A virtual cottage industry has emerged among people finding James Talarico clips espousing everything from declaring his campaign meat-free to there being six genders to God being non-binary. One recently uncovered video from a meet-and-greet, however, attracted my interest and deepened my concerns about Talarico. It shows Talarico explaining why sweeping gun control laws do not violate the Second Amendment. The reason, he declared, is that the Second Amendment expressly embraces gun controls by referring to the right as “well regulated.”
In the clip, Talarico mocks those opposing gun control measures and bans as not taking the time to actually read the Amendment:
“A lot of politicians like to talk about the Second Amendment. Very few have actually read the Second Amendment, because, if they did, they would know that the words ‘well regulated’ are right there in the text of the amendment itself.”
What he omits is the word following “well regulated”: “militia.”
It is hardly a long read, so here is the language:
“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 term “well regulated” was not a reference to regulation in the contemporary sense. It was used to mean orderly or well-maintained. Militias were considered the backbone of the American military, particularly by those who feared a standing army. Some militias were less capable than others in the Revolutionary War. A well-regulated militia meant state militias that were combat-ready.
The individual right to possess guns was viewed as central to maintaining such militias. However, the Supreme Court has repeatedly held that a “well regulated militia” was not a limitation but a justification for the individual right.
Notably, Talarico’s rationale is different from the classic interpretation against reading the Second Amendment as an individual right. Under that construct, it is the word “militia” that conditions the rest of the amendment, stating the purpose of the right to possess firearms. It is not that the militias are “well regulated,” but rather that possessing guns was protected in order to (and to the extent of) maintaining militias.
Many of us reject that view and believe that the drafters were protecting a long-held and cherished individual right. The reference to the militia was to a common rationale or justification for protecting that individual right.
Talarico made the comments in support of a ban on certain commonly used guns such as an AR-15. Notably, those bans will soon be before the Supreme Court after the justices accepted review in Viramontes v. Cook County and Grant v. Higgins.
The grant of certiorari follows the Court striking down Hawaii’s “Vampire Law” in Wolford v. Lopez, which barred gun owners with concealed-carry licenses from bringing guns onto private property unless they had explicit permission from the owner. That decision again reaffirms the individual right under the Second Amendment and clearly does not embrace Talarico’s “well regulated” rationale for gun control.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
This column also ran on Fox.com
Even if you steelman his argument and accept that the purpose of the right to bear arms is primarily, or even solely, to support the formation of militias, his argument in favor of banning AR-15 and similar is completely fallacious. Consider: If you were forming a militia today, Red Dawn-style, what weapons would be ideal for them to be equipped with? It would be assault rifles, the modern version of the Brown Bess.
The militia interpretation would allow for the banning of handguns, but outright REQUIRE the legalization of assault rifles.
This comment from a retired 30 yr navy vet and retired ~20 yr police officer: (1) regarding the relation between the 1st and 2nd Amendments, one of my instructional comments to a reluctant subject was: how much pain do you want to feel before doing what I asked you nicely to do? (2) I assure you, both military and police treat encounters with armed entities with much more respect than unarmed. V/R J. C. Tate, CDR USN (Ret), CAPT NMMP (Ret)
Sure love the fact that a Wolford brought that suit as that is my last name. Never corner a wolf.
“Many of us reject that view and believe that the drafters were protecting a long-held and cherished individual right. The reference to the militia was to a common rationale or justification for protecting that individual right.”
If it was intended to be an individual right then the mention of militias was superfluous. Where else were the framers prone to adding superfluous verbiage to the Constitution? They could have said for defense of self and of the nation. That would have been the individual right and covered the common defense. They left out the individual right for a reason. They certainly did not intend that slaves had a right to guns.
The framers were not stupid people, though those who respond with detraction to this comment surely are.
They wanted to have only some people with guns at the ready so that the US would not have a standing army that could be turned by a vicious leader against the people. Well, hate to break it to Turley, the US has a standing army and the technology to end any civilian rebellion in a matter of minutes or hours if they chose to do so.
On the other hand, if it was to support a civilian military and be an individual right why aren’t there cases made for the ownership of RPGs and hand grenades and howitzers and surface to air missiles. Why are there licenses for any aspect of sales or manufacture – aren’t those infringements? Musk now owns a company that can make ICBMs. Should he not also have access to a nuclear warhead? (Tangentially, his DOGE effort has been linked to the deaths of 700,000 people, so he’s already on a roll with mass death.)
Well regulated is just part of a description. The main part of this law comes after, which is, “the right to keep and bear shall not be infringed”
Who are “the people” in the second Amendment? The right of “the people” to keep and bear arms shall not be infringed. Are they the same people mentioned in the 1st, 4th, 9th, 10th and 17th Amendments? The Constitution and it’s Amendments are restrictions on the government, not on “the people”.
So, may I assume that you believe that only militias should be armed and thus you support armed militias?
Well Anonymous, I think you have it wrong. The Second Amendment refers to armed individuals, since these were the citizens that comprised the militia. Thus, no armed citizens then no militia, and no defense for our nation!
As for citizens not having “RPGs and hand grenades and howitzers and surface to air missiles,” I think you would be better off not asking for these expensive, complicated and dangerous items.
All these differing opinions would have been laughable to our founding fathers. They knew that gun ownership was basic survival.
Also note that we use the term “regulate” to mean something entirely different from its meaning in the Constitution. In the Constitution, it means “to make regular.” With regard to commerce (in the Commerce Clause), it means to “make interstate commerce regular” by making uniform laws to promote interstate commerce. This is quite different to how the clause is interpreted (wrongly) today. Today it is used to control, manipulate, throttle, and sometime to prevent (in certain articles of trade, such as some types of firearms) interstate commerce. In the Second Amendment, the word refers to the militia, and it means that militias should be made regular – equipped, trained, and maintained to a standard (necessary to make it effective).
The thing that bugs me about all the arguments based on the founding fathers intent is that none of the bill of rights were intended to create absolute rights. The bill of rights was created as a restriction on federal power, not state power. The founders intended for the federal government to stay out of the topics covered in the bill of rights. It wasn’t until the 14th amended in 1868 that the bill of rights was arguably applicable to states. If you had asked a founding father if a person should be allowed to own a gun, the most likely answer would have been it is a matter left to the wisdom of the states, where the true heart of our great nation beats. Can both sides please stop using people that didn’t even think about the world like we do to bolster their personal beliefs.
Methinks that our Constitution will have to endure intense revisionism in the not so distant future. 🙁 Good luck to all!
I like what the virginia constitution states:
“That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
As a Texas resident, I just wish my fellow Texans would have had better sense than to nominate Paxton. He lost in the original primary but won in the run-off. Paxton is a hypocrite and accused adulterer. Talarico and Texas Democrats are having a field day with him. Whether or not Democrats will pull it off will only be known in November, but Cornyn would have had a much better chance of beating Talarico.
He beats this nut
Literally retarded. TalaFreako has zero chance to win
Idiot, Cornyn is a RINO traitor and has been for years. $130 million waisted to get destroyed in the primary. Paxton is a patriot who has fought the deep state more than any in the DOJ. I wish I lived in Texas just to vote for him. However, I live in the free state of Florida and will never leave.
In terms of context, I would urge commenters to read The Bill of Rights (1689). England’s Catholic ruler had stripped Protestants of the right to arms, and TBOE restored it. Without any references to militia service.
“That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;”
As. allowed. by. law.
The subjects, for their defense. Not for the security of a free state.
It seems like two different approaches. One for the defense of the state, uninfringed, and one for individual defense, subject to laws.
So, sure, the Army has a right to guns. And The Bill of Rights (1689) says the right to guns can be infringed by law.
I would also point out the words “necessary to the security of a free state” = maintaining freedom. i.e. “securing a free existence.”
Thank you professor for pointing out the facts. We need the 2ndA today just as much as we did when the Constitution was written. IIRC, OldManFromKS pointed out the 80 year crisis cycles and that we are due for one.
“Jonathan Turley and modern gun-rights advocates frequently assert that the Second Amendment was originally intended to protect an individual’s right to private gun ownership. However, a closer look at *the historical* . . .” (emphasis added)
During the Left’s fanciful romp through the Revolutionary era history, it always ignores this salient fact:
England imposed massive gun controls on *individual* Colonists. It banned the sale of ammunition and guns to *individual* Colonists. Then, among other confiscatory measures, it move to seize the guns of those *individuals*.
That British gun control over an *individual’s* right to bear arms was a major impetus for the Revolution, and for the inclusion of 2A.
And that is why the Second Amendment uses the word “individual” instead of militia. It’s there for all to read.
Individual ownership of guns, being necessary to the security of a free State, the right of individuals to keep and bear Guns, shall not be infringed.
If it was Arms, one could buy hand grenades and RPGs and landmines at the Arms store. So they miswrote it instead of Guns, which they clearly meant as that’s the only Arms that are important in these discussions.
Problem is you think democrats like Talarico, platner are rational. They aren’t!
The backers of the democrats seek to destroy the west! They are the MAO culutural revolution branch of thinking!
Use irrationality to DESTROY society to gain power!
Democrats are fighting a CIVIL WAR!
What is next, declaring Kamala as a Democrat thought leader?
They are vacuous people…given a position of power…for others to control them! AOC, Obama, Zohran, on and on
Shay’s Rebellion was not considered to be primarily an unregulated militia composed of veterans of the War of Independence … while the Whiskey Rebellion joined it in establishing merely the need for federal power to take control of state militias in order to suppress rebellions. The distinction between “regulated” and “unregulated” was not the linchpin of defense of an individual’s right to bear arms.
The issue was always recognition of the federal power to suppress rebellions alongside the prohibition on any federal infringement of the individual right, while firmly entrenching the idea of a federal standing army barred from infringing on that personal right even while in the act of suppressing state-level rebellions.
Originalism and textualism may someday determine that even the partial incorporation of the 2d Amendment under the 14th was not fully instructive regarding the states’ power to infringe on the individual right in pursuit of their legitimate police powers. Heller and MacDonald seem to have left a chink in response to the major question even broader than the one that Roberts opened last week in Barbara.
Many ppl are confused about “well-regulated” It has notbing to do with the modern administrative state. Reading contemporary citations on gutenberg.org reveals that “Well-regulated” means to function according to expectations. Well-regulated kitchens produced tasty and nutritious meals on schedule, well-regulated households were tidy and well-scrubbed, with clean clothes on schedule, etc.
Further, Henry James wrote of a well-regulated young woman, while Anna Leonowens wrote of her well-regulated, smutty faced young son
A particularly accurate clock was known as a “Regulator”. It was the kind seen in places like train stations where accurate timekeeping was essential.
Yet the Constitution does not provide for ensuring even that condition will apply to the militia. So that interpretation is, “A few well meaning people will have guns and that allows a multitude of criminals to have unlimited access to guns as well.”