CFLarsen said:
Just to clarify: I understand the word "regulated" as in:
1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning (regulate the industries of a country)
2 : to bring order, method, or uniformity to (regulate one's habits)
3 : to fix or adjust the time, amount, degree, or rate of (regulate the pressure of a tire)
There has to be some sort of regulating body - I cannot see how this can possibly apply to single citizens who are not in some sort of organization that is under regulation of some sort.
Claus, your approach is problematic simply because you're attempting to apply general, modern associations for the term "regulated" to specific historical context. This just isn't a concept that can be shoehorned, or offered up in a single-sentence, cookie-cutter answer as
Cleopatra requested. Please be patient, as this requires detail. Sorry for the length...
As
shanek correctly noted above:
Originally posted by shanek
Even if we were to take the word "regulate" in its more modern meaning, it's still the case that the Federal government is only limited to regulating the militia to the degree described in Article I Section 8 Clause 16.
To review,
Article I Section 8 describes the powers given to Congress, which in this case includes:
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Now, to add appropriate perspective --
US v Miller does a nice job of spelling out the important considerations of historical perspective while rendering judicial precedent (emphasis mine):
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Now, before proceeding, another brief review. The Second Amendment consists of two portions, the justification clause, and the rights clause.
Justification:
A well regulated Militia, being necessary to the security of a free State,
Rights:
the right of the people to keep and bear Arms, shall not be infringed.
Bearing this fresh in mind, let's review part of the
Emerson decision I've previously referenced:
We begin construing the Second Amendment by examining its text: "[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." U.S. Const. amend. II.
1. Substantive Guarantee
a. "People"
The states rights model requires the word "people" to be read as though it were "States" or "States respectively." This would also require a corresponding change in the balance of the text to something like "to provide for the militia to keep and bear arms." That is not only far removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power "To provide for . . . arming . . . the militia. . ."). For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia". The individual rights model, of course, does not require that any special or unique meaning be attributed to the word "people."
It gives the same meaning to the words "the people" as used in the Second Amendment phrase "the right of the people" as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.
[*I've hyperlinked the 1st and 4th for simplicity's sake.]
There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights."
(Moreover, the Constitution's text likewise recognizes not only the difference between the "militia" and "the people" but also between the "militia" which has not been "call[ed] forth" and "the militia, when in actual service."
As affirmed by this judicial precedent, the rights clause is
not dependent upon the justification clause in the Second Amendment. It's absolutely clear that the rights of the First and Fourth, respectively, free speech or protecting against unreasonable searches and seizures apply to the individual, and the court's decision goes on to display consistency with previously established precedent concerning "the people" in this regard.
Why is this important? Returning to the detail of the Militia Act which is currently part of federal law, which I will repost here to avoid thread-hopping:
10 U.S.C. § 311
Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and except as provided in
section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are --
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
The
unorganized militia, as has already been underscored, consists of the body of the people capable of bearing arms.
If Congress had to exercise its power to call up we able-bodied, arms-bearing civilians who are not a part of actual service (e.g. National Guard),
they have the ability, as per Art. 1, § 8, Cl. 16 to "regulate" us as they deemed necessary, to repel invasion, etc. Now, this has obviously not happened since the enactment of the currently standing Militia Act.
Based upon judicial precedent, offered with proper historical context, we have the right to keep and bear arms as individuals, and if we're called upon in response to Congressional action, we have the ability to use our arms to come to the nation's defense in whatever way necessary.
Hopefully this offers some necessary perspective, and again I apologize for the length here.
.