behavior being the foundation of a prosperous and orderly society, vs. our present indulgence in government regulation as a source of social good.

In Item 1, Anne Newport Royall commented in 1822 that Huntsville, Alabama was becoming quite civilized and prosperous, with a “fine fire engine” and a “well regulated company”. I suppose one could make the case that the firefighters were especially subject to rules and laws, but the passage is more coherent if read, “They have a very fine fire engine, and a properly operating company.”

William Thackary’s 1848 novel (item 4) uses the term “well-regulated person”. The story is that of Major Dobbin, who had been remiss in visiting his family. Thackary’s comment is to the effect that any well- regulated person would blame the major for this. Clearly, in this context, well-regulated has nothing to do with government rules and laws. It can only be interpreted as “properly operating” or “ideal state”.

In 1861, author George Curtis (item 5), has one of his characters, apparently a moneyhungry person, praising his son for being sensible, and carefully considering money in making his marriage plans. He states that “every well-regulated person considers the matter from a pecuniary point of view.” Again, this cannot logically be interpreted as a person especially subject to government control. It can only be read as “properly operating”.

Edmund Yates certainly has to be accepted as an articulate and educated writer, quite capable of properly expressing his meaning. In 1884 (item 6), he references a person who was apparently not “strictly well-regulated”. The context makes any reading other that “properly operating” or “in his ideal state” impossible.

One of the most telling items is from 1834, Blackwood’s Edinburgh Magazine (item 8). Here we have a discussion of people who rose up against “encroachments of the Crown”, i.e., active rebellion, while maintaining or restoring their “well-regulated organization.” Clearly, these were people who were actively shaking off government encroachment, not people in subjection to the rule of law. Yet they had, and maintained, a “well-regulated organization.” Again, the “subject to government laws and rules” interpretation is impossible. The passage must be read as “properly functioning” or “in its ideal state”. In reviewing older writings, I have made no effort to select those that favor the “properly functioning” or “ideal state” interpretation. As nearly as I can tell, the items I have listed are a good representation of the old use of the term. They stand in sharp contrast to our modern use.

1. [http://findarticles.com/p/articles/mi_qa3880/is_200104/ai_n8951482/pg_1] Anne Newport Royall 1822, regarding Huntsville, Alabama: They have a very fine fire engine, and a well regulated company.

2. History of British Commerce and of the Economic Progress of the British Nation, 1763-1878 by Leone Levi, 1872, pages 238-239 http://books.google.com Regarding The East India Company, which had a monopoly on trade with China: And it was assumed that, under such circumstances, the action of a well-regulated company, acting with honour and prudence, calculated to inspire confidence and encourage intimacy of relations, was of great benefit. But such allegations did not agree with the evidence that the Chinese have always been keen to engage in trade; wilst, as to the advantage of a well-regulated company over private traders, it was greatly neutralized by the fact that the Company had ceased practically to be a purely commercial company, and had acquired all the character of a military power.

3. http://www.constitution.org/cons/wellregu.htm The meaning of the phrase "wellregulated" in the 2nd amendment From: Brian T. Halonen The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

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." (other docs say “Major”)

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 phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

4. William Makepeace Thackeray - Vanity Fair, A Novel Without a Hero 1848 http://books.google.com/books He did not like to own that he had not as yet been to see his parents and his dear sister Ann—a remissness for which I am sure every well-regulated person will blame the major. And presently he took his leave, leaving his address behind him for Jos, against the latter’s arrival. And so the first day was over, and he had seen her. When he got back to the Slaughter’s, the roast fowl was of course cold, in which condition he at it for supper. Knowing what early hours his family kept, and that it would be needless to disturb their slumbers at so late an hour, it is on record, that Major Dobbin treated himself to halfprice at the Haymarket Theater that evening, were let us hope he enjoyed himself.

5. Trumps: A Novel, Geo. Wm. Curtis, 1861, page 146 http://books.google.com/books Marriage is a most important relation. Young men can not be too cautious in regard to it. It is not an affair of the feelings merely; but common sense dictates that when new relations are likely to arise, suitable provision should be made. Hence every well regulated person considers the matter from a pecuniary point of view. The pecuniary point of view is indispensable. We can do without sentiment in this world, for sentiment is a luxury. We can not dispense with money, because money is a necessity. It gives me, therefore, great pleasure to hear that the choice of my son has evinced the good sense which, I may say without affection, I hope he has inherited, and has justified the pains and expense which I have been at in his education. My son, I congratulate you. Mrs. Dinks, I congratulate you.

6. Edmund Yates: His Recollections and Experiences, Edmund Yates, 1884, page 68 http://books.google.com/books Some of his friends blamed him, and some pitied him; but to a few good and staunch and true who knew the man, his affectionate disposition, his warm generous heart, he was lovable to the last. By those his memory is still cherished in the full feeling that they could far more readily have spared a more strictly well-regulated person.

7. The Jew and Other Stories, Ivan Turgenev, Chapter 4, 1846 http://etext.library.adelaide.edu.au/t/turgenev/ivan/jew/chapter4.html One autumn day there were five of us, ardent sportsmen, gathered together at Piotr Fedorovitch’s. We had spent the whole morning out, had run down a couple of foxes and a number of hares, and had returned home in that supremely agreeable frame of mind which comes over every well- regulated person after a successful day’s shooting. It grew dusk. The wind was frolicking over the dark fields and noisily swinging the bare tops of the birches and lime-trees round Lutchinov’s house. We reached the house, got off our horses....

8. Blackwood’s Edinburgh Magazine, 1834, page 71 http://books.google.com/books The English have, in every age, as Mr Burke observes, been remarkable for their love of freedom, but never till recently actuated by the passion for equality: they were extremely solicitous that the public liberties should be maintained, but they had no wish that the order of society should be subverted in the struggle, or the privates elevated to the rank of officers, in combating the common enemy. They went forth to resist the encroachments of the Crown, in the natural order of society, headed by their landlords, their magistrates, or their leading citizens, and when the victory was gained, fell back to the same state of established and well-regulated organization. Even during the democratic fervor of the great Rebellion, the same order was preserved…

9. The Writings of Harriet Beecher Stowe, Harriet Beecher Stowe, 1896, page 292 http://books.google.com/books “And there ’s no sort of reason, Betsey, why you should n’t exercise self-control and eat your supper,” pursued Miss Dorcas authoritatively. “A well-regulated mind”--“You need n’t talk to me about a well-regulated mind, Dorcas,” responded Mrs. Betsey in an exacerbated tone. “I have n’t got a well-regulated mind and never had, and never shall have; and reading Mrs. Chapone and Dr. Watts on the Mind, and all the rest of them never did me any good. I’m one of that sort that when I’m anxious I am anxious; so it don’t do any good to talk that way to me.”

10. The Friends’ Library: Comprising Journals, Doctrinal Treatises, and Other Writings of Members, William Evans and Thomas Evans, 1939, page 176 http://books.google.com/books There is yet another precious advantage results from bringing up children in habits of well-regulated industry and economy; little business will then be found sufficient to bring up a family reputably, when our wants are confined to real comforts and conveniencies, which Truth allows, as far as ever our circumstances will warrant them. It is those things which have nothing to recommend them but show, and an appearance of what the world calls gentility, that are opposed by the Truth in each of our minds, did we but attend to it more faithfully; for want of this attention, how many have become slaves to appearances! And where this well-regulated industry and economy are wanting, and idleness and fulness of bread prevail, how little is to be observed in the conduct of such, of reverential thankfulness for the bounties they are receiving from heaven.

11. The New Harmony Movement, George Browning Lockwood, Charles Allen Prosser, 1905, page 172 in the original, page 170 in the online version. http://books.google.com/books You should have honesty of purpose; devotion to the success of each and all communities; confidence in one another and submission to majority rule; well-regulated industry and wise economy; to make provision for the schools should be an object of first importance.

--end--

If you stuck this out to the end, you found some of those examples of “regulated”, in use at the time of the writing of the Second Amendment, that have nothing to do with elected or appointed “Regulators” or the rules or “regulations” they produce that control our lives today. Instead you found the generic or, if you will, the natural meaning and usage of the term from the days our Constitution and Bill of Rights was created. Notice that this early usage predates the current saturation use of Regulator and Regulation seen almost every day. You know them; “Don’t feed the pigeons, City Regulations 17.437(a)” or some such sign. Today, everywhere there are signs that say do this or don’t do that. Back in 1789 the usage was more fundamental, as above; “a well-regulated company”, “well-regulated Appetites”, “well-regulated mind”, “a more strictly well- regulated person”, and on and on. It appears that when describing individuals the term might mean a more even tempered individual. Perhaps the meaning is more close to that of the well tempered tool which functions properly.

This term, regulated, is one of several that are troublesome that appear in the Second Amendment. Think of, “Right to Keep and Bear Arms”, or “shall not be infringed”, or even “Militia”. If you think of the Militia (the group of individuals) as a tool, one that needs to be functioning smoothly with all its parts in good working order, comprised of individual militia (people), with their equipment and properly trained, it is then “well regulated”.

But what of the tools the militia would use and not of the Militia as a tool; in particular what of the guns. That one is next and then it’s back to the Militia. Just remember, you are the militia and the Militia is you.



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