The Well-Regulated Militia Act
A modest proposal
by Nathaniel Hellerstein
I propose the following as legislation before Congress. I call it the Well-Regulated Militia Act, and it goes as follows:
1. The right of the people to keep and bear arms in a well-regulated militia shall not be infringed.
2. Well-regulated militias shall not arm those under adult age, nor arm those found guilty of treason as defined by the Constitution.
3. States have the right to enforce additional regulation of their militias.
Compare and contrast sentence 1 of the Well-Regulated Militia Act with the original 2nd Amendment:
“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.”
Alas, poor Amendment! The sentence lies there, broken into four fragments, as if someone had dropped it on the floor. My critique of the 2nd Amendment is both literary and political; for its shattered incoherence is due to an unresolved political dispute. Washington insisted on good regulation of Jefferson’s popular militias; his objection was jammed on as a subordinate clause given top billing.
Sentence 1 of the Well-Regulated Militia Act fixes the grammar of the 2nd Amendment. It’s a single coherent clause; that prevents partisans from exaggerating one clause and ignoring another. The original had well-regulation as an explanation for the need for the right to bear arms; here well-regulation is part of the right itself. This makes explicit the necessary link between rights (arms) and responsibilities (well-regulated). Sentence 1 is as much about gun control as about gun rights.
This re-emphasis on regulation empowers sentence 2. No children in arms, nor traitors; that’s necessary. If the militia is well-regulated, then it may not arm children or adolescents, who are not well-regulated people; and if the militia is of the state, then it may not arm those levying war upon the states. I choose these two regulations for the sake of clarity. Age is a matter of public record; and treason is defined in the Constitution. (Article 3, section 3.)
Sentence 3 establishes that the militias belong to the states, which they may regulate as they see fit, as a matter of state’s rights.
This proposal is very conservative - in the non-Orwellian sense of the word ‘conservative’. It makes few changes in the original text, beyond rewriting it for clarity. This rewriting explicitly mandates both gun rights and gun control. Such rewriting is necessary because of the 2nd Amendment’s fragmented condition.
Since the 70s, we have been living with a partial interpretation of the shattered 2nd Amendment, one that ignores the first two fragments and fetishizes the next two. So for over forty years the 2nd Amendment has been half-repealed, to malign effect now self-evident.
I say that we repair it, and reinstate it, whole.