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Originally Posted by Don Randall
Which does not in any way affect the meaning Fletcher attached to the term "well regulated militia"
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The reason I mentioned it is because at that time in the UK then there were little if any checks and balances or separation of powers to keep the King from being rather tyrannical. Fletcher was angry at the forced union of England and Scotland and so a lot of what he wrote (not just about the militia) was about trying to check that power. We did it with the Constitution. When Fletcher wrote that the miltia would be apart from the government he meant the crown and that the well-regulated militia (as I read it) be under local control (i.e. Barons) but they still answered to local authority.
BTW Don, if you will continue to read the source I gave you it will point you to US court cases and the other sources that define what is a well-regulated militia.
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Originally Posted by Don Randall
How does Hamilton assert that the "well regulated militia" is one and the same with the militias of the various states?...Since the states were authorized their militias in Article 1, Section 8, why would the framers of the 2nd amendment decide to do again, that which had already been done? Any defect or deficiency needing repair?
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Ok, I will try to answer these together.
First, There never was a federal militia. When the Constitution refers to the militia (including the Second Amendment) it is
always referring to the state militias there were no others. The
militia were state institutions created and governed entirely by written state/colonial law prior to the Constitution. The Constitution gave certain powers over the militia to the federal government, but otherwise the militia remained state institutions.
The federal power to create and raise an army is separate from the federal power over the militia. The Constitution authorizes the federal government to call up part or all of one or more
state militia units, train, arm and discipline them. This was unprecedented.
The Constitution specifies that the federal government can take control of the state militias for three purposes; to execute the laws of the Union [the federal government], to suppress insurrection, and to repel invasion. Again, unprecedented.
So, during the Constitutional Convention the Anti-Federalists led by folk like Thomas Jefferson and Patrick Henry were concerned that if the Congress was given so much power--particularly "to organize"--that if could form, if it wished, a select militia. Futhermore the antis feared that if the Congress could arm the militia they could then disarm it by neglect or overt action and they wanted the states to have a concurrent power to maintain and arm their militias. Therefore, the Second Amendment.