I happened upon
an essay written in 2008 by Terrell Prude, Jr., and he presents a very interesting interpretation of the "Well-regulated militia" clause of the Second Amendment.
I have always struggled with the language of this amendment, which to me is unnecessarily confusing. Supreme Court Justice Antonin Scalia, writing for the majority in
Heller and finding that the Second Amendment was an
individual right, and not the right of a group, or "militia", pointed out that every time a "right" was attributed to "the people", it was meant to be interpreted as an individual right, which makes the two parts of the amendment seem to be in conflict with one another.
Terrell Prude, Jr. offers the idea that the Framers were referring to the Army itself when they used the word "militia". In fact, in the earliest documented use of the word, Sir John Smythe in his
Certain Discourses Military (1590), used the word to mean "a military force". Therefore, this interpretation, at least linguistically, is not so far-fetched.
If we take the "militia" to refer to the U.S. Regimental Army controlled by the Commander in Chief, then the "well-regulated" clause also takes on whole new meaning. Instead of telling us that the "citizen militia" must be well-regulated, it seems to be telling us that the
Army itself must be "well-regulated". Based on this interpretation, what I am hearing is something akin to the following:
"Since an Army that ventures beyond the limits placed upon it by the Constitution threatens the Free State, the people must be allowed to keep and bear arms in order to act as a deterrent to a government who would turn against its own people."
If this interpretation is correct, why would the Framers have couched the Second Amendment in such obtuse language? I think that they did this for the same reason that the National Rifle Association uses all sorts of arguments in defense of the amendment, but rarely, if ever, do they refer to it as a "license to armed insurrection": because saying as much must have seemed as inflammatory and potentially treasonous then as it does in our day. So, perhaps the Framers were intentionally vague and wrote "well-regulated" when they meant "well-behaved" and "militia" when they meant the U.S. Army.
If this is true, then it is a shame since the Second Amendment is of critical importance in that it is the backstop to all the other rights we cherish, and the vagueness in the language has given entre to all those within and without the government who would like to see the people stripped of their right to "keep and bear arms". In any event, the operative clause of the Second Amendment, as Justice Scalia correctly pointed out, is "The Right of the People to keep and bear Arms shall not be infringed", and differing interpretations over the meaning of a "well-regulated militia" do not change that.