Gun Nuts and Chilled Speech

When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with a handful of the world’s most prominent political activists, join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Okay, so now we’re all armed. Present company included. Great job, America. Now what?

The debate over gun control would be uproarious if it wasn’t so pitiful. In typical American fashion we have taken to the streets and airwaves in the aftermath of Sandy Hook to engage in an irrational debate that, once again, places misguided ideology over common sense and humanity. If we’re going to have this conversation, let us at least place the discussion within its proper historical context so we may raise a more troubling question:

Why bother taking the guns when you can indefinitely detain their owners? 

Lost in the emotion surrounding the debate over the Second Amendment is a far more insidious assault on the First Amendment. In no way am I diminishing the consternation over our right to bear arms as citizens; rather, I’m making a pragmatic case for a far more clear and present danger than the idea that federal agents will show up at our doorstep to commandeer our weapons. Before we get to this larger and more important point, let us dispense with the ridiculous.

Of course, we shouldn’t sell guns to crazy people, just like we don’t give a driver’s licenses to  blind people. Of course, citizens shouldn’t own military-style weapons with enough ammunition to wipe out a village. Newsflash: the government has neither the authority nor the desire to seize our guns. We hold the dual distinction of being the planet’s most armed nation and its biggest dealer of arms. What does this mean? The gun culture is here to stay because it’s profitable as hell.

And another thing: Stop yelling sanctimoniously about what the Founding Fathers would say. Find out what they did say. Media pundits insult our intelligence by twisting the meaning of the Constitution and the rationale behind it. So instead of arming yourself with high-capacity weapons, arm yourself with knowledge and learn about the Second Amendment from those who wrote it.

Founding Father Knows Best

During the two short years between the ratification of the Constitution and the introduction of the Bill of Rights, three of the greatest minds in America publicly explored the rationale behind the country’s founding document. A trio of intellectual giants writing interchangeably under the name Publius—Alexander Hamilton, John Jay and James Madison—produced a collection of essays now known as The Federalist Papers. They are essentially crib notes to the Constitution left behind by the Founding Fathers.

These are treasured breadcrumbs of reasoning that lead us to understand that the great military concerns of the day were whether or not to allow a standing army and how to prevent one state from acquiring military dominance over another. (The nascent nation could ill-afford Virginia to sack Rhode Island.) This dilemma was at the heart of the federalist argument for a centralized authority. At the same time, the Founding Fathers knew that the great balancing act of the day was in maintaining enough military force to defend against external foes while simultaneously preventing armed insurrections from within.

Publius reasoned that neither citizens nor tyrants should have the ability to circumvent our legal system, therefore arms and force should be evenly rationed but employed by a central government when necessary. (For the politically impaired, this is the part about a well-regulated militia.) The framers of the Constitution were dubious when it came to having full-time, professional soldiers. After all, these men were revolutionaries themselves who intimately understood the danger of uprisings. Moreover, America was also flat broke and could never have paid for a standing army. They did, however, believe Congress should have the ability to organize a militia when necessary.

It was Hamilton (as Publius) who offered the most succinct viewpoint on the military. “To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions on paper.”

To have an army or not? If so, how best to regulate it? This was the debate. The easiest way to raise a militia was to call upon the armed citizenry should the need arise. (This is the right to bear arms part.) More importantly, it was cheap. The ability to compensate servicemen would become one of Hamilton’s central arguments in favor of a national bank—a far more delicate subject at the time than the right to bear arms would ever be. 

It’s fair to say even the Founding Fathers could never have imagined modern warfare and the rise of the military industrial complex. Nor could they have imagined the destructive capability of assault weapons in the hands of citizens. This much is clear from their writings: the Founding Fathers would have punished any idiot who attempted to stockpile enough weapons to take on the government long before they tolerated government prohibition of speech.

On several occasions our founders saw fit to violently quell popular uprisings in order to preserve the central authority of the union. In this there was great philosophical unity among them. They argued more about banking than guns and cared more about protecting speech than organizing militias. It was John Adams who created a divide among them when, as president, he passed the Alien and Sedition Acts, jarring both Thomas Jefferson and James Madison out of retirement; not because they were fearful of his demagoguery with respect to force, but because these acts took away a more sacred right: free speech.

This brings us to the larger issue at hand.

Just as Jefferson and Madison recoiled at the behavior of Adams once in office, the great intellectual giants of our day have come together to challenge President Barack Obama’s authority. 

The man who released “The Pentagon Papers” and forever changed the way in which we view our involvement in Vietnam. The award-winning multilingual journalist who quit the New York Times because it was too tepid and conservative. America’s foremost dissident who has influenced generations of thinkers and helped shape liberal intellectualism. When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with some of the world’s foremost political activists such as Jennifer “Tangerine” Bolen – the organizing force of the plaintiff’s team – join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Such is the predicament Obama finds himself in today. The above group has brought suit against the government for infringing upon free speech as defined by the Constitution. Thus far, and thankfully, they are winning. Their lawsuit (which I refer to herein as the Hedges suit) not only challenges the government’s unconstitutional behavior, it casts a light on a dangerous trend in America and exposes a surprising secret weakness in the White House and the Justice Department.

Incarceration Nation

“There are now more people under ‘correctional supervision’ in America—more than six million—than were in the Gulag Archipelago under Stalin at its height.” —Adam Gopnik, The New Yorker, 2012.

The woeful mash-up of Conservatives, Libertarians, Tea Party loyalists and Democrats who wouldn’t know a liberal idea if the ghost of Gore Vidal whispered it to them, are so busy deconstructing America’s gun culture they have ignored a more alarming cultural trend: the culture of incarceration.

In addition to being the most armed nation in the world, America also has the greatest percentage of its population behind bars. While this trend has steadily risen over the past few decades, it has gained a level of acceptability in the post-9/11 era. Perhaps, this is why so few bristled at the passage of the provision the Hedges suit aims at. 

The plaintiffs in this suit have made the case in federal court that the Obama administration and Congress violated the First Amendment with the signing of the National Defense Authorization Act (NDAA) of 2012. The Act is a routine bill that organizes defense spending for the year and typically garners little attention from citizens and the media. But the 2012 Act contained a new provision authored in secret by Sen. John McCain—known as Section 1021—that was so alarming it prompted the above suit.

Essentially, Sec. 1021 expands the scope of existing law that allows the government to hunt terrorists in connection with 9/11 to include anyone seen as providing “substantial support” of terrorism. Ever. Anywhere. The provision offers vague language that attempts to couch it within existing statutes but its very existence is evidence that the government is seeking more expansive authority.

In September of 2001 the White House put forward several provisions that gave the government the power to prosecute those responsible for the terrorist attacks on 9/11. The joint resolution—the Authorization for Use of Military Force (AUMF)—passed Congress quickly and included nearly everything the Bush Administration requested. Everything, that is, except a provision that could have been interpreted as granting the government the ability to militarily detain U.S. citizens. This denial was subsequently upheld by the U.S. Supreme Court.

The Hedges suit argues that the broadness of Sec. 1021 and vagueness of the “substantial support” language endanger journalists and activists and theoretically expose U.S. citizens to indefinite military detention.

Katherine B. Forrest, district judge in the U.S. District Court Southern District of New York, presided over the opening salvo of the Hedges suit and delivered a resounding victory to the plaintiffs, and an injunction against enforcement of Sec. 1021, excoriating the government and its case in the process. In her decision she states, “The Government was unable to provide this Court with any assurance that plaintiffs’ activities…would not in fact subject plaintiffs to military detention.”

For its part, the government’s sole defense seemed to be inaction: If no one has yet been detained, then obviously there is no cause for alarm. Basically, their defense is that even though Sec. 1021 says that the government can punch you in the face if it doesn’t like your shirt, it hasn’t done it yet; therefore we must assume it won’t. Judge Forrest wasn’t buying it. Her decision examines various laws pertaining to what the government defines as criminal statutes related to terrorist activities of behavior in “material support” of such activities. In each case, laws are clearly designed to honor due process. She further argues that the plaintiffs are rightly concerned that Sec. 1021 falls outside the scope of constitutionality with respect to habeas corpus and is therefore not consistent with any legal precedent.

This is where it gets really, really interesting.

 Judge Forrest: “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly broad interpretation of the AUMF.”


President Obama doesn’t have a journalism problem. He’s not afraid of liberal scholars, protests, or homegrown terrorism on the rise because of access to Jihadist websites. Barack Obama has a Guantanamo problem.

Ah, Guantanamo. Hundreds of suspected terrorists or their affiliates have been brought here for questioning. Scores have been indefinitely detained. Recall then-candidate Obama’s assurance that Gitmo would be closed. Upon becoming president, it didn’t take long for the political reality to set in that the remaining prisoners weren’t coming ashore to stand trial anytime soon.

On the one hand, the government makes the case that Sec. 1021 is no different than existing authority granted under the AUMF. On the other hand, the government stands by the need for this provision to continue its mission to find and prosecute suspected terrorists, as though AUMF isn’t sufficient enough. Judge Forrest barely shields her disdain for this conflicting stance and rightfully concludes that “Section 1021 is, therefore, significantly different in scope and language from the AUMF.” She goes on to wag her finger at the attorneys for the government, saying, “Shifting positions are intolerable when indefinite military detention is the price that a person could have to pay for his/her, or law enforcement’s, erroneous judgment as to what may be covered.”

Back to Hedges et al. for a moment. Stymieing the government’s continued attempt to cover up potential war crimes at Guantanamo may have been an incredible, yet unintended consequence of the Hedges suit. Remember, the plaintiffs in the Hedges suit aren’t suing over Guantanamo. That’s a different fight. Rather, they take issue with the inherent danger of the language to citizens, activists and journalists. Nevertheless, Sec. 1021 is still on the books as the suit is pending appeal. And regardless of whether or not any U.S. citizen has been specifically detained as a result of its passage (and how would we know?) it must disappear.

For his part, President Obama issued a signing statement distancing his presidency from Sec. 1021. But actions speak louder than words and in many ways he has been far more active in assaulting civil liberties than President George W. Bush ever was. Whether through the wide use of drone strikes in Pakistan, Yemen and Somalia or numerous examples of prosecutorial overreach—most recently the tragic case of “hacktivist” Aaron Swartz—or the failure to speak out against the alphabet soup of dwindling liberties (SOPA, PIPA, FISA) Obama has given the public little evidence that he cares about this issue. Perhaps even more troubling is that his tenure as a constitutional law professor has been touted so often that one can only assume he understands the complexity of the issue but has chosen to ignore it, or worse take advantage of it. Bush was able to play the no-nonsense (you’re either with us or against us) cowboy card. Obama has chosen to play the steely intellectual card, and in doing so has created legitimate cause for alarm.

All of which brings us back to the gun debate. As much as I am sympathetic to the right to bear arms, I refuse to capitulate to the cheap argument that it includes the right to possess combat-style weaponry. Furthermore, I’ve grown weary of the ignorant protestations from right-wing figures who poison the words of the Founding Fathers and miss the bigger picture altogether.

The more we divorce ourselves from the notion of liberty, the more abstract it becomes; the more divisive our discourse, the more perilous our future. The vociferous gun debate obscures the very real, current and existing assault on our civil liberties. And know this: Were they alive today, not only would Hamilton, Jay and Madison have joined Ellsberg, Hedges and Chomsky as plaintiffs in this lawsuit, they would challenge every right-wing blogger, talk radio host and television pundit who twisted their words to a duel.

With a pistol, not an assault rifle.


Illustration: Jon Moreno

 This version has been updated from the original that appears in the February edition of the Long Island Press.


Author: Jed Morey

Jed Morey is the publisher of the Long Island Press, LI's Cultural Arts and Investigative News Journal. The Press has a monthly circulation of 100,000, and, welcomes more than 500,000 unique visitors every month. He serves on the board of the Holocaust Memorial and Tolerance Center in Nassau County, as well as the President's Council of Big Brothers and Big Sisters of Long Island. In addition to the contributions on this blog, Morey authors a column for the Long Island Press titled "Off The Reservation" and is a staunch advocate for Indian rights. The column was voted Best Column in New York by the NY Press Association in 2010 and third overall in the nation among alternative publications by the Association of Alternative Weeklies in 2012. Morey lives in Glen Cove with his wife, Eden White, and their two daughters.

21 thoughts on “Gun Nuts and Chilled Speech”

  1. Are you basing your use of “combat style” weapons on the manufactured term, “assault weapon” or the idea that if a weapon LOOKS scary, then it MUST be an “assault weapon” regardless of its mechanical capabilities?

    An assault rifle is one that is capable of firing multiple rounds with a single pull of the trigger. These have been illegal for the average American citizen to own for decades. They require a Class III Federal Firearms License, which are VERY difficult to obtain due to the costs and background checks necessary.

    A semi-automatic rifle fires ONE round for every trigger pull. These are the great majority of every firearm in America, be they pistols or long arms (rifles and shotguns.)

    Just because a semi-automatic rifle LOOKS like a military-issued weapon does NOT make it a military weapon. For example, my Ruger Mini-14. In its original condition, it had a wooden stock, much like every other hunting rifle. It fires a 5.56mm (.223 caliber) round, the same one the US Military uses in the M-16 and M-4. I replaced the wooden stock with a tan composite stock with a pistol grip and collapsible side-folding stock. It still fires one round per trigger pull. In its original condition, it is politically acceptable, but in its modified condition, it is somehow more sinister and therefore “politically unacceptable.” Its action has not changed. Its capabilities have not changed. Yet a technically incorrect made-up term is applied to it and it is maligned. WHY? Because there IS a nefarious effort by the current administration to disarm Americans.

    Why do you suppose there is now a huge effort to eradicate the Second Amendment to the Constitution, and in some circles (academia) a new effort to get rid of the US Constitution entirely?

    Americans have either forgotten, do not know, or refuse to admit that this country WAS brought forth because of the same firearms question we face today, as well as unacceptable taxes imposed by a faraway tyrranical central government, also a valid concern today. Yes there were other factors dating back to 1756 and the earlier French and Indian War, but firearms and taxes were the sparks for the American Revolution.

    Back to your article. Yes, the US Government has been incrementally chipping away at personal freedoms and the US Constitution little by little, as no one realizes the hole in their shoe until they step in a puddle of water and their foot gets wet. We definitely have a problem.

    The problem is an admitted Marxist with a cult of personality sitting in the White House, threatening to rule by fiat and Executive Orders. Worst of all, his followers love him for it, forgetting that almost every “cultural revolution” in recorded history has not ended well for either the “enemies of the state” or the original supporters, as many (Marxist)revolutions tend to eat their own after winning. But as long as people feel good and keep getting free stuff, the charade can continue. In the waning days of the Roman Empire, Caesar gave his subjects bread and circuses.

    It is long past time to re-read and re-learn our history.

  2. I agree with the depth of your piece Jaime. I do not any longer nor will I own guns again. I refuse to live in fear. But yes, the problem runs much deeper than just guns. It’s the atmosphere in which we live.

  3. Thank you Greg – but this was written by the one and only Jed Morey. It is indeed a deeply researched piece that goes beyond the surface rhetoric that has defined the debate so far.

  4. In my humble opinion, Mr. Morey’s more important thesis, the danger in Sec. 1021 granted under the National Defense Authorization Act of 2012, is such a critically important issue that he should write another article on this issue if he hasn’t already. Its importance is somewhat overshadowed by his lengthy discussion of Second Amendment issues devoted to the first half of his piece. Thank God he has brought further light to probably the most important issue facing US democracy. Thank God for Hedges et. al. for being being shepards watching over the flock!

  5. Matt, you might want to read Jed’s piece again, NO ONE is trying to disarm you. Technical debate agrument on the weapon you have misses the point. The 2nd amendment was never set up for people to be able to compete with the military. Weapons that can kill 26 people in a matter of minutes need to be reevaluated.

    Jed a well written, thought out piece. It’s scary how quickly things can disappear. And the louder people scream about guns the easier it is to slip things like this through. Hmm… Just like a magician would. W

  6. Jed, please explain how Section 1021 relates to the 2nd Amendment. I abhor Section 1021 and approve of the right to own assault weapons. Explain the inconsistency, if there is such an inconsistency.

  7. Cliff. Gladly. The larger point is that the debate over whether or not stricter gun laws infringes upon our 2nd amendment rights obscures the larger conversation regarding our personal liberty, which is far more dangerous and under attack -. i.e. 1021. To your point there is no DIRECT correlation between the two. But if we are going to argue vociferously against the lesser infringement, which is the extent of gun laws should be reasonably applied in today’s circumstances and not whether people have the right to bear arms, why aren’t we talking about the most significant encroachment on our rights as citizens? I drew the Founding Fathers into the narrative to illustrate the great misunderstanding people today have of their original intent, and how we should be careful trying to mold the wisdom of the FF into current ideological discussions. For every person out there who wants to literally interpret their words to mean that citizens should arm themselves to whatever degree they choose with total disregard for the safety and security of others and common sense is silly and smacks of fundamentalism.

    Gun owners have rights. But so do those who choose not to own guns. The FF would not have approved of military style weapons stockpiled by average citizens. They just wouldn’t. And to argue that they would is ignorant and disingenuous. But Libertarians (such as yourself) and conservatives choose to argue a fundamentalist reading of the 2nd Amendment while ignoring that the FF used brutal force to stamp out insurrections, did not trust the masses to their own devices and were entirely elitist in their governance. But if you choose to invoke literal interpretations then you cannot also ignore that they universally safeguarded free speech (thus the Adams anecdote.) So why not approach the 1st Amendment more vigorously? You can’t have it both ways. So that’s how they’re related. In the end, I chose to connect the issues to 1) highlight this inconsistency in libertarian and conservative logic, 2) set the record straight on the reasoning and intent behind the Constitution and Bill of Rights, and 3) wake people up who are busy arguing over how many clips your magazine holds and how many shots per second you can get off. The point I made in the beginning stands as the lesson: why take our guns when they can take their owner?

  8. Jed, let me simplify your argument. You claim that my right to own an automatic weapon somehow reduces or infringes on your “right” for “peace of mind”. This “right” to an emotion is preposterous and misguided. The Founders understood that in a free society which required limited Government, every citizen must have the right to defend themselves against all aggressors and assailants. The magnitude of the arms was dependent on the magnitude of the arms available to the aggressors or assailants. In the 18th century there were muskets and swords; in the 19th century there were single bolt revolvers and rifles; and today their are semi-automatic and automatic pistols and rifles. These are the common weapons of today and throughout the world. As far as the importance of rights, one right is not lessor than another. In a free society, one must have the right to speak and think freely and the right to defend themselves against an assailant. One right does not affect the other. Lastly, I do not understand your “lesson”: “Why take our guns when they can take the owner?” This statement is more cynical than philosophical. The Government that can take the “owner” without due process and on an accusation that is contrary to Liberty is a Government that is tyrannical. Similarly, the Government that can take away a weapon from the owner without cause or due process is tyrannical. I think you have inadvertently made the point that in a free country all citizens have the right to bear automatic weapons and to not be taken.

  9. Oh my. No one is taking our guns away, Cliff. But people have been militarily detained without due process.
    Back to the column.
    Those who argue against ANY regulations with respect to gun ownership invoke the Founding Fathers improperly. To be a fundamental constitutionalist, as you seem to be, is to recognize that the Founding Fathers would not have been in favor of citizens owning military-style weaponry. You can honor the second amendment without allowing a citizen to possess an arsenal bigger than a foreign dictator, Cliff.

    What the Founding Fathers did vehemently defend was the absolute, unfettered right to speech. Militarily detaining a US citizen for wittingly or unwittingly “supporting” terrorist organizations without due process breaks the First, Fifth and 14th Amendment. Clearly and absolutely.

    A government attempting to protect its citizens by curbing the flow of military style weaponry is not tyrannical.

    A government using the military to usurp our individual rights is tyrannical.

    If you’re going to be a strict fundamentalist then you can’t have it both ways. You cannot throw out the words and logic of the Founding Fathers to benefit your irrational position that anyone can own a rocket launcher.

  10. Wayne LaPierre will now have to weigh in on his contention, “Only a good guy with gun can stop a bad guy with a gun.” And he should watch his back (& front) at gun ranges.

  11. Jeb, are you aware that rifles of any sort account for 2.5% of all firearms homicides in the USA. Weapons with “military style features” are a sub-set of this number. Even if 1/2 of the 2.5% were “military style weapons” we are talking about targeting a type of firearm that is utilized in less than 1.5% of all firearms related killings.

    Why is no one addressing the reality, that a real effort to curb gun-violence, needs to start with the weapons that are actually being used to do the killing.

    I have to tell you, I find it a little ironic that you are saying in one breath, the government has said it is not coming for your guns and in another we can’t trust the government. There are several news clips of Sen. Fienstein saying that confiscation is an option on the table. Her current proposal would require gun owners to register with the government and surrender any “assault style weapons” on the owners death. Help me understand how this is not a sort of confiscation.

    It is wonderful the government is saying, by way of our “elected representatives” that it is not coming for the privately held weapons in this country. Sadly, the people doing the talking have proven themselves to be completely untrustworthy. If they were people we, the citizens could trust, we would not have things like the NDAA, kill list, drone war, persecution of government whistle blowers, warrantless wiretaps, Obama’s justice dept seeking to expand and make permanent the very parts of the patriot act Obama campaigned on doing away with. (Please excuse any typos 🙂

  12. I would like to thank everyone on all sides for opening up a great perspective. Your piece really points out the problem we face as Americans. The issues that matter most are always swept under the rug while the media tries to distract everyone with sensationalized stories,meanwhile everyone is debating each other using all the (in my opinion meaningless) political categorizations that further dilute meaningful discourse. I was not even aware of this lawsuit until today, and I am very glad it is being pursued (I love Noam Chomskys’ work!). I think you should consider the position of the people who are in the gun debate as well though. The media is using fear tactics to blur the lines between what guns really are, and as a commenter previously pointed out, is trying to ban guns that aren’t even used in mass shootings. It almost seems like a distraction… Personally I don’t even own a gun, but I like the idea of knowing that if I wanted or needed one I could buy one without being put on a list. I think one point that may be missed by people who may initially disagree with someone who holds a perspective such as Marks is that the government can, will, and has forcefully disarmed law abiding citizens in their own homes (look at the televised Katrina incident in which grandma Patricia Konie was bodyslammed by several police). More gun legislation (like most legislation these days) probably has nothing to do with actually curbing gun violence, but more to do with (using more taxpayer money) for tracking the people who do have guns and creating an “us vs them” mentality among the general public, as well as temporarily boosting stocks for companies related to arms dealers. The motive the Gov has is quite clear when one considers operations such as The Fast and The Furious, which resulted in the death of a U.S. border patrol agent. He was shot with a weapon the US knowingly sold to Mexican drug cartels without actually tracking. I don’t think it is too farfetched to believe that our government, at this point, wants to take any right it can get it’s hands on. If you notice, there are a lot of passionate people with different heritages and cultures who are particularly offended by several things the gov is doing. Personally I am angry about the illegal wiretapping facility (Utah Data Center) being built with our tax dollars to spy on us and the numerous attempt to regulate the internet. I think we need to all come together and try to spread the truth as much as possible. I know political debate gets pretty fierce but most people who are dissatisfied with the current government feel that way because they know something sacred is being wrongfully taken from us under false pretense. It is very inspiring to know that so many people are becoming passionate about these issues.

  13. Well regulated, militias & commas… Oh my!

    After much study and deliberation, I have created what I feel is an accurate translation of the second amendment into modern etymology.

    “To protect itself from tyranny or foreign invasion, citizens of sound mind and judgment have the inalienable right, without restriction or government interference, to own and carry at will, functional infantry weapons and supplies.”

    This not a redesign of the Second Amendment. It is my attempt to show the meaning of the words used and their meaning in modern terms. What is wrong on both sides of the aisle is the misapplication of modern meaning of the words actually used. In an effort to prevent that, my rendition attempts to take into account the period-accurate defining of their words.
    Again, this is from my personal endeavors, study it and decide for yourself. Furthermore, regardless of your position, you have my unconditional permission to pass this around for discussion.

    The commonly accepted modern definition of the word “regulated” in the english language as defined today is:
    1. to control or direct by a rule, principle, method, etc.

    2. to adjust to some standard or requirement, as amount, degree, etc.

    3. to adjust so as to ensure accuracy of operation: to regulate a watch.”

    However, in speaking of the word “regulated” as it pertains to it’s use in “well regulated” as it is written in the second amendment, it is necessary to understand it’s definition as used by Congress in 1791, which obviously, is when the amendment was signed into law.
    The Random House College Dictionary (1980) gives four definitions for the word “regulate,” which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:

    1) To control or direct by a rule, principle, method, etc.

    2) To adjust to some standard or requirement as for amount, degree, etc.

    3) To adjust so as to ensure accuracy of operation.

    4) To put in good order. [obsolete sense]
    b. Of troops: Properly disciplined. Obs. rare-1.

    1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.

    We can begin to deduce what well-regulated meant from Alexander Hamilton’s words in Federalist Paper No. 29:

    “The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. 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.”

    — The Federalist Papers, No. 29.

    Hamilton indicates a well-regulated militia is a state of preparedness obtained after rigorous and persistent training. Note the use of ‘disciplining’ which indicates discipline could be synonymous with “well-trained”.

    This quote from the Journals of the Continental Congress, 1774-1789 also conveys the meaning of well regulated:

    “Resolved , That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army.”

    — Saturday, December 13, 1777.

    In the passage that follows, do you think the U.S. government was concerned because the Creek Indians’ tribal regulations were superior to those of the Wabash or was it because they represented a better trained and disciplined fighting force?

    “That the strength of the Wabash Indians who were principally the object of the resolve of the 21st of July 1787, and the strength of the Creek Indians is very different. That the said Creeks are not only greatly superior in numbers but are more united, better regulated, and headed by a man whose talents appear to have fixed him in their confidence. That from the view of the object your Secretary has been able to take he conceives that the only effectual mode of acting against the said Creeks in case they should persist in their hostilities would be by making an invasion of their country with a powerful body of well regulated troops always ready to combat and able to defeat any combination of force the said Creeks could oppose and to destroy their towns and provisions.”

    — Saturday, December 13, 1777.

    “I am unacquainted with the extent of your works, and consequently ignorant of the number or men necessary to man them. If your present numbers should be insufficient for that purpose, I would then by all means advise your making up the deficiency out of the best regulated militia that can be got.”

    — George Washington (The Writings of George Washington, pp. 503-4, (G.P. Putnam & Sons, pub.)(1889))

    The above quote is clearly not a request for a militia with the best set of regulations. (For brevity the entire passage is not shown and this quote should not be construed to imply Washington favored militias, in fact he thought little of them, as the full passage indicates.)

    “But Dr Sir I am afraid it would blunt the keen edge they have at present which might be keept sharp for the Shawnese &c: I am convinced it would be Attended by considerable desertions. And perhaps raise a spirit of discontent not easily queld amongst the best regulated troops, but much more so amongst men unused to the yoak of military discipline.”

    — Letter from Colonel William Fleming to Col. Adam Stephen, Oct 8, 1774, pp. 237-8. (Documentary History of Dunmore’s War, 1774, Wisconsin historical society, pub. (1905))

    And finally, a late-17th century comparison between the behavior of a large collection of seahorses and well-regulated soldiers:

    “One of the Seamen that had formerly made a Greenland Voyage for Whale-Fishing, told us that in that country he had seen very great Troops of those Sea-Horses ranging upon Land, sometimes three or four hundred in a Troop: Their great desire, he says, is to roost themselves on Land in the Warm Sun; and Whilst they sleep, they apppoint one to stand Centinel, and watch a certain time; and when that time’s expir’d, another takes his place of Watching, and the first Centinel goes to sleep, &c. observing the strict Discipline, as a Body of Well-regulated Troops.”

    — (Letters written from New-England, A. D. 1686. P. 47, John Dutton (1867))

    The quoted passages support the idea that a well-regulated militia was synonymous with one that was thoroughly trained and disciplined, and as a result, well-functioning. That description fits most closely with the “to put in good order” definition previously discussed that was supplied by the Random House dictionary. The Oxford dictionary’s definition also appears to fit if one considers discipline in a military context to include or imply well-trained.

    What about the Amendment’s text itself?

    Considering the adjective “well” and the context of the militia clause, which is more likely to ensure the security of a free state? A militia governed by numerous laws (or the proper amount of regulation [depending on the meaning of “well”] ) or a well-disciplined and trained militia? This brief textual analysis also suggests “to put in good order” is the correct interpretation of well regulated, signifying a well disciplined, trained, and functioning militia.

    And finally, when regulated is used as an adjective, its meaning varies depending on the noun its modifying and of course the context. For example: well regulated liberty (properly controlled), regulated rifle (adjusted for accuracy), and regulated commerce (governed by regulations) all express a different meaning for regulated. This is by no means unusual, just as the word, bear, conveys a different meaning depending on the word it modifies: bearing arms, bearing fruit, or bearing gifts.

    Whew, that was long, I’m glad that’s over! But wait! What the use of commas in the second amendment!?

    There are several versions of the text of the Second Amendment, each has slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights. One version was passed by the Congress, while another is found in the copies distributed to the States and then ratified by them.

    As passed by Congress:

    As ratified by the some States and authenticated by Thomas Jefferson, Secretary of State:

    “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 original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archive, 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.”

    And finally, the second amendment with two additional commas, as signed into law by Congress on December 15th 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.”

    The difference made by addition or omission of the commas is quite significant. (The issue of the alternating capital letters “M” and “A” isn’t, but more on that later.) Simply put, once you put the commas back and apply the rules of punctuation to the second amendment, it completely resolves the “notoriously confusing” issue of private gun ownership rights as they pertain to the second amendment.

    Now, a word on commas. A comma is a
    “a punctuation mark, used especially as a mark of separation within the sentence.”

    There are at least 21 rules that govern the use of commas. However, only two of these rules can be applied to the sentence structure of the second amendment. Why these two? Simply because the other 19 rules can be eliminated as non-applicable.

    The first comma, and a dual-purpose second comma, separates the non-essential clause “being necessary to the security of a free State.” This is considered non-essential since the first statement, “A well regulated Militia,” is sufficiently identified. In other words, the separated non-essential clause could be eliminated without changing the meaning of the statement – it only supports, defines or explains the subject.

    The second comma, although lending support to separating the non-essential clause, has now become the dreaded “comma splice” that is used in place of the conjunction “and.” If not for the need of the comma to help separate the non-essential clause, the word “and” could have been used. How do we know that the second comma has the power of “and?” Simply remove the explanatory non-essential clause. What is left is this:

    A well regulated Militia, the right of the people to keep and bear Arms, shall not be infringed. After removing the non-essential clause it is easy to see that the remaining comma must have the power of “and” for no other word or interpretation would make sense. For example, “A well regulated Militia (of/or/but) the right of the people to keep and bear Arms, shall not be infringed,” is nonsensical. Yet, “A well regulated Militia and the right of the people to keep and bear Arms, shall not be infringed,” makes perfect grammatical sense.
    So, that’s pretty much all I have to say about the specific punctuation of the “notoriously confusing” second amendment.

    Now, lets examine the “controversial” wording in the second amendment, specifically: “well regulated” and “Milita”.

    “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.”

    Let’s get this straight right away. First of all, the concept of inalienable right of individuals to keep and bear arms as a check on a tyrannical governments predates our Declaration of Independence and our Constitution.
    Secondly, as was previously discussed, the term “well-regulated” meant something quite different two centuries ago. It is not today’s definition of “controlled,” “limited,” or “restricted” but was instead defined as “having proper provisions” or in the case of objects or machinery, “properly maintained and kept in good repair.”
    Next is the definition of the “militia,” and this too requires some context. Founder George Mason explicitly wished to have it clearly spelled out that “militia” was “of the whole people,” and if George Mason’s definition of “militia” is to remain internally consistent between the 2nd Amendment and the 1792 Militia Act, then the definition of “general militia” would necessarily exclude any “special militias”, which would be any of the “federalized” agencies such as State Department, Secret Service, CIA, FBI, DHS, BATFE, DEA, IRS, TSA, ICE, BLM, FEMA, Coast Guard, National Guard, Army, Army Reserves, Navy, Marines, Airforce, or any of the other many armed government agencies. These would all be considered by Mason to be “special militias”; which are to remain separate and legally distinct from the general “militia”. To this day courts are still regularly using this long forgotten but still relevant “general vs. special” militia distinction. Most recently, designating the National Guard as an integral component of the US Army Reserve system during the aftermath of Hurricane Katrina. This precisely illustrated the difference between the “special militias” of the state, and the “general militia” of citizens with privately procured and legally owned arms as expressed in the 2nd Amendment. This post-Katrina court decision regarding the National Guard also served to reaffirm the definition of “the people” as expressed in the Bill of Rights as meaning individual persons, not a group. So, even now, the state has its “militias” and the rest of us are our own “militia”, and these distinctions are still relevant. No wonder so many people can’t free themselves from the false notion of the “militia = the National Guard” equation.

    So there it is again, the individual right to keep and bear arms contained within and guaranteed by the definitions of “general militias” versus “special militias”.

    For more information on the 1792 Militia Act see:
    The Root Reforms and the National Guard
    In 1898 the National Guard was governed by the amended Militia Act of 1792 and almost completely funded, organized, and administered by state governments. The amount of funding and attention state governments gave to their militia

  14. @Jed Morey: I certainly agree with the premise that infringement of the RTKBA is neither the first nor the most important of government encroachments of the past few decades, but that does not mean that it is *unimportant*. While I have often exhorted 2nd Amendment advocates to see the larger picture and I do not understand at all a 2nd Amendment advocate who supports the post-9/11 security state, your criticism goes too far in the other direction: All of our inalienable rights are important and if infringement of the RTKBA wakes people up to the pervasive problems, then that’s great by me and I will make any use of that I may.

    To the point of “military weapons”, there was very clearly a parity between the capabilities of common infantry weapons at the time and those owned privately. Some private hunting arms (e.g. rifled muskets) were actually better than the smooth bore muskets in common issue to British troops (at least in particular aspects) at the outbreak of the Revolutionary War (want of powder in the Colonies was a big problem, however). Semiautomatic weapons in common use today just as clearly fall short of parity with either common infantry or police weapons and I therefore fail to envision the alleged outrage of the Founders at my run-of-the-mill handgun.

    The inalienable right and DUTY for citizens to keep and bear arms for the common defense goes back past the British Bill of Rights (1689), past the War of the Roses, to the Danelaw centuries before and is hardly dependent on the 2nd Amendment in any case.

    @Jeremy Goodman: Excellent post and great quotes.

  15. Thank you Eric, both for your kind words and your well-reasoned and perspicacious argument. Your statement about rifled unrifled-vs-rifled barrels alone deserves a serious time for examination and reflection.

  16. the federal government will kill us if we try to exercise our right to protest the taking of our rights. i guess you think we should all be victems in a modern world where criminals and our government are willing to use advanced weaponery on the citizenry. it bothers me that the gov. uses weapons to enforce tyrany with our taxed labor. your smart but you have been in new york too long.

  17. T. West: Thank you. The author thinks the First Amendment (words) can stand without the Second (teeth). But everything else he writes (and correctly) is standing proof that our government is a growing tyranny and that we may very well need guns to stop the trend that clearly will not stop itself! He works against himself in this matter. JWC

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