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Genuine legal interpretation question: Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"? If the goal is a "well regulated militia",

Genuine legal interpretation question: Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"? If the goal is a "well regulated militia", and therefore gun rights "shall not be infringed", why do we interpret that as "everybody should have largely unfettered access to weapons" rather than "If part of a well-regulated armed force, access to weapons should be allowed during militia activities"? or something similar.

AlgorithmicTime 5y ago
Well-regulate here means well armed. So, theoretically, this means that the right of the people to keep and bear arms should include all weapons useful to a militia. So machine guns, mines, grenades, rocket launchers, tanks, helicopters, etc.
pseudalopex 5y ago
The US Supreme Court held "The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms."[1] [1] https://www.law.cornell.edu/supct/html/07-290.ZO.html https://www.law.cornell.edu/supct/html/07-290.ZO.html
- jvanderbot 5y ago
  Perfect answer. Thanks!
- beerandt 5y ago
  Separately, "regulate" didn't mean the same thing then as it does today. Think about the phrase "well-regulated". When has modern regulation ever been described as "well"? And what would that even mean? The meaning was intended to be somewhere between well-supplied and well-prepared. Similar to how "regulate interstate commerce" was intended as to encourage and provide-for, not to limit or restrict.
  - Throwawayaerlei 5y ago
    Well regulated as in a steam engine, which wasn't far on the horizon.
    - beerandt 5y ago
      I'd argue that's a result of the historic usage that has persisted, partly because it's compatible, but only in context. A steam regulator supplies steam from the boiler to the piston/traction, at the desired controlled rate. It does it via a restrictive valve, but even that's a stretch for it to be considered primarily a retarding device, and not an enabling/ accelerating one. We don't call a cars gas pedal a deccelerator or fuel-regulator, we call it the gas, or accelerator. The consistent usage is as a definition of supply.
      - throwawaylinux 5y ago
        Is this really the case, that regulated was equivalent to supplied in that context? I don't think it matters in the slightest for the purpose of the second amendment because the militia has no bearing on the power of the government to infringe the right of citizens to keep and bear arms, no matter how well restricted or well supplied it is. > We don't call a cars gas pedal a deccelerator or fuel-regulator, The pedal is not the mechanism, that is the throttle (aka fuel / air regulating device, it regulates flow by throttling it). There's people who call the gas peddle the throttle too, although less common. I don't think any of this proves a point about the word regulated in the constitution though.
        beerandt 5y ago
        It's relevant because the 2nd amendment calls for the militia to be well-regulated, (not the arms themselves, or the people), and then goes further, specifically saying the right to bear arms shall not be infringed. And it does so by declaring the well-regulated militia being necessary. Reading it all consistently, it's consistent with "enabling" and "supplying". There are no other words that even suggest there being a limitation on any party except the federal government. All other rights in the first 10 amendments are granting rights to the people or states, and restricting the federal government, with any exceptions explicitly stated and conditioned. Reading "well-regulated" as an open ended grant of authority to the federal government is entirely inconsistent. Especially if that authority is contradicted in the second half of the statement. Reading "well-regulated" to mean "supply" and "enable" resolves all these inconsistencies and internal contradiction. If you can read it in a way that makes consistent sense, then that's the way it should be read.
- majormajor 5y ago
  A 5-4 decision in 2008 that was along predictable lines. Let's not pretend it's a long-settled or non-controversial interpretation.
  - Throwawayaerlei 5y ago
    The two relevant decisions changed no facts on the ground outside of D.C. and Illinois. Reversal won't change anything except maybe the facts on the ground in Illinois, and will further inflame the divisions in the country. Although you should double check your assertions, some of the details of the decisions were not 5-4.
- PhineasRex 5y ago
  "I'm out of town this weekend, you can use my apartment" does not grant somebody unlimited permission to use your apartment. The supreme court is working backwards from their conclusion here.
  - throwawaylinux 5y ago
    "Guns are good for hunting. All citizens have the right to own and use guns." does not mean only hunters have permission to have guns, nor that people may guns for hunting.
    - throwawaylinux 5y ago
      * nor that people may use guns only for hunting. And not even that people's right to own and use guns would be revoked if it turned out guns were not good for hunting.
throwawaylinux 5y ago
> Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"? Because the former is pretty clear and unambiguous, and it is the part that actually describes the limitation of the power of the government. You can quibble over the meaning of well regulated militia and whether or not it is necessary for the security of a free state then or now, but that is clearly separate from the prohibition on infringement of the right to keep and bear arms. It does not state if a militia is necessary then people the right to bear arms. It does not state that people who are members of a militia have the right to keep and bear arms. It says all people have that right. Here's something to think about -- Why do people think hunting or personal protection have anything to do with the second amendment? EDIT: I'll give my answer to my own question, because it might be too ambiguous or obscure. It's actually not that I believe the second amendment has nothing to do with hunting or personal protection, actually the opposite. Those were such obvious things for people to use guns for that back then they did not even have to be listed. That obviousness is why those things still come up today in discussion about the second amendment despite being enumerated nowhere. It would have been utterly absurd when the document was written that people should not use their guns for hunting or self defense. Clearly statement about the militia in there had no intention of the restriction of the right to have and use guns. I also believe the security of a free state begins (and more or less ends) with the security of the free man so I think guns are a very important tool for self sufficiency, but that's another story.
solidsnack9000 5y ago
It's because there are well established ways to interpret "militia" and "the right of the people to keep and bear arms" that draw on institutions and approaches that had been in place for hundreds of years by the time the 2nd Amendment was written. We are not actually ignoring the "well-regulated" part. The amendment enables the militia, it doesn't define it. It is for other laws and institutions to actually sort out how militias work (the Militia Acts of the 1790s, groups like the https://www.missourimilitia.com https://www.missourimilitia.com and so on). You can't have a militia without private ownership of and relatively free and easy access to weapons. Today, we use "militia" to mean any unofficial group of armed people, but the common law militia was and is (it is still part of the laws of the USA, see 10 USC § 246) something more specific. The idea is that every potential lawful combatant -- every free man neither too old nor too young to fight -- could be summoned and they would supply their own weapon, clothing, and other supplies. The authorities did not expect to have to supply these things; people were supposed to have them already; and these people were not professional soldiers, with security clearances, government jobs or something like that. They were just regular citizens. Now, what if they tried to make some kind of law like, only people officially registered in the militia can have guns? This creates a tremendous enforcement burden and does not serve much purpose, because militia membership is supposed to be something that's extremely widespread and so guns would be all over the place. Such a rule would have run-up against another factor, which is that many people who might have been technically too old or too young, or even not eligible at any age because they were women, would still have other reasons that were perfectly reasonable for using guns -- like hunting and shooting pests around the farm. If you see a non-eligible person with a gun, it does not necessarily mean anything; maybe the gun is their dad's or their husband's or their son's; hard to say. It's not really sensible that someone in the same house, and sort of the same legal person due to coveture (the merging of a woman's legal personhood with that of her husband), could not use or put hands on the gun. Enforcing any provision like this would have been extremely tedious and involved, given that the militia relied on people storing and maintaining weapons in their homes. It would, I think, result in something that everyone familiar with the Anglo-American legal tradition, in those times and in ours, would recognize as government overreach. In fact, the situation was that people had arms for many purposes in England and the colonies, not just for militia purposes, and this was a social institution that went back to at least the 900s in England. The militia as an institution relied on the institution of private weapon ownership, but private weapons ownership was independent of the militia, and people treated weapons like any other article of private property -- they were free to modify them, sell them, and assign them in their wills. That's why we interpret the amendment the way that we do: in order to have a functioning militia, people need to have weapons and be familiar with them. The militia relied on a prevalent social institution of private weapon ownership: "the right of the people to keep and bear arms". The 2nd Amendment says, more or less, that obstructing private ownership of, commerce in and training with weapons would undermine the militia, and so such obstruction is prohibited.

AlgorithmicTime 5y ago

Well-regulate here means well armed. So, theoretically, this means that the right of the people to keep and bear arms should include all weapons useful to a militia. So machine guns, mines, grenades, rocket launchers, tanks, helicopters, etc.

pseudalopex 5y ago

The US Supreme Court held "The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms."[1] [1] https://www.law.cornell.edu/supct/html/07-290.ZO.html https://www.law.cornell.edu/supct/html/07-290.ZO.html

jvanderbot 5y ago
Perfect answer. Thanks!
beerandt 5y ago
Separately, "regulate" didn't mean the same thing then as it does today. Think about the phrase "well-regulated". When has modern regulation ever been described as "well"? And what would that even mean? The meaning was intended to be somewhere between well-supplied and well-prepared. Similar to how "regulate interstate commerce" was intended as to encourage and provide-for, not to limit or restrict.
- Throwawayaerlei 5y ago
  Well regulated as in a steam engine, which wasn't far on the horizon.
  - beerandt 5y ago
    I'd argue that's a result of the historic usage that has persisted, partly because it's compatible, but only in context. A steam regulator supplies steam from the boiler to the piston/traction, at the desired controlled rate. It does it via a restrictive valve, but even that's a stretch for it to be considered primarily a retarding device, and not an enabling/ accelerating one. We don't call a cars gas pedal a deccelerator or fuel-regulator, we call it the gas, or accelerator. The consistent usage is as a definition of supply.
    - throwawaylinux 5y ago
      Is this really the case, that regulated was equivalent to supplied in that context? I don't think it matters in the slightest for the purpose of the second amendment because the militia has no bearing on the power of the government to infringe the right of citizens to keep and bear arms, no matter how well restricted or well supplied it is. > We don't call a cars gas pedal a deccelerator or fuel-regulator, The pedal is not the mechanism, that is the throttle (aka fuel / air regulating device, it regulates flow by throttling it). There's people who call the gas peddle the throttle too, although less common. I don't think any of this proves a point about the word regulated in the constitution though.
      - beerandt 5y ago
        It's relevant because the 2nd amendment calls for the militia to be well-regulated, (not the arms themselves, or the people), and then goes further, specifically saying the right to bear arms shall not be infringed. And it does so by declaring the well-regulated militia being necessary. Reading it all consistently, it's consistent with "enabling" and "supplying". There are no other words that even suggest there being a limitation on any party except the federal government. All other rights in the first 10 amendments are granting rights to the people or states, and restricting the federal government, with any exceptions explicitly stated and conditioned. Reading "well-regulated" as an open ended grant of authority to the federal government is entirely inconsistent. Especially if that authority is contradicted in the second half of the statement. Reading "well-regulated" to mean "supply" and "enable" resolves all these inconsistencies and internal contradiction. If you can read it in a way that makes consistent sense, then that's the way it should be read.
majormajor 5y ago
A 5-4 decision in 2008 that was along predictable lines. Let's not pretend it's a long-settled or non-controversial interpretation.
- Throwawayaerlei 5y ago
  The two relevant decisions changed no facts on the ground outside of D.C. and Illinois. Reversal won't change anything except maybe the facts on the ground in Illinois, and will further inflame the divisions in the country. Although you should double check your assertions, some of the details of the decisions were not 5-4.
PhineasRex 5y ago
"I'm out of town this weekend, you can use my apartment" does not grant somebody unlimited permission to use your apartment. The supreme court is working backwards from their conclusion here.
- throwawaylinux 5y ago
  "Guns are good for hunting. All citizens have the right to own and use guns." does not mean only hunters have permission to have guns, nor that people may guns for hunting.
  - throwawaylinux 5y ago
    * nor that people may use guns only for hunting. And not even that people's right to own and use guns would be revoked if it turned out guns were not good for hunting.

throwawaylinux 5y ago

> Why does everyone quote "Shall not be infringed" but ignore "Well-regulated"? Because the former is pretty clear and unambiguous, and it is the part that actually describes the limitation of the power of the government. You can quibble over the meaning of well regulated militia and whether or not it is necessary for the security of a free state then or now, but that is clearly separate from the prohibition on infringement of the right to keep and bear arms. It does not state if a militia is necessary then people the right to bear arms. It does not state that people who are members of a militia have the right to keep and bear arms. It says all people have that right. Here's something to think about -- Why do people think hunting or personal protection have anything to do with the second amendment? EDIT: I'll give my answer to my own question, because it might be too ambiguous or obscure. It's actually not that I believe the second amendment has nothing to do with hunting or personal protection, actually the opposite. Those were such obvious things for people to use guns for that back then they did not even have to be listed. That obviousness is why those things still come up today in discussion about the second amendment despite being enumerated nowhere. It would have been utterly absurd when the document was written that people should not use their guns for hunting or self defense. Clearly statement about the militia in there had no intention of the restriction of the right to have and use guns. I also believe the security of a free state begins (and more or less ends) with the security of the free man so I think guns are a very important tool for self sufficiency, but that's another story.

solidsnack9000 5y ago

It's because there are well established ways to interpret "militia" and "the right of the people to keep and bear arms" that draw on institutions and approaches that had been in place for hundreds of years by the time the 2nd Amendment was written. We are not actually ignoring the "well-regulated" part. The amendment enables the militia, it doesn't define it. It is for other laws and institutions to actually sort out how militias work (the Militia Acts of the 1790s, groups like the https://www.missourimilitia.com https://www.missourimilitia.com and so on). You can't have a militia without private ownership of and relatively free and easy access to weapons. Today, we use "militia" to mean any unofficial group of armed people, but the common law militia was and is (it is still part of the laws of the USA, see 10 USC § 246) something more specific. The idea is that every potential lawful combatant -- every free man neither too old nor too young to fight -- could be summoned and they would supply their own weapon, clothing, and other supplies. The authorities did not expect to have to supply these things; people were supposed to have them already; and these people were not professional soldiers, with security clearances, government jobs or something like that. They were just regular citizens. Now, what if they tried to make some kind of law like, only people officially registered in the militia can have guns? This creates a tremendous enforcement burden and does not serve much purpose, because militia membership is supposed to be something that's extremely widespread and so guns would be all over the place. Such a rule would have run-up against another factor, which is that many people who might have been technically too old or too young, or even not eligible at any age because they were women, would still have other reasons that were perfectly reasonable for using guns -- like hunting and shooting pests around the farm. If you see a non-eligible person with a gun, it does not necessarily mean anything; maybe the gun is their dad's or their husband's or their son's; hard to say. It's not really sensible that someone in the same house, and sort of the same legal person due to coveture (the merging of a woman's legal personhood with that of her husband), could not use or put hands on the gun. Enforcing any provision like this would have been extremely tedious and involved, given that the militia relied on people storing and maintaining weapons in their homes. It would, I think, result in something that everyone familiar with the Anglo-American legal tradition, in those times and in ours, would recognize as government overreach. In fact, the situation was that people had arms for many purposes in England and the colonies, not just for militia purposes, and this was a social institution that went back to at least the 900s in England. The militia as an institution relied on the institution of private weapon ownership, but private weapons ownership was independent of the militia, and people treated weapons like any other article of private property -- they were free to modify them, sell them, and assign them in their wills. That's why we interpret the amendment the way that we do: in order to have a functioning militia, people need to have weapons and be familiar with them. The militia relied on a prevalent social institution of private weapon ownership: "the right of the people to keep and bear arms". The 2nd Amendment says, more or less, that obstructing private ownership of, commerce in and training with weapons would undermine the militia, and so such obstruction is prohibited.