A thought on the common topic of general militia usage

[Hugh Damright]

I can't imagine a militia directed by government would then oppose that government if it presumes to subjugate the citizens and oppress or enslave them. Can you?

I can, and I think that was the general idea ... a standing army is a select force which can turn or be turned against the people and so it is a threat to their ability to freely govern themselves ... but a militia composed of the body of people is inseparable from the people and in any conflict between the people and their government the militia would inevitably be the people's militia. It is only the government's militia as long as it is the people's government.

"To prevent the executive power from being able to oppress, says baron Montesquieu, it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people." (--Blackstone, Commentaries on the Laws of England (1765))

Why guard against making a military power distinct from the people unless to ensure that it ultimately sides with the people?

[BlueTrain]

Some revolutions have succeeded due to most of the armed forces siding with the rebellion. This is going beyond the question of this topic but it suggests that general conscription would be a good idea if it reflects the people generally, which is a big if.

[Tennessee Gentleman]

Originally Posted by Hugh Damright

I can, and I think that was the general idea

Yes it was..for the State's Militias.

Originally Posted by Hugh Damright

a standing army is a select force which can turn or be turned against the people and so it is a threat to their ability to freely govern themselves

And that is why it was so important for the states to be able to arm and control their militias hence the 2A and the concessions in Article One to allow the sates to appoint their officers. The idea was that the bulk of our National Defense would rest with the state militias and so a standing army would be by design smaller and therefore unable to stand against the states if a tyrant controlled the standing army.

Hugh, ever wonder why the BOR did not originally apply to the states? I see your debating in another thread about the McDonald case and you then must know that the Founding Fathers thought quite differently about state power and rights than we do today. We are much more federalized today and the FFs didn't foresee that IMO. That is another argument but the state militia THEN was the military bulwark against tryanny. The state militia WAS the people's militia THEN. That militia became the NG but states may still under the 2A raise and equip a miltia if they so choose, but I doubt we will ever see it.

[zukiphile]

I can, and I think that was the general idea ... a standing army is a select force which can turn or be turned against the people and so it is a threat to their ability to freely govern themselves ... but a militia composed of the body of people is inseparable from the people and in any conflict between the people and their government the militia would inevitably be the people's militia.

I believe the first two words of your response condradict the rest of your response.

If I understand the remainder of your point correctly, it is that a militia directed by the government could oppose that government, but only if it is no longer directed by it.

I think it is an implausible reading of the second amendment that has the drafters of the COTUS contemplating mutiny of government controlled armed forces as the means of securing a free state. That reading would be at odds with their anxieties about a standing army.

[Al Norris]

Originally Posted by Tennessee Gentleman

The issue we are discussing is not the private ownership of guns but the militia.

The peoples individual right to keep and bear arms only seems tangential. However, without that right, there is no militia.

The Constitution gives the Congress plenary power over the militia: To call forth (both the organized and the unorganized - the draft); To organize; To arm; to discipline; To train in accordance with Congressional directives. The only thing reserved to the States was the appointment of the officers of the militia (a State power no longer recognized - without the consent of Congress - I might add).

Amongst those powers, is also the power to do nothing whatsoever.

That was the problem over the militias that the anti-federalists objected to. If the Congress refused to arm the militias, or the Congress passed a law to disarm the militias, that was well within the powers granted by the Constitution.

The Second Amendment was the answer. If the people could not be disarmed, the militia could be preserved. So just who were the militia? We all know the answer: They were every man (and many times, every boy) capable of defending hearth and home. "Well Regulated" did not mean trained to military discipline.

Towards the end of the 19th century and progressing into the 20th century, through direct application of Federal legislation (and with the consent and neglect of the States), the militia became a select militia and was wholly subsumed into the Federal system.

The National Guard of today is that select militia and is only on "loan" to the States, it is not the "militia" that we are discussing.

From the Merits brief by Chicago, pg. 35 (pg. 60 of the pdf):

The congressional debate surrounding Madison’s proposal for the Second Amendment tends to confirm that conclusion. If the Second Amendment right were thought essential to protect a non-militia-related personal liberty from governmental intrusion and from the political process, some trace of that belief would likely have surfaced. But nothing in the congressional debate over Madison’s proposal for the Second Amendment suggests any view that a private arms right unconnected to preservation of the militia was essential. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 169-76, 185-91 (Cogan ed. 1997); Jack Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 127-28 (2000). *20


*20 The Framers may have thought that service in the militia and participation in defense of the country was itself an important personal right that they valued highly, apart from the “individual right to possess and carry weapons in case of confrontation.” Heller, 128 S. Ct. at 2797. As Heller notes, however, “modern developments have limited the degree of fit between the prefatory clause [recognizing the need to maintain the militia] and the protected right.” Id. at 2817. Few would maintain that a right to participate in the national defense in the way that the Second Amendment protects — as a member of the unorganized militia possessing small arms in common use — is implicit in ordered liberty or essential to a present-day free society.

That last part that is in footnote 20, is the sum total of the reasons that the unorganized militia has no purpose or use in todays society.

[Hugh Damright]

If I understand the remainder of your point correctly, it is that a militia directed by the government could oppose that government, but only if it is no longer directed by it.

I mean to say that a militia directed by government may choose not to follow those directions if they go against the sentiment of the people, because the militia is intended to be inseparable from the people.

I think it is an implausible reading of the second amendment that has the drafters of the COTUS contemplating mutiny of government controlled armed forces as the means of securing a free state. That reading would be at odds with their anxieties about a standing army.

Not at all ... the anxiety about a standing army was that it is a threat to free government, that it is a select force that might turn or be turned against the people ... whereas a militia composed of the body of people ensures that the body of people remain the final authority or sovereign and that secures a free State ... I don't see how their fear of a standing army and military rule meant they also feared militia which was inseparable from the people. They feared military rule, not free government.

[BlueTrain]

Sounds good in theory. But what if said militia, composed not of "all the people" but of "enough" (someone has to stay home and operate the country in the absence of the militia), were loyal to someone, perish the thought, who had ideas of their own, and there are many who do. Sort of a latter day Aaron Burr.

Part of the problem here that is being ignored is that the people are not all of one mind, always a thorny problem. But military rule per se is not the real term since the Soviet Union and China both have civilian government.

Also, if the government provides the arms, it can still be a militia. Even the Boers had government issued rifles.

[Tennessee Gentleman]

Originally Posted by Antipitas

The peoples individual right to keep and bear arms only seems tangential. However, without that right, there is no militia.

Al, this is the crux and irony of the argument. Both the hard core pro and anti gunners want the militia to be tied to the right to keep and bear arms. Of course, they want it for different reasons.

The antis want it tied to the militia because they know the militia is dead and unlikely to be revived and so they may pass any and every type of gun control legislation they wanted all the while saying "Your right to own that shotgun is tied to your service in the miltia and when we decide to call it up you can have your gun!"

The pros want the militia tied in so they can claim a right to own any and every type of military weapon they could afford without restriction.

To this I say: Thank God for Heller who correctly separated the two. Now I can own a weapon in common use for civilian self defense, we can restrict military weapons unsuitable for civilian self defense and all is in balance IMO.

Originally Posted by Antipitas

That was the problem over the militias that the anti-federalists objected to. If the Congress refused to arm the militias, or the Congress passed a law to disarm the militias, that was well within the powers granted by the Constitution. The Second Amendment was the answer.

Thanks Al! Don Randall please read this! This was the "defect" in Article One you asked about.

Originally Posted by Antipitas

So just who were the militia? We all know the answer: They were every man (and many times, every boy) capable of defending hearth and home.

That was the idea but THAT was established by statute who the militia was and not the COTUS. As I have shown in other posts almost as soon as the Militia Act of 1792 was passed states started trying to get out of it. It was too expensive, the American people did not like being a part of a compulsory militia. Alexander Hamilton, George Washington and later even ole TJ himself realized it just wouldn't cut it. So the well-regulated militias of the states became the National Guard and today by statute we have the Organized militia which is the National Guard which is the direct lineal descendant of the state well-regulated miltias of the 2A and the unorganized militia which is merely a pool of people that the Organized Militia MAY draw it's membership from and accordingly have no rights, duties or responsibilties.

I still maintain that to the individual citizen today the 2A only applies to their own ability to defend themselves personally not to rebel against the government.

[Tennessee Gentleman]

Originally Posted by Antipitas

Few would maintain that a right to participate in the national defense in the way that the Second Amendment protects — as a member of the unorganized militia possessing small arms in common use — is implicit in ordered liberty or essential to a present-day free society....That last part that is in footnote 20, is the sum total of the reasons that the unorganized militia has no purpose or use in todays society.

Al, pardon my slowness but I am not sure I understand those connection of those two quotes.

Is the first quote saying that the 2A protects the right to participate in national defense as a member of the unorganized militia but then it isn't necessary?

And are you saying the unorganized militia has no use or purpose today because nobody (other than a few of us) care about it anymore?

[zukiphile]

Originally Posted by tennessee gentleman

Al, this is the crux and irony of the argument. Both the hard core pro and anti gunners want the militia to be tied to the right to keep and bear arms.

That is incorrect.

Tennessee Gent, to note that the militia exists and that the individual right to keep and bear arms is protected by the 2d Am. does not mean that one is "tied to" (I suspect from your locution you mean "limited by") the other.

That the individual right declared pertained to the militia should give a reader some insight into the breadth of the right it protected.

Originally Posted by hugh damright

Not at all ... the anxiety about a standing army was that it is a threat to free government, that it is a select force that might turn or be turned against the people ... whereas a militia composed of the body of people ensures that the body of people remain the final authority or sovereign and that secures a free State ... I don't see how their fear of a standing army and military rule meant they also feared militia which was inseparable from the people. They feared military rule, not free government.

Hugh, I believe you would agree that the population and the government are distinguishable. Do you agree?

If the militia were to be under control of the government it could not also be under the control of a separate entity, the population. If you are using the term "militia" according to code, you would not want that militia under government control since that would effectively mean a government controlled population.

Have I misunderstood your point?

[Hugh Damright]

If the militia were to be under control of the government it could not also be under the control of a separate entity, the population.

The militia is the population, or at least inseparable from it. Is it so hard to conceive that a militia composed of the body of people would be controlled by the government but not to such a degree that it could ever be turned against the population i.e. itself?

[Tennessee Gentleman]

Originally Posted by Hugh Damright

Is it so hard to conceive that a militia composed of the body of people would be controlled by the government but not to such a degree that it could ever be turned against the population i.e. itself?

Not at all hard to believe since the governments who really controlled the militias were the states and the FFs believed that since the bulk of the nation's defense would be in their hands it seemed unlikely they would support a federal tyrant. It was not the "people" who would stop the fed but the states.

[RDak]

TG: You know I always enjoy these threads also.

I need to get my thoughts back on track, so can I ask you these questions? (I've forgotten how far you go with the government involvement aspect of militias and, since I agree with Al's view on militias, I need to get a little better handle on how you feel.)

Do you feel the unorganized militia can only be "legitimized" when qualifying people are called upon by governmental entities to enlist and participate in a well regulated militia?

What rights do you see the unorganized militia having in organizing themselves in doomsday types of scenarios mentioned in the original post?

Let's say we are in deep, deep trouble and society has "broken down".

Could a group of us determine that someone like yourself, with military experience, be appointed as an officer to organize us into a workable force? And would this "appointment" fall under the framework of what the FF's intended a well regulated militia might evolve into?

ETA: I'm not talking about enacted statutes over the years because we all know legislators will never write out governmental involvement in areas such as this. It just never happens IMHO.

I look to Federalist Paper No. 29 alot when getting into gray areas and feel Hamilton's paper provides the "flavor" of what the militia system was all about at the time of the FF's. It is a "preamble" so to speak.

What I'm asking is your opinion as to what the FF's might say regarding situations not comptemplated at that time (i.e., where governments have broken down and there are only the unorganized masses wandering around).

I would say we do have the authority, under the "flavor" of the Constitution, to organize ourselves into a well regulated militia in such doomsday scenarios.

http://jim.com/federalist/fed29.htm

[Tennessee Gentleman]

Originally Posted by RDak

You know I always enjoy these threads also.

Seems to always bring out the usual suspects doesn't it? I am sure a psychologist could tell us why.

Originally Posted by RDak

Let's say we are in deep, deep trouble and society has "broken down".

Here has always been my problem with such scenarios. If our society and then our government with all it's democratic institutions "breaks down", then what relevance is the Constitution at all? I have personally seen that type of environment and the rule of law there (Somalia) meant nothing. It was survival of the fittest and the law of the jungle (no pun intended). So, really I am not sure we can really talk in those terms and I understand why TFL bars such TEOTWAWKI threads. As the Russians IIRC say: The living would envy the dead.

Therefore, I would only see a legitimate militia being called during a time of national emergency by a functioning government to meet a specific threat or problem. That is what I believe the FFs thought as well. The militia in such circumstances might be asked to bring it's own weapons but I doubt it would since firearms are cheap and plentiful today and the logisitical problems would be large with various assorted shotguns and Grandpa's .32.

However, even that scenario is pretty much beyond the pale today. No foreign country can invade us because we would nuke them into oblivion and we have sufficient NG and LEOs to handle large civil unrest or natural disaster without a need to call up the militia.

I am NOT talking about just volunteering to help like my church did during Katrina and I am not talking about brief localized small crazy periods like the LA riots where folk might band together for SD. Those are not militia activity.

Originally Posted by RDak

I look to Federalist Paper No. 29 alot when getting into gray areas and feel Hamilton's paper provides the "flavor" of what the militia system was all about at the time of the FF's. It is a "preamble" so to speak.

You know a lot of folk quote that paper (Federalist #29) but when I read it I see Hamilton arguing for a militia with more government control not less.

Finally, what militia thread would not be appropriate without mentioning the Nazis (forgive me Glenn). But you know it was the weak Weimar Republic and it's lack of effective democratic institutions and protection of civil rights that allowed the Nazi's to take over. The "armed citizenry" that facilitated that were the Brown Shirts. In fact I see very scary parallels between the Sturmabteilung and some of these "modern" militia groups. Mobs with guns who answer only to themselves. This is a true danger to liberty those who post fervently for some imagined unaccountable "people's militia" should consider.

[RDak]

Ok TG, thanks for the answers.

Yes, doomsday scenarios are extreme situations but I feel there is enough of the Constitution "inbred" in many, many of us that we might react differently than Somali's, but you would know that better than I would. (Did/does Somalia have an constitutional framework that would be more similar to ours than dissimilar?)

No doubt Hamilton calls for government involvement in most aspects of a militia, whether it be organized or unorganized, but he seems to temper this involvement IMHO when he makes this statement:

``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

``But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''

In any event, thanks for you opinion on this. I guess I agree in the main but disagree somewhat on how the unorganized militia could organize itself, with the help of military men and women, should the need arise. Thus, starting down the road of becoming a well regulated militia.

I'm going a long way around the barn in saying I feel the FF's wouldn't have a problem with the unorganized militia forming legitimate well regulated militias should the need ever arise. (Although you bring up a good point that this would be a highly unlikely occurrance. But that is what the OP brought up. I just thought it was an interesting way to look at how militias might work in draconian situations.)

[Tennessee Gentleman]

Originally Posted by RDak

Ok TG, thanks for the answers.

My pleasure and love the interchange.

Here is another takefrom Federalist # 29.

In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition.

and then here:

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority.

Originally Posted by RDak

Did/does Somalia have an constitutional framework that would be more similar to ours than dissimilar?

They have none and that is why a TEOTWAWKI scenario is plausible there unlike here. As I heard a CIA type say once" "You won't find any timeshares there."

[RDak]

Yes TG, overall Hamilton is for some governmental control over militias. In some of his writing, alot of control, in other paragraphs, not so much. But overall, some governmental involvement in supervising, organizing, etc. On average, he was quite a bit for governmental oversight IMHO.

I am also for governmental control under normal, everyday, "real world" types of situations.

However, those couple of paragraphs I quoted always have had me wondering if Hamilton recognized the need to have an armed, unorganized militia out there "just in case"? (I believe he did but I'll never know.)

I wish he were alive today. We could sit down with him, have a few beers and probably have one of the most interesting conversations we have ever had in our lives. (I've read he was pretty arrogant but I don't care, he was a pure genius IMHO.)

Btw, thanks for the info. on Somalia. Never knew they were without any sort of constitutional framework for all intents and purposes. Being under the control of Italy for so long, I am surprised by that fact.

[Tennessee Gentleman]

Originally Posted by RDak

I wish he were alive today. We could sit down with him, have a few beers and probably have one of the most interesting conversations we have ever had in our lives. (I've read he was pretty arrogant but I don't care, he was a pure genius IMHO.)

I would strongly recommend you view the HBO film John Adams. It is of course, a movie but I believe it captures very well the ideas and thinking of the times. One scene Hamilton speaks about the miltia during the Quasi-War with France that Adams refused to declare 1798-1800. In it Hamilton talks about the need for a standing Army since the state miltias are deficient and then prattles on about what type uniforms they should have.

The best scene IMHO was when G. Washington, T. Jefferson, Adams and Hamilton are having lunch. Hamilton says we need credit and so should borrow money immdiately from other countries. Jefferson replies: "I fear our revolution will have been in vain if a Virginia farmer is in hock to a NY Stock-jobber who is in hock to a London Banker" to which Hamilton replies "If men were angels we would need no government". Great stuff!

Originally Posted by RDak

Btw, thanks for the info. on Somalia. Never knew they were without any sort of constitutional framework for all intents and purposes. Being under the control of Italy for so long, I am surprised by that fact.

From the appearance of some of the buildings it looked as though they once had a nice city in Mogadishu but that was long gone. Sometimes colonial powers imparted their best to those they governed but I never thought Italy was very strong in the governmental department at least since the Roman Empire! Great cooks however!

[BlueTrain]

I've been wondering a little if those of use who are so in favor of an armed militia are like me and over 60.

[Tennessee Gentleman]

Originally Posted by BlueTrain

I've been wondering a little if those of use who are so in favor of an armed militia are like me and over 60.

Which according to 10 USC 311 which so many hand their hats on would make me and you ineligible for said miltia. So much for the unorganized militia.