Newsgroups: misc.legal,talk.politics.guns
From: lvc@cbgbcs.cb.att.com (Larry Cipriani)
Subject: Re: Meaning of "Regulate"
Date: Mon, 2 Jan 1995 20:20:10 GMT

In article <scotdunD1B67n.2Dz@netcom.com>
scotdun@netcom.com (Scott Dunn) writes:
>
>"Regulate, as ordinarily used, means to subject to rules or restrictions, 
>to adjust by rule or method, to govern [...]"
>	Simkins v. State, 249 P. 168, 35 Okla. Cr. 143.


            On the original meaning of the 2nd Amendment
                    Henry E. Schaffer

"Whereas in all well regulated Governments, it is the indispensable duty
of every Legislature to consult the Happiness of a rising Generation,
and endeavour to fit them for an honorable Discharge of the Social
Duties of Life, by paying the strictest attention to their Education."

  These resounding words were the opening of a November 12, 1789 Act of
the North Carolina Legislature which was passed on December 11, 1789 and
which chartered the University of North Carolina.  Noting that this Act
was contemporaneous with the Bill of Rights (which was transmitted to the
state legislatures on September 25, 1789) and that the North Carolina
Legislature was active at that time, North Carolina being one of the
original 13 states, let us pay particular attention to the usage of the
words "well regulated" found both in this Act and in the 2nd Amendment
of the BoR. The use of "well regulated" in this act can shed some light
on the meaning of the 2nd Amendment.

  The 2nd Amendment reads: "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 debate between the collectivist and the individualist
interpretations of the 2nd has often focused on the meaning of "well
regulated" in the opening phrase "well regulated Militia".  The
collectivists claim this this refers to a Militia which is tightly
controlled by the government, deducing this from the etymology of
"regulated" which relates to "ruled".  However, this ignores the usage
of the word "regulate" in which the "rule" refers to the proper
operations of a device rather than to man-made laws.  We still see this
in the word "regular", which in many contexts means "properly operating."

  Let me give two examples of usage of the word "regulate" which have
been in existence for quite a long time and which have the same
"properly operating" interpretation.

1) Horology:  The adjustment of a portable timepiece so it will keep
time in the different positions in which it may be carried and kept (and
perhaps at the different temperatures which it may encounter.)  A
(mechanical) wrist-watch which has been so designed and adjusted is said
to be "regulated" and likely has this word stamped or engraved on its
back-plate.

2)Firearms:  The adjustment of a multi-barrel firearm (e.g., a double
barrelled shotgun) so that the barrels shoot to the same point-of-aim.
If such a gun (a double-barrelled shotgun or a three barreled "drilling")
fails to shoot properly, it is considered to be "out of regulation" and
needs to be "re-regulated".

  Both of these uses have meanings *related* to the "to rule" of
man-made laws, but are more in the nature of "to adjust to or to be in
a state of proper functioning".  So a "well regulated watch" or a "well
regulated double barreled shotgun" both would have meaning of "having
been put into properly functioning condition".

  From my reading of material from the colonial era, I have come to
understand that "well regulated militia" had a meaning at that time
(ca. 1789) in the nature of "a properly functioning militia" - which
would mean something along the lines of a properly trained and equipped
militia (since it was common at that time for militiamen to bring their
own firearms, with which they were already proficient.)

  The language of the NC Legislature in 1789 strengthens this
interpretation.  What can "well regulated Governments" mean other
than "properly functioning Governments"?  Surely it didn't and
couldn't refer to a government under the control of man-made laws, for
it is the government itself which makes these laws, and it would neither
be noble nor sensible for the Legislature to be proclaiming that it is
controlling itself.

  An additional contemporaneous document which exhibits the same
meaning is the Federalist Paper #29, in which Hamilton is discussing
the composition of the militia and says, "To oblige the great body of
the yeomanry, and of the other classes of the citizens, to be under
arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to_acquire_the_degree_of_
perfection_which_would_entitle_them_to_the_character_of_a_
well-regulated_militia, would be a real grievance to the people, and a
serious public inconvenience and loss." (emphasis added)

  Note that "well-regulated" clearly refers to how well the militia
functions and how well trained are the militia members.  It does not
refer at all to the degree to which the government controls the militia
or the members of the militia.

  This interpretation is also borne out by some old or obsolete
definitions in the Oxford English Dictionary.  "Regulated" has an
Obsolete definition (b) "Of troops: Properly disciplined" and then
"discipline" has a definition (3b) applying to the military, "Training
in the practice of arms and military evolutions; drill.  Formerly, more
widely: Training or skill in military affairs generally; military skill
and experience; the art of war."

  The "people" have the 2nd Amendment right, not the militia.  Today
many people make a large distinction between the two groups, perhaps
confusing "militia" and "Army".  The militia is more inclusive,
including the Armed Forces, the National Guard and the unorganized
component described in the U.S. Code as "The militia of the United
States consists of all able-bodied males at least 17 years of age and,
except [for felons], under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States..."
The age and gender restrictions might be challenged as discriminatory.
The historical basis for a more inclusive definition includes the U. S.
Supreme Court statement that "It is undoubtedly true that all citizens
capable of bearing arms constitute the reserved militia force or
reserve militia of the United States as well as the States; ..."  From
this we see that the mention of the militia does not conflict with the
individualist interpretation.

  Therefore I conclude that the meaning of the 2nd Amendment is, "A
properly functioning Militia is necessary to the security of a free
State; therefore the (pre-existing) right of the people to keep and bear
Arms shall not be infringed."

References:

Act of NC Legislature of Nov. 12, 1789 - Legislative Papers, H. of C.,
1789, AH.  Cited in A Documentary History of The University of North
Carolina 1776-1799  Compiled and Annotated by R. D. W. Connor  The
University of North Carolina Press 1953.  Volume 1, page 23.

Original Charter of the University, December 11, 1789, An Act to
Establish a University in this State.  N. C. Laws, 1789, S. R., XXV,
Chap. XX, 21-25.  Cited in Connor (1953) Volume 1, page 34.

Federalist Paper #29

Oxford English Dictionary, Second Edition, 1989.

United States Code, Title 10, Section 311(a)

Supreme Court, Presser v. Illinois  116 U.S. 252