Texas-Book-Gun Law Armed And Educated - Flipbook - Page 14
A. What is a “well-regulated militia”?
As we discussed earlier, the first part of the Second Amendment
references a “well-regulated militia.” What is a well-regulated
militia? The U.S. Supreme Court has made rulings as to what this
phrase does and does not mean. In 1939, in the case of United
States v. Miller, 307 U.S. 174 (1939) (ironically, a ruling that
upheld federal firearms regulations), the Court defined a “militia”
as comprising “all males physically capable of acting in concert for
the common defense.” Based on how the Amendment was drafted,
the Court stated, it was clear that the militia predated Article I of
the Constitution, because unlike armies and navies, it did not have
to be created by Congress. What then is “well-regulated” per the
Court? It is exactly what it sounds like: the imposition of discipline
and training. So, is this just the National Guard? No.
In the case of D.C. v. Heller, 554 U.S. 570 (2008), the U.S. Supreme
Court stated that the well-regulated militia is not the state’s military
forces, but a separate entity altogether. The Supreme Court explained
that the word “militia” referred to the body of the people, and they—
the people—were required to keep a centralized government in check.
The Supreme Court considered and rejected the position that the
National Guard is the current militia under the Second Amendment.
B. How has the phrase “right to keep and bear arms” been
interpreted by the courts?
One of the first cases to directly deal with the Second Amendment
was United States v. Miller. In Miller, the Supreme Court found that
the National Firearms Act (“NFA”), which imposed registration
requirements on machine guns, short-barreled weapons, destructive
devices, and other similarly unique firearms, did not violate the
Second Amendment. The Court used the reasoning that possession
Brief Legal History Of The Right To Bear Arms And The Laws Regulating Firearms | 3
