FAIRFAX, Va.—A gathering of top scholars among gun rights advocates meeting at the headquarters of the National Rifle Association yesterday remained divided and perplexed by the words “well regulated” in the Second Amendment to the U.S. Constitution.
“It’s a term that has always been a mystery to gun rights advocates, but I think we made considerable progress in nailing down what the Founding Fathers of the United States meant by it,” says Leonard Clounts, a constitutional scholar at Sam Houston University in Texas and chair of an NRA task force that’s been asked to forge a policy statement on the meaning of the term.
The text of the Second Amendment, as adopted and made part of the Constitution in 1791, reads as follows:
“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.”
“We get the part about the right to keep and bear arms,” says Peter Brooks, a professor of law at the University of Kentucky in Lexington. “That means any American citizen can own guns, semi-automatics, machine guns, even heavy armaments like bazookas and anti-aircraft missiles. You don’t need to be a legal scholar to see that. But ‘well regulated’ is certainly more nuanced, with differing interpretations any time the term comes up for discussion.”
Task force members, in their morning discussion yesterday, quickly rejected the idea that “well regulated” meant the government could impose rules on the ownership of guns, since gun ownership is conditioned on the need for a well regulated militia.
“What’s pretty clear is that the Founding Fathers had no intent in creating a militia in which the members of the militia had to meet any kind of litmus test,” said Arnold Peartman, a professor of law at Tennessee State University. “You have to remember, when the Constitution was written, state and local militias were all-voluntary. Of course, some men were well-trained in the use of arms, others weren’t. Some were responsible users of arms, others weren’t. Given this, ‘well regulated’ couldn’t mean that militias were subject to any controls.”
“Without a doubt, there was no desire among lawmakers to impose any rules on who could be in a militia or whether they had to meet any criteria to own a gun,” says Bill Talent, an NRA board member who sits on the task force. “Could someone who was known to drink to excess and shoot off his gun in the local tavern be put through any kind of test that would keep him out of the militia? Of course not. Nor would a man who was known to threaten violence whenever he was challenged be kept out of the militia. And since psychological disorders as we know them today didn’t exist back then, there was no reason to keep out ‘psychos’ and ‘schizoids,’ because they didn’t exist.”
Brooks, the University of Kentucky scholar, says “well regulated” likely means militia members could assemble as a group to intimidate people, including local or state officials, if they didn’t get their way. “That’s proven by Shays’ Rebellion,” said Brooks. “That was a mob put together by freedom lovers who didn’t like the austerity measures Massachusetts put into place to balance the state’s budget,” said Brooks. “The patriots thought the government should take on debt to help people out during a time of economic hardship, and when the state instead tried to pay down its debt and live within its means, the freedom lovers formed a mob, as envisioned by the Constitution.”
Talent says the unconditional nature of gun ownership, in which gun ownership is premised on the need for a volunteer militia to be well regulated, means the imposition of any rules on the militia is a violation of the Constitution. “Can you say, ‘You’re a criminal, therefore you can’t be in the militia, and therefore you’re subject to restrictions on owning a gun?’ Of course you can’t say that. Just because gun ownership is premised on the need for a well regulated militia doesn’t mean you can’t own a gun if you’re disqualified from being in the militia. You can clearly own a gun even if you can’t qualify for the militia.”
“Freedom-haters who say anyone who can’t qualify for the militia shouldn’t be allowed to own a gun are clearly trying to impose a socialist form of government on us,” says Clounts. “Even though gun ownership is premised on the need for a well regulated militia, it doesn’t follow from that that you can’t own a gun if you can’t qualify for the militia.”
Clounts said the scholars wrapped up the first day of discussion by agreeing that the term “well-regulated militia” as the premise for gun ownership meant anyone can own a gun regardless of whether they can qualify for the militia, because “well regulated” means anyone with a gun and is an American citizen can own a gun or multiple guns or even automatic weapons.
The task force is scheduled to host a final vote on the meaning of the term tomorrow, but Clounts says the hard work is behind them now. “We pretty much have a consensus, so tomorrow’s vote is really a formality. And then it goes to the board of the NRA to vote on our definition of the term. Then it’ll be clear what “well regulated” means in the context of in the Second Amendment.”
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