Commentary
The Real Meaning of "A Well-Regulated Militia"
by Adam de Angeli
Posted March 27, 2021
With gun violence back in the news, plus a hideous ruling from the Ninth Circuit, the usual anti-gun propaganda is back, too.
In a way, it feels pointless to explain for the millionth time why gun control doesn't work. The facts never change.
The Boulder shooter wasn't stopped by Colorado gun laws, which include a "red flag" law, universal background checks, a ban on full-capacity magazines, nor the city of Boulder's ban on so-called "assault weapons."
We made all these same points the last time there was a gun control push, and the time before that. If you need intellectual ammunition for a gun rights debate, there's more than enough on the Internet elsewhere. You can check out Alan Korwin, Crime Prevention Research Center, GOA, or a thousand other places.
Activism, not academic debates, will ultimately determine the future of gun rights, but on one academic issue I want to make a point concerning the meaning of the Second Amendment, because it is powerful and almost never made.
I recently heard Alan Dershowitz making the usual anti-gun arguments on his show, and he made the familiar claim that the Second Amendment was really only written to apply to militias. Dershowitz made the usual straw-man argument that gun advocates "ignore" what he called the "preamble" of the Second Amendment: "A well-regulated Militia, being necessary to the security of a free State," which precedes the operative language: "the right of the people to keep and bear Arms, shall not be infringed."
Dershowitz argued, of course, that the "preamble" was meant to clarify that the right to keep and bear arms was only meant to apply for a militia purpose.
Second Amendment supporters usually respond with this counterpoint: The "preamble" is a subordinate clause. The amendment doesn't say "the right of a militia to keep and bear arms shall not be infringed"; it says "the people" have a right to keep and bear arms.
This is a correct response, but unsatisfying and lacking, because it begs the question: Why, then, did the Framers include the business about the militia in the first place?
They debated every word of the Constitution and Bill of Rights. If the subordinate clause is meaningless, why is it there in the first place?
To understand the true purpose of saying "A well-regulated Militia, being necessary to the security of a free State," it's important to understand the meaning of the militia and the state as they were understood the time.
At our nation's founding, and really until the Civil War, Americans considered themselves citizens of their states more than the country. The Constitution itself was the unifying document that superseded the Articles of Confederation, under which states were largely independent.
The soon-to-be United States fought a difficult war for its independence, and the Founders anticipated future conflict with European colonial powers, particularly Britain, which indeed returned for Round 2 in the War of 1812.
A "militia" was understood to include all able-bodied men to be called into service in case of national emergency.
What makes a militia "well-regulated"? Being capable of defending the country. Being properly armed to defend the country.
Thus, "A well regulated Militia, being necessary to the security of a free State," meant that all able-bodied men needed access to weapons of war: military rifles.
The subordinate clause was not intended to limit the people's access of firearms; it was to enhance it!
It clarified that the Second Amendment was not intended to restrict gun rights, but to enshrine the inclusion of battle rifles.
And going even further: Long before the Fourteenth Amendment would essentially apply the Bill of Rights to the States, the Second Amendment, by referencing the necessity of the militia for the security of a free State, applied to the right to all States.
Think about it: If a State imposed restrictions on gun rights, it could not raise a "well-regulated militia" when the time arose, if its citizens were not effectively armed.
By saying that a well-regulated militia was necessary to the security of a free State, the Second Amendment required all States allow their citizens the right to keep and bear arms, without infringement.
Conclusion: contrary to the claims of anti-gun activists, the subordinate clause of the Second Amendment was intended to support, not restrict, the right of the people to keep and bear arms.
We no longer have a state militia in modern America, but that doesn't give anti-gunners license to re-interpret the meaning of the Second Amendment's subordinate clause.
The right to bear arms, including weapons of war, is the right of the people of every State, according to the full text of the Second Amendment.
Next time you find someone following Alan Dershowitz in misreading the Second Amendment, you know the answer.
In a way, it feels pointless to explain for the millionth time why gun control doesn't work. The facts never change.
The Boulder shooter wasn't stopped by Colorado gun laws, which include a "red flag" law, universal background checks, a ban on full-capacity magazines, nor the city of Boulder's ban on so-called "assault weapons."
We made all these same points the last time there was a gun control push, and the time before that. If you need intellectual ammunition for a gun rights debate, there's more than enough on the Internet elsewhere. You can check out Alan Korwin, Crime Prevention Research Center, GOA, or a thousand other places.
Activism, not academic debates, will ultimately determine the future of gun rights, but on one academic issue I want to make a point concerning the meaning of the Second Amendment, because it is powerful and almost never made.
I recently heard Alan Dershowitz making the usual anti-gun arguments on his show, and he made the familiar claim that the Second Amendment was really only written to apply to militias. Dershowitz made the usual straw-man argument that gun advocates "ignore" what he called the "preamble" of the Second Amendment: "A well-regulated Militia, being necessary to the security of a free State," which precedes the operative language: "the right of the people to keep and bear Arms, shall not be infringed."
Dershowitz argued, of course, that the "preamble" was meant to clarify that the right to keep and bear arms was only meant to apply for a militia purpose.
Second Amendment supporters usually respond with this counterpoint: The "preamble" is a subordinate clause. The amendment doesn't say "the right of a militia to keep and bear arms shall not be infringed"; it says "the people" have a right to keep and bear arms.
This is a correct response, but unsatisfying and lacking, because it begs the question: Why, then, did the Framers include the business about the militia in the first place?
They debated every word of the Constitution and Bill of Rights. If the subordinate clause is meaningless, why is it there in the first place?
To understand the true purpose of saying "A well-regulated Militia, being necessary to the security of a free State," it's important to understand the meaning of the militia and the state as they were understood the time.
At our nation's founding, and really until the Civil War, Americans considered themselves citizens of their states more than the country. The Constitution itself was the unifying document that superseded the Articles of Confederation, under which states were largely independent.
The soon-to-be United States fought a difficult war for its independence, and the Founders anticipated future conflict with European colonial powers, particularly Britain, which indeed returned for Round 2 in the War of 1812.
A "militia" was understood to include all able-bodied men to be called into service in case of national emergency.
What makes a militia "well-regulated"? Being capable of defending the country. Being properly armed to defend the country.
Thus, "A well regulated Militia, being necessary to the security of a free State," meant that all able-bodied men needed access to weapons of war: military rifles.
The subordinate clause was not intended to limit the people's access of firearms; it was to enhance it!
It clarified that the Second Amendment was not intended to restrict gun rights, but to enshrine the inclusion of battle rifles.
And going even further: Long before the Fourteenth Amendment would essentially apply the Bill of Rights to the States, the Second Amendment, by referencing the necessity of the militia for the security of a free State, applied to the right to all States.
Think about it: If a State imposed restrictions on gun rights, it could not raise a "well-regulated militia" when the time arose, if its citizens were not effectively armed.
By saying that a well-regulated militia was necessary to the security of a free State, the Second Amendment required all States allow their citizens the right to keep and bear arms, without infringement.
Conclusion: contrary to the claims of anti-gun activists, the subordinate clause of the Second Amendment was intended to support, not restrict, the right of the people to keep and bear arms.
We no longer have a state militia in modern America, but that doesn't give anti-gunners license to re-interpret the meaning of the Second Amendment's subordinate clause.
The right to bear arms, including weapons of war, is the right of the people of every State, according to the full text of the Second Amendment.
Next time you find someone following Alan Dershowitz in misreading the Second Amendment, you know the answer.
