Scalia guns may be regulated

[Technosavant]

No, I believe the "well-regulated" part was that the militia be under government control.

What you believe is immaterial.

What matters is the language as was used and understood when the words were placed on paper. It's a standard method of document interpretation, especially of documents from eras before our own... first understand what they would have meant based on the vocabulary used and how it was understood at the time by the authors and recipients, and only after understanding that can our own interpretation of that document be formed. If we're just impressing our own beliefs and interpretations upon a document without that basic bit of research, then there's little point to the document at all... we'll just have it saying what we want anyway.

There's no need to turn to the "well regulated" phrase to establish the constitutionality of regulating firearms ownership- the other rights enumerated in the Bill of Rights are generally not understood as completely absolute. That is, the government can place certain restrictions on them, such as laws related to libel and slander in the exercise of free speech. Some types of speech are not considered protected by the first amendment. Likewise, some ownership of firearms is not considered protected by the Second Amendment. It seems to me that Scalia left the door open in his comments to this... there is much room for litigation to nail down EXACTLY what forms of ownership are unprotected. Very few people would choose to throw out all forms of regulation of firearms, but that does not mean that all forms of regulation of firearms will be welcomed.

While Scalia's exact words might raise our dander a bit, I really don't think he was saying anything we didn't know already.

 

[Frank Ettin]

...why do we or any judge need to interpret, re-interpret or misinterpret the Constitution.., why can't it be read and understand the words as written ?...

Because courts interpret laws, including where applicable the Constitution, for the purposes of deciding disputes. There can be, and often is, a disagreement among parties to a dispute about what laws mean in the context of the dispute. And deciding disputes is what courts are there for.

So Mr. Heller objects to the District of Columbia not allowing him to have a handgun at home and the District of Columbia's implied threat to prosecute him if he does. So he contends that the law the District of Columbia would assert to put him in jail if he has a handgun at home is unenforceable because it's unconstitutional. The District of Columbia contends that the law is valid and enforceable because it does not violate rights protected for Mr. Heller by the Constitution.

That is a case of controversy within the province of the federal courts to resolve. And doing so will necessarily require interpretation and application of the Constitution.

Law (including the Constitution, which is, itself, law) does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

And just who gave the courts the authority to thus interpret and apply the Constitution? Actually, the Founding Fathers did (Constitution of the United States, Article III, Sections 1 and 2):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

Or, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

 

[MLeake]

BlueTrain, several of the founders openly viewed the militias as defense against tyranny. They were not in favor of a strong central government, and wanted each state to have the ability to back up its disagreement with the central government with force, if necessary, to prevent a return to royalist rule or dictatorship.

Several of them openly stated that the people should never be forced to give up personal arms.

You seem to insist on applying modern interpretations of phrasing, over the meanings those phrases had at the time, according to the men who drafted them.

The problem we keep running into, though, is that the central government has grown stronger not through military means, but through granting itself more and more taxation powers, and holding states hostage to fiscal extortion.

And people seem ok with that, because many of them reap perceived benefits from that same central government - never caring that the government obtained the funds necessary for those benefits by taking them from others.

As Chris Rock put it, "I don't pay taxes - the government takes taxes."

Americans are notorious for not knowing their history. The lessons of the fall of Rome seem lost on the majority. (Paying off the mob - as in the "entitled" masses not the Mafia - can only go on for so long before things fall apart.)

Anyway, a disproportionately strong federal government is exactly what the founders did not want.

 

[BlueTrain]

No, no, no. And no.

They did believe in a strong central government because they had a weak central government under the articles and it didn't work. And the weakness was in their inability to collect taxes, among other things. Government apparently doesn't work on a voluntary basis.

How many meanings can "well regulated" have anyway? And what modern meaning is different from "archaic meanings?" In any event, we do live in modern times, not the 18th century, although some seem to live in the 19th and early 20th century. Well regulated meant subject to civil authority.

The history of Rome is not our history.

What do you think Romney's take on the power of the federal government would be, in actions, not in words?

And by the way, where do state governments fit into all of this? Huh?

 

[G.I.DAVE]

There is something to be said about the civilian population keeping up with technology to the military standards.

If civilians were restricted to carry muzzleloaders, then the armed citizen is not really armed to keep the balance of a tyrannical government.

I thik the laws are fine how they are. The only thing I would "restrict" or take a look at, is all this ballistic body armor these guys come up with. But then, once again one could argue if the military has it, the civilian populace should be able to outfit themselves...

 

[BlueTrain]

If what I believe is immaterial, then what others here believe is equally immaterial, is it not such that it is?

Some of the things printed in this thread could have resulted in jail time in the 18th century. But then, I suppose that's why most of us use pen names.

 

[Salmoneye]

reg·u·late
   /ˈrɛgyəˌleɪt/ Show Spelled[reg-yuh-leyt] Show IPA
verb (used with object), reg·u·lat·ed, reg·u·lat·ing.
1.
to control or direct by a rule, principle, method, etc.: to regulate household expenses.
2.
to adjust to some standard or requirement, as amount, degree, etc.: to regulate the temperature.
3.
to adjust so as to ensure accuracy of operation: to regulate a watch.
4.
to put in good order: to regulate the digestion.

 

[Technosavant]

How many meanings can "well regulated" have anyway? And what modern meaning is different from "archaic meanings?" In any event, we do live in modern times, not the 18th century, although some seem to live in the 19th and early 20th century. Well regulated meant subject to civil authority.

It apparently has more meanings than you believe it has. We do indeed live in modern times, but we are dealing with a document written before this modern era, and you cannot project modern meanings back in time. We don't need to discuss the Roman era; we're talking late 1700s America. That's hardly an incomprehensible horizon.

And yes, beliefs are irrelevant when they're incorrect. You can believe that 2+2=5, but nobody else is going to sign on to that. When you're dealing with document interpretation, the commonly accepted method is to interpret first into the original situation, not the modern one. You then bridge the original interpretation into the modern context. This is how it's going to be done if you're translating the Odyssey into modern English, it's how you'd make sense of Shakespeare's plays, it's how you'd read the US Constitution.

Projecting one's own modern context, thought patterns, and desires upon a document is called the "reader response" school of thought. Those who hold to that contend that there is no meaning to a work beyond that which the reader wishes to assign to it. This is oxymoronic, since the authors clearly had a meaning in mind when they created the work.


The etymology of "regulate" comes from the classical Latin regula, and had with it the concept of ensuring something conformed to a given principle or norm. As others have pointed out, that meaning is still extant in the word... we will occasionally mention a "regulator" as something that has nothing to do with force of law or government, but instead concerns everything being in order or working normally. The modern definition of regulate meaning to rule over does not trump nor does it redefine all previous usages.

In this sense, a "well regulated" milita is one that is capable of doing what it was intended to do. However, this is the "whereas" clause of the amendment. Whereas clauses provide a reason for the actual statement (which is the "... the right to keep and bear arms shall not be infringed" part), they do not themselves carry the force of law. That is what the actual statement does... the whereas clause says why the founding fathers thought it was a good idea to not infringe upon the right to keep and bear arms, but it is not necessarily an exhaustive reasoning nor would that reason cause the statement to fail the moment it is no longer the primary reason.

 

[NJgunowner]

Guns are already regulated, so in that respect Scalia's comments are 100% true. I think some of you guys are reading too much into his comments. The sky isn't always falling.

 

[armoredman]

I have been taught that the meaning of well regulated in the Colonial times was far more in line with teaching the civilian militia how to fight. The British troops were called "regulars", after all. The Founding Fathers had a horror of standing armies, well justified, and militias were state controlled, or local controlled. They wanted a stronger federal government than the ill fated Articles of Confederation, not due to militias and guns, but monetary matters and state tarrifs laid on neighboring state goods - THIS is where the infamous Commerce Clause comes from.
I think I would have liked to see the face of the interviewer in this interview when Justice Scalia casually mentioned hand held rocket launchers may be covered under the 2A - think Bud's Gun Shop could do a good business in gently used RPG7s?

 

[Aguila Blanca]

No, I believe the "well-regulated" part was that the militia be under government control. Clearly! They didn't want private armies. Your opinion may differ but I don't want private armies, either.

Your belief is incorrect. It has been well and thoroughly documented that the phrase "well regulated" as used in the 2nd Amendment meant "well trained." If you want doublespeak, how can you possibly rationalize saying in the same sentence that the militia (the people) should be "regulated" (in the sense of subject to restrictions in their arms) and also that the RKBA shall not be infringed (regulated)?

As to armies, you have it reversed. What the Founders did not want was a standing (public) army. They wanted the People -- the militia -- to be the first line of defense. The original Militia Act of 1792 specifically stated:

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, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain 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 with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, 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.

Source: http://www.constitution.org/mil/mil_act_1792.htm

How many meanings can "well regulated" have anyway? And what modern meaning is different from "archaic meanings?" In any event, we do live in modern times, not the 18th century, although some seem to live in the 19th and early 20th century. Well regulated meant subject to civil authority.

No. "Well regulated" meant well trained and well coordinated. Just as a clock that keeps perfect time is said to be "well regulated."

 

[MLeake]

Ok, BT, tell me again how I was incorrect?

Did some want a stronger central government? Sure. Hamilton did, for one, or at least he wanted a strong central bank.

Early Congresses didn't want to have to fund a standing Army or Navy. It was nearly impossible to get six frigates built prior to the War of 1812, and several of those spent considerable war time at the pier, and/or were put in irons at the war's close.

The early history of our country was all about a limited federal government, for both philosophical and financial reasons.

If you want to argue that changing times require changing interpretations, that's one thing; historical revisionism is something else, entirely.

 

[Hook686]

I don't think that aligns very well with the idea that "well regulated" was intended to mandate government control over the armed citizenry.

But, I'm no Constitutional scholar, and I'm always happy to hear others' opinions.

I am no law educated individual either, but I do have an opinion. My thought is that in order for anything to be 'Regulated' a specified 'Authority' is required. Be that state, or federal, or even individual. The problem with individual is it ends up one big mob action, as individual opinion is just that, individual. That leaves state, or federal.

I would favor a federal authority was intended, as a federal government had been decided upon and a federal constitution created, which included a Bill of Rights that I view as an effort to 'Regulate' the new Federal Government.

That's my opinion and I'm sticking to it.

 

[MLeake]

The "Militia" was never Federal in those days. The Army was not militia, though many Army members probably had militia experience.

So it's a long reach to argue that they meant Federal regulation of state militia, Hook686.

 

[BlueTrain]

Regulation by federal authorities was not implied. But the man who insisted on these things, George Mason, was clear in wanting civil control of the militia. He wanted several other things like the end of slavery and term limits but he didn't get anywhere with those.

 

[Aguila Blanca]

The term "a well regulated militia" did NOT in any way mean or imply a militia subject to written regulations, whether they were Federal, state, county or municipal. The word "regulated" in the context of the prefatory clause to the 2nd Amendment meant "trained," "practiced," "organized," "orderly," "uniform," etc.

 

[Brian Pfleuger]

Literal, grammatical, historical hermeneutics, not just for scripture.

 

[BlueTrain]

You gentlemen are undoubtedly correct that nothing was implied in the 2nd amendment concerning actual regulations. However, contributor Blanca has kindly posted those federal regulations passed five years after the constitution to provide for such regulations. The militia act goes into some detail regarding regulation of the militia, which as has been pointed out, were state institutions and as such, already existed in some form. I have done no research on what state regulations may have existed, since the militia acts concerned themselves with the militia in relation to federal service.

It is with some regret that I am no longer of legal age to be part of the militia, although I once served in a unit that was at one time styled the "Washington Light Infantry." That was over 35 years ago.

Some of these organizations existed before the revolution and were naturally called state troops. Some more or less regular troops were stationed in small numbers along the frontier, mainly along the Allegheny Front where there was constant Indian troubles until after the Battle of the Fallen Timbers. They were called "rangers."