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The word 'regulated' as used in the Second Amendment did NOT refer to government regulation. In the vernacular of our founding fathers, it meant 'capable'...it meant 'able'...well-trained."
I've been going over this one for a while. Let me summarize what I have developed over several posts along with some new comments, because I think there is a misunderstanding of some of what I imply.
1. It does refer to government regulation because that right of regulation was established in
Article 1, Section 8 of the already-ratified constitution. The "right of regulation" given to the government was an established fact by the time the 2nd Amendment was passed in 1790.
2. The "right of regulation" given to the federal government is NOT a right to regulate
individual gun ownership. It is instead a right to regulate the militia, whose existence is "necessary to the security of a free state." And the distinction between these two rights is made evident by the comma that separates the two. I am almost ready to maintain that the comma in the 2nd Amendment between "free state" and "the right of the people" may be the most important punctuation mark in the entire Constitution.
3. The "right of regulation" given to the federal government over the militia in the 2nd Amendment does NOT imply that the term "militia" as used in common parlance among Americans of the 1790's refers to something other than the "able bodied citizenry." It refers to the fact that when brought together in the common defense, the federal government can regulate or "discipline" (to use the term in Article 1, Section 8) or "direct" (from Hamilton's writings in the
Federalist Papers) the militia. The principal desire of the founders here was not to
restrict the latitude of autonomous action of the militia in constituting itself (although they did restrict the
proportion of certain types of units, such as artillery, within the whole body of a regiment in the
Militia Act of 1792 [Section IV:
. . . not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry. . . ]), but rather to ensure "uniformity," which was the principal concern of the founders regarding the militia. To quote Hamilton from
Federalist #29 (paragraph 2, underline emphasis mine):
"
. . . This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. . . ."
You may note that Hamilton is speaking of the militia as a collective unit, not to the individuals who constitute it as a body, which reinforces what I wrote above about the 2nd Amendment NOT conferring upon the federal government the right to regulate individual arms ownership. And also that the term "regulation" implies "direction [by] the national authority," which does show that "regulation" means more than just efficiency, it refers to "direction," or management.
4. When the founders used the term "regulation" as it applied to government oversight or direction, they envisioned regulation by legislative action, not by regulatory agencies in the way in which we view government regulation today. The Militia Acts of 1792 and 1795 are examples of what the framers had in mind as the proper mode of "regulation." And I will add here that I have already stated in an earlier post that even though the National Firearms Act establishes the
fact of federal government regulation of individual arms ownership, that those who argue that this goes beyond the intent of the framers have a logical case to put forth for the reason I give in this point.
5. If the word "regulated" in the 2nd Amendment referred ONLY to efficiency, then the adjective
well placed immediately before it becomes redundant. But as I stated above "regulation" in the intent of the framers referred to "disciplining" (Art. 1, Sec. 8) or "direction" (Federalist #29), which means much more than "efficiency." It is the insertion of the adjective to modify the term as "
well regulated" that changes its meaning from simply "disciplined" or "directed" to "efficiently disciplined" or "efficiently directed."
5. If the word "regulated" in the 2nd Amendment referred ONLY to efficiency, then the adjective well placed immediately before it becomes redundant. But as I stated above "regulation" in the intent of the framers referred to "disciplining" (Art. 1, Sec. 8) or "direction" (Federalist #29), which means much more than "efficiency." It is the insertion of the adjective to modify the term as "well regulated" that changes its meaning from simply "disciplined" or "directed" to "efficiently disciplined" or "efficiently directed." Nice try, but try looking up other common uses of "well regulated" more or less contemporaneous with the passage of the second amendment. It was a "term of art", used in may contexts to mean "properly functioning" or "fit for its intended purpose". The two words together meant more than the sum of their parts. Even today the phrase doesn't mean Controlled by government Check out this Abstract of a Scientific paper which says in part:
Interpretive Summary: It has been known for years that lipid stores are well regulated. Recently a new hormone termed leptin, which is secreted by liver and fat tissue has been identified in birds. It is known that leptin is involved in appetite regulation as well as energy metabolism in mammals. When administered into the brain of mammals, food intake is inhibited. Whether similar functions can be attributed to leptin in poultry is unknown. The study reported herein investigated the effect of centrally administered leptin on food and water intake in meat-type and egg-laying chickens. It was observed that leptin injected in a dose-dependent manner inhibited feed intake in both types of chickens. This effect was specific for food as water intake was unaffected. The results of this study strongly support the hypothesis that leptin is an important integrator of appetite in birds. The results are of interest to other scientists.
Somehow I don't think that any government rules or laws are affecting the lipid stores of chickens.
Or This one Which states in part
Some of us are blessed with a well regulated appetite and the ability to balance our energy intake and expenditure
Substitute your definition of well regulated, that is restricted by rules, and the "properly functioning" definition, for "well regulated" and see which sort of militia you'd want to trust your security to, one hemmed in by rules designed to lesson it's capability as a miltary force, or "properly functioning" one. I think the answer is obvious.
Art. 1 section 8 does not speak of regulating the militia, but rather "To provide for organizing, arming, and disciplining, the Militia" Organizing meant setting the size of units, how many of each type, and so forth. Disciplining did not mean punishing, but rather providing common drills and procedures, what we would call standards today. Arming of course is obvious. But note the Congress wasn't given a mandate to arm the millita, but only to provide for that arming. In the event they did so by passing laws stating what sorts of arms the militia should/must have, not what the members could have.
The other part of section 8 makes the part about disciplining somewhat more clear "reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;?
The "right of regulation" given to the federal government Governments do not have rights, only powers. Search the constitution for "right" or "rights", see if they are ever said to belong to a branch of government. The ninth and tenth amendments are good examples:
[Amendment IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
[Amendment X]
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.
(People can have powers as well as rights, governments only powers.)