PREMIUM LEGAL RESOURCES
ASK A LAWYER
by Daniel J. Schultz
The Second Amendment to the United States Constitution states: "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
reference to a "well regulated" militia, probably conjures up a
connotation at odds with the meaning intended by the Framers. In today's
English, the term "well regulated" probably implies heavy and intense
government regulation. However, that conclusion is erroneous.
The words "well regulated" had a far different meaning at the time the
Second Amendment was drafted. In the context of the Constitution's
provisions for Congressional power over certain aspects of the militia,
and in the context of the Framers' definition of "militia," government
regulation was not the intended meaning. Rather, the term meant only
what it says, that the necessary militia be well regulated, but not by
the national government.
To determine the meaning of the Constitution, one must start with the
words of the Constitution itself. If the meaning is plain, that meaning
controls. To ascertain the meaning of the term "well regulated" as it
was used in the Second Amendment, it is necessary to begin with the
purpose of the Second Amendment itself. The overriding purpose of the
Framers in guaranteeing the right of the people to keep and bear arms was
as a check on the standing army, which the Constitution gave the Congress
the power to "raise and support."
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.
In keeping with the intent and purpose of the Bill of Rights both of
declaring individual rights and proscribing the powers of the national
government, the use and meaning of the term "Militia" in the Second
Amendment, which needs to be "well regulated," helps explain what "well
regulated" meant. When the Constitution was ratified, the Framers
unanimously believed that the "militia" included all of the people
capable of bearing arms.
George Mason, one of the Virginians who refused to sign the Constitution
because it lacked a Bill of Rights, said: "Who are the Militia? They
consist now of the whole people." Likewise, the Federal Farmer, one of
the most important Anti-Federalist opponents of the Constitution,
referred to a "militia, when properly formed, [as] in fact the people
themselves." The list goes on and on.
By contrast, nowhere is to be found a contemporaneous definition of the
militia, by any of the Framers, as anything other than the "whole body of
the people." Indeed, as one commentator said, the notion that the
Framers intended the Second Amendment to protect the "collective" right
of the states to maintain militias rather than the rights of individuals
to keep and bear arms, "remains one of the most closely guarded secrets
of the eighteenth century, for no known writing surviving from the period
between 1787 and 1791 states such a thesis."
Furthermore, returning to the text of the Second Amendment itself, the
right to keep and bear arms is expressly retained by "the people," not
the states. Recently the U.S. Supreme Court confirmed this view, finding
that the right to keep and bear arms was an individual right held by the
"people," -- a "term of art employed in select parts of the
Constitution," specifically the Preamble and the First, Second, Fourth,
Ninth and Tenth Amendments. Thus, the term "well regulated" ought to be
considered in the context of the noun it modifies, the people themselves,
The above analysis leads us finally to the term "well regulated." What
did these two words mean at the time of ratification? Were they commonly
used to refer to a governmental bureaucracy as we know it today, with
countless rules and regulations and inspectors, or something quite
different? We begin this analysis by examining how the term "regulate"
was used elsewhere in the Constitution. In every other instance where
the term "regulate" is used, or regulations are referred to, the
Constitution specifies who is to do the regulating and what is being
"regulated." However, in the Second Amendment, the Framers chose only to
use the term "well regulated" to describe a militia and chose not to
define who or what would regulate it.
It is also important to note that the Framers' chose to use the
indefinite article "a" to refer to the militia, rather than the definite
article "the." This choice suggests that the Framers were not referring
to any particular well regulated militia but, instead, only to the
concept that well regulated militias, made up of citizens bearing arms,
were necessary to secure a free State. Thus, the Framers chose not to
explicitly define who, or what, would regulate the militias, nor what
such regulation would consist of, nor how the regulation was to be
This comparison of the Framers' use of the term "well regulated" in the
Second Amendment, and the words "regulate" and "regulation" elsewhere in
the Constitution, clarifies the meaning of that term in reference to its
object, namely, the Militia. There is no doubt the Framers understood
that the term "militia" had multiple meanings. First, the Framers
understood all of the people to be part of the unorganized militia. The
unorganized militia members, "the people," had the right to keep and bear
arms. They could, individually, or in concert, "well regulate"
themselves; that is, they could train to shoot accurately and to learn
the basics of military tactics.
This interpretation is in keeping with English usage of the time, which
included within the meaning of the verb "regulate" the concept of self-
regulation or self-control (as it does still to this day). The concept
that the people retained the right to self-regulate their local militia
groups (or regulate themselves as individual militia members) is entirely
consistent with the Framers' use of the indefinite article "a" in the
phrase "A well regulated Militia."
This concept of the people's self-regulation, that is, non-governmental
regulation, is also in keeping with the limited grant of power to
Congress "for calling forth" the militia for only certain, limited
purposes, to "provide for" the militia only certain limited control and
equipment, and the limited grant of power to the President regarding the
militia, who only serves as Commander in Chief of that portion of the
militia called into the actual service of the nation. The "well
regula[tion]" of the militia set forth in the Second Amendment was apart
from that control over the militia exercised by Congress and the
President, which extended only to that part of the militia called into
actual service of the Union. Thus, "well regula[tion]" referred to
something else. Since the fundamental purpose of the militia was to
serve as a check upon a standing army, it would seem the words "well
regulated" referred to the necessity that the armed citizens making up
the militia(s) have the level of equipment and training necessary to be
an effective and formidable check upon the national government's standing
This view is confirmed by Alexander Hamilton's observation, in The
Federalist, No. 29, regarding the people's militias ability to be a match
for a standing army: " . . . but if circumstances should at any time
oblige the government to form an army of any magnitude, that army can
never be formidable to the liberties of the people, while there is a
large body of citizens, little if at all inferior to them in discipline
and use of arms, who stand ready to defend their rights . . . ."
It is an absolute truism that law-abiding, armed citizens pose no threat
to other law-abiding citizens. The Framers' writings show they also
believed this. As we have seen, the Framers understood that "well
regulated" militias, that is, armed citizens, ready to form militias that
would be well trained, self-regulated and disciplined, would pose no
threat to their fellow citizens, but would, indeed, help to "insure
domestic Tranquility" and "provide for the common defence."
1. In constitutional or statutory construction, language should always be
accorded its plain meaning. See, e.g., Martin v. Hunter's Lessee, 14 U.S.
(1 Wheat.) 304, 326 (1816).
2. "On every question of construction [of the Constitution] let us 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." Thomas Jefferson, letter to William
Johnson, June 12, 1823, The Complete Jefferson, p. 32.
3. "The Congress shall have Power . . . To raise and support Armies . . .
." U.S. Const., Article I, Section 8, cl. 12.
4. Senate Subcommittee On The Constitution Of The Comm. On The Judiciary,
97th Cong., 2d Sess., The Right To Keep And Bear Arms (Comm. Print 1982),
5. 3 J. Elliot, Debates In The Several State Conventions 380 (2d ed.
6. Originally published under the pseudonym "A Pennsylvanian," these
"Remarks on the First Part of the Amendments to the Federal Constitution"
first appeared in the Philadelphia Federal Gazette, June 18, 1789, at 2,
col. 1. They were reprinted by the New York Packet, June 23, 1789, at 2,
cols. 1-2, and by the Boston Centennial, July 4, 1789, at 1, col. 2. The
U.S. Supreme Court, in U.S. v. Miller, 307 U.S. 174, 83 L. Ed. 2d 1206,
59 S. Ct. 816 (1939), noted that the debates in the Constitutional
Convention, the history and legislation of the colonies and states, and
the writings of approved commentators showed that the militia comprised
all males physically capable of acting in concert for the common defense
-- a body enrolled for military discipline.
7. 11 Papers Of James Madison 307 (R. Rutland & C. Hobson ed. 1977)
(letter of Oct. 20, 1788, from Madison to Edmund Pendleton)(emphasis
8. An examination of the other nine amendments of the Bill of Rights
shows that they were designed, like the Second Amendment, to declare
rights retained by the people (1-9), or the States (10), and to provide a
clear list of powers not given to the national government: "Congress
shall make no law . . . ." (Amendment I); "No soldier shall . . . ."
(Amendment III); "The right of the people . . . shall not be violated,
and no warrants shall issue . . . ." (Amendment IV); "No person shall . .
.; nor shall any person . . .; nor shall private property be taken . . .
." (Amendment V); "In all criminal prosecutions, the accused shall enjoy
. . . ." (Amendment VI); "In Suits at common law . . . the right of trial
by jury shall be preserved, and no fact tried by jury, shall be otherwise
re-examined in any Court of the United States . . . ." (Amendment VII);
"Excessive bail shall not be required . . . ." (Amendment VIII); "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." (Amendment
IX); "The Powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people." (Amendment X).
9. 3 J. Elliot, Debates In The General State Conventions 425 (3d ed.
1937) (statement of George Mason, June 14, 1788), reprinted in Levinson,
The Embarassing Second Amendment, 99 Yale L. Rev. 637, 647 (1989). See
supra note 6 and accompanying text.
10. Letters From The Federal Farmer To The Republican 123 (W. Bennet ed.
1978) (ascribed to Richard Henry Lee), reprinted in Levinson, supra note
9, at 647. See supra note 6 and accompanying text.
11. S. Halbrook, That Every Man Be Armed: The Evolution of a
Constitutional Right, p. 83 (The Independent Institute, 1984).
12. U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) ("The Second
Amendment protects 'the right of the people to keep and bear Arms'....").
13. "The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of choosing Senators." (Article I,
Section 4); "The Congress shall have power . . . To regulate Commerce
with foreign Nations, and among the several States, and with the Indian
Tribes . . . ." (Article I, Section 8, cl. 3); "The Congress shall have
power . . . To coin Money, regulate the Value thereof, and of foreign
Coin, and fix the Standard of Weights and Measures . . . ." (Article I,
Section 8, cl. 5); "No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those of another: nor
shall Vessels bound to, or from, one State, be obliged to enter, clear,
or pay Duties in another." (Article I, Section 9); "In all Cases
affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court
shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make."
(Article III, Section 2, cl. 2); "No Person held to Service or Labour in
one State, under the Laws thereof, escaping into another, shall, in
Consequence of any Law or Regulation therein, be discharged from such
Service or Labour, but shall be delivered up on Claim of the Party to
whom such Service or Labour may be due." (Article IV, Section 2, cl. 3);
"The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to
the United States; and nothing in this Constitution shall be so construed
as to Prejudice any Claims of the United States, or of any particular
state." (Article IV, Section 3, cl. 2).
14. See supra, notes 6, 9 and 10 and accompanying text.
15. The Oxford English Dictionary gives the following examples of usage
for the term "well regulated": 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
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."
One definition of the word "well" in the Oxford English Dictionary is
"satisfactorily in respect of conduct or action."
One of The Oxford English Dictionary definitions for the term
"regulated" is "b. Of troops: Properly disciplined." The one example of
usage is: "1690: Lond. Gaz. No. 2568/3 'We hear likewise that the French
are in a great Allarm in Dauphine and Bresse, not having at present 1500
Men of regulated Troops on that side.'" The Oxford English Dictionary,
Second Edition (Clarendon Press, Oxford 1989).
16. "The Congress shall have Power . . . To provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions . . . ." U. S. Const., Article I, Section 8, cl. 15.
17. "The Congress shall have Power . . . To provide for organizing,
arming, and disciplining the Militia, and for governing such Part of them
as may be employed in the Service of the United States, reserving to the
states respectively, the Appointment of the Officers, and the Authority
of training the Militia according to the discipline prescribed by
Congress . . . ." U.S. Const., Article I, Section 8, cl. 16.
18. "The President shall be Commander in Chief of the Army and Navy of
the United States, and of the militia of the several States, when called
into the actual service of the United States . . . ." U.S. Const.,
Article II, Section 2, cl. 1.
19. U.S. Const., Preamble.
from: The "Well Regulated" Militia of the Second Amendment: An
Examination of the Framers' Intentions, THE LIBERTY POLE V.II, No.2,
The Official Publication of The Lawyer's Second Amendment Society.
Daniel J. Schultz is a practicing attorney in Los Angeles and President of
LSAS, a nationwide network of pro-right to keep and bear arms attorneys.
Contact the LSAS at (818)734-3066 or 18034 Ventura Boulevard, #329, Encino,
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.