A thought on the common topic of general militia usage

[Tennessee Gentleman]

Other than the definition, Where are they wrong in your opinion?

[zukiphile]

I believe that as human beings tend to do, they tell the truth... From their own perspective.

Don, some of the conflation of terms in the ADL article when coupled with the stated mission of the article suggest to me that the ADL exercise was more a matter of polemics than historical inquiry. Would you disagree?

Other than the definition, Where are they wrong in your opinion?

Tennessee Gent, I do wonder why you ask what is wrong with your article when it appears that you are actually uninterested in discussing it.

[Don Randall]

Tennessee Gentleman wrote:

I do not think either you or Mr. Fletcher are using the common and proper understanding of what a militia was during that period of time.

Interesting.

You place yourself above and superior to Andrew Fletcher in your understanding of the words, phrases and language of that time - Fletcher's discourse dates back to 1698 - although Mr. Fletcher was/is widely regarded as one of the great thinkers and political minds of that time.

He was widely traveled, well educated and intimately involved in the political events of the time. He was particularly well educated in the history of Europe with a keen understanding of the British Isles especially as regards their relationship with France.

As for me, I only know what I read and for the purpose of this conversation, I am reliant upon Mr. Fletcher as an historical source of information.

[Don Randall]

Zukiphile wrote:

Don, some of the conflation of terms in the ADL article when coupled with the stated mission of the article suggest to me that the ADL exercise was more a matter of polemics than historical inquiry. Would you disagree?

It appears to me that they are rather selective in their facts.

I'm trying without success to remember an amusing little story I once heard about how one can carefully choose which facts are included and which are ignored in an effort to dramatically change the way anyone hearing their report would understand it. The idea being that one can offer certain absolutely truthful statements to report on an event while omitting others - The net result being that the one hearing the report would be thoroughly deceived by hearing absolutely truthful statements.

[Tennessee Gentleman]

Originally Posted by Don Randall

In the 2nd Amendment, the framers discuss the "Well Regulated Militia" which is linked directly to "The People" and not the state. As the supreme court has stated, the term "the people" always means the same thing in every instance it is used. I would rather doubt you believe that, under the 1st amendment, that it is the militia which has a right to free speech, to worship freely or to publish without censorshipI am sure you would agree that the term "the people" assigned those rights to people as individuals.

Don have you read Heller? I think that might clear up the difference between the prefatory and operative clauses of the amendment.

Originally Posted by Don Randall

Do you have anything to refute that or are you going to hold stubbornly to what you believe simply because you wanna believe it in the face of evidence to the contrary?

Don have you read this passage 3.22 here: http://www.adl.org/MWD/faq3.asp?

What is wrong with their facts?

[Tennessee Gentleman]

Originally Posted by Don Randall

You place yourself above and superior to Andrew Fletcher in your understanding of the words, phrases and language of that time

No, I use other sources that differ from his view. I think you should also look at other sources not just those you like.

Originally Posted by Don Randall

It appears to me that they are rather selective in their facts.

You keep asserting but show no examples other than Mr. Fletcher who was writing about Scotland and not the US. Don you asked me for sources and I gave them to you so now shouldn't you refute those facts with facts of your own? Where are the facts presented by the article wrong?

[zukiphile]

It only seems prudent to approach with some skepticism a document that purports to tell us what words meant two centuries ago when it seems not to handle current language all that well.

From the ADL article:

3.2 Was there such a thing as a common law militia?

A. The militia were not created by the common law. Militia law is statutory law.

Whether the militia exists at common law and whether it is created by common law are distinguishable, even though the authors seem not to recognise this.

Similarly, militia law is largely statutory*, but this doesn't indicate that the militia is a statutory creation any more than the language of the Social Security Act would suggest that federal law created the elderly.

Tennessee Gent wrote,

I think you should also look at other sources not just those you like.

TG, have you spent much time reading Fletcher?

Where are the facts presented by the article wrong?

Some of the problems with your source are outlined for you in post 59.
____________________
* Since some cases pertain to the law as it applies to the militia, it would be fair to describe some of that body of law as common law, i.e. case driven rather than strictly a matter of interpretation of code.

[Don Randall]

I said that you are assuming your understanding of the language and terminology of 1699 as superior to that of Andrew Fletcher, a brilliant political thinker and Parliamentarian, to which you replied:

No, I use other sources that differ from his view. I think you should also look at other sources not just those you like.

Oh... Okay. I am certainly willing to look at other authoritative sources that shine a new light on things. I have not been around here much in recent years, so it appears that I have missed your references to the writings of other contemporaneous commentators of that time and their discussions of the meaning of the term "well regulated militia" and it's commonly understood meaning in the 17th and 18th centuries in Britain and America.

Please be kind enough to tell me which 17th and 18th century commentators are known to have used the term "well regulated militia" in a manner that disagrees with that meaning used by the Parliamentarian Andrew Fletcher in his influential historic treatise. That would interest me greatly and I would be most appreciative of the opportunity to learn.

[Don Randall]

You keep asserting but show no examples other than Mr. Fletcher who was writing about Scotland and not the US. Don you asked me for sources and I gave them to you so now shouldn't you refute those facts with facts of your own? Where are the facts presented by the article wrong?

Yes, Fletcher was a Scotsman. As such he was involved in the ongoing intrigue that was the relationship between Scotland and England, he was a subject of King Charles (King of England, Scotland and Ireland) before he lost his head. Then Billy Orange and Queen Anne. So what?

The fact that you seem to be attempting to minimize is that Andrew Fletcher of Saltoun was an important and well respected political leader, thinker and commentator of his time. Not just in Scotland, but throughout the entire kingdom of England, Scotland and Ireland. I was wondering if you had read his treatise and it seems that you have not.

You appear to be attempting to diminish the man's stature in an attempt to dismiss his treatise and thereby, his commentary on armies and militias in general and the "well regulated militia" in particular.

I am tempted to think you are having some difficulty refuting what he said and think it easier to attack him as a man - Which seems to be a rather difficult proposition, no easier than attacking his words and the insight they offer.

[Tennessee Gentleman]

Originally Posted by Don Randall

Parliamentarian, Andrew Fletcher, the author of A Discourse of Government With Relation to Militias makes it very clear, very plain and very obvious that he refers to only armed individuals apart from govenment sponsorship or command as being a "well regulated militia".

Originally Posted by Don Randall

Please be kind enough to tell me which 17th and 18th century commentators are known to have used the term "well regulated militia" in a manner that disagrees with that meaning used by the Parliamentarian Andrew Fletcher in his influential historic treatise.

If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.
Alexander Hamilton Federalist 29

But Hamilton was a federalist let's hear from Luther Martin, a prominent anti-federalist, in 1788 at the COTUS ratification convention on regulating the militia and who thought the states could do it better.

That leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each--That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress

Here's Roger Sherman's committee report in July 1789 to the Constitutional Committee:

The Militia shall be under the government of the laws of the respective States, when not in the actual Service of the united States,

At no time ever in US history has the view you seem to espouse been extant. The militia was always under the control of a governmental entity even during the revolution when in revolt against the crown the colonial government controlled it.

[Tennessee Gentleman]

Originally Posted by Don Randall

You appear to be attempting to diminish the man's stature in an attempt to dismiss his treatise and thereby, his commentary on armies and militias in general and the "well regulated militia" in particular.

Not at all Don, but other than relying only on his opinion what does your knowledge of the history of the US militia have to say about this? Where are the historical factual problems with the militia definition in the article apart from Mr. Fletcher? What do the laws regarding the militia in the US say? Do any of them say the miltia operates outside government control?

Don, I read the treatise of Andrew Fletcher. However, Fletcher's issue was with the King/Queen of England and our Constitution fixed many of the problems he had with their rule. Also, it seems form reading that Fletcher preferred the militia that was controlled by Barons in the countryside and I see that in 1789 as the state militias (being the equivilent of the Baron's militia) which I believe WERE the Founding Fathers bulwark against federal tyranny but those miltias were under the authority of the state not a mob with guns.

[Don Randall]

Oh boy... Where to begin?

Fletcher's issue was with the King/Queen of England and our Constitution fixed many of the problems he had with their rule.

Which does not in any way affect the meaning Fletcher attached to the term "well regulated militia" -- Unless there is something in there that escapes my understanding.

If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.
Alexander Hamilton Federalist 29

Again, there may be something in there that escapes my understanding. How does Hamilton assert that the "well regulated militia" is one and the same with the militias of the various states? It appears to me that he is saying he would prefer that government be empowered to sponsor and thereby control that militia of the people just as if it were the same as the militia of a state.

That leaving the power to the several States, they would respectively best know the situation and circumstances of their citizens, and the regulations that would be necessary and sufficient to effect a well regulated militia in each--That we were satisfied the militia had heretofore been as well disciplined, as if they had been under the regulations of Congress

Martin makes two references to militia in the above. The first is clearly stated by him as being a reference to state regulation of the state militia, the second reference does not use the words "well regulated" but instead, uses the words "well disciplined".

The Militia shall be under the government of the laws of the respective States, when not in the actual Service of the united States,

Where in the above is any reference to the "well regulated militia"?

[Don Randall]

Tennessee Gentleman, this is kinda fun - thanks for the debate.

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?

One proposed wording of the 2nd amendment contained the words "for the common defense" alongside the words "the right of the people to keep and bear arms". That failed to gain support in debates. It would seem most likely that removing the words "for the common defense" makes it clear that the framers were intent on recognizing and protecting the rights of people, as individuals, to keep and bear arms for their private purposes.

There was also a proposal to include wording that would excuse any armed man (who was opposed to war on religious grounds) exempting him from any possible call to arms. This seems another indication that the framers were discussing the rights of individuals, rather than state militia.

[armoredman]

I see my original post was ignored, but that's Ok.

"Lightning Bug" and "Lightning Bolt". Now consider that you are riding down the road at 65 mph on a motorcycle. Does it make any difference which of the two might strike you?

No, as I am insulated by rubber tires, and the lightning bug will smear my visor.

[zukiphile]

I see my original post was ignored, but that's Ok.

My own reaction was that legal liberties are unlikely to fare very well when civil order is stressed. In the hypothetical you posit, it seems unlikely that a body seeing a need for a gun would only take the one you had purchased for them to take.

[publius42]

I believe that most all of the colonies militia laws had provisions to equip those with weapons who were too poor to own them and that includes MA (I can provide you a source if you wish).

I already provided a source saying that, the Miller quotes. They collected delinquent fees from those who could afford to arm themselves but did not, and used those to purchase arms for the poorer citizens.

Do you believe that every single person in those states eligible for the militia owned a private firearm?

Do you believe in asking whether I have ridiculous beliefs in order to make me look foolish? Strawman. Do you believe that all militia in areas where the law required them to arm themselves disobeyed those laws, and all guns came from government?

What the real issue was in my post was whether the COTUS established that private ownership of firearms was the only way a militia could be armed. Do you think the COTUS says that a militia may only be armed by privately owned weapons?

Do you think the COTUS says that a militia may only be armed by government supplied weapons?

I must ask then what is your point is bringing up those laws which have all been repealed today?

Because Bluetrain called the idea of a militia armed with private weapons a quaint fantasy, and you agreed, I decided to point out that in the time period you guys were talking about, the governments of two major states required citizens to arm themselves for militia service.

I agree that in that time (1789) arms were scarce and expensive and the young governments didn't want to have to pay for them so they tried to "pass" that burden on to the public at large but as we have seen it didn't work and in fact is one of the reasons the militia failed.

While we agree on that, certainly at the time the second amendment was written, they were still trying to have a militia that was largely armed with weapons they owned, so that was the intent of the amendment: protecting private firearms ownership.

[Tennessee Gentleman]

Originally Posted by Don Randall

Which does not in any way affect the meaning Fletcher attached to the term "well regulated militia"

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.

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?

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.

[Tennessee Gentleman]

Originally Posted by publius42

Do you believe in asking whether I have ridiculous beliefs in order to make me look foolish? Strawman.

A bit touchy here? Chill out, I was trying to understand your point.

Originally Posted by publius42

Do you believe that all militia in areas where the law required them to arm themselves disobeyed those laws, and all guns came from government?

I believe that the states most definitely disobeyed the Miltia Law of 1792 very soon after it became law. If you will read the sources I provided you can read about that in greater detail. In fact that was where the term "unorganized" militia came about that so many today hang their hats on. It was a way to GET OUT of serving in the miltia.

Originally Posted by publius42

Do you think the COTUS says that a militia may only be armed by government supplied weapons?

It doesn't say so one way or the other and that it why I find it to be a spurious agrument when some try to claim that miltias must be armed by private weapons to try to support things like the unrestricted private ownership of military arms as some have on TFL in the past.

Originally Posted by publius42

I decided to point out that in the time period you guys were talking about, the governments of two major states required citizens to arm themselves for militia service.

And I pointed out that weapons were often supplied by the government and provided a source (which you apparently will not read) to show that these laws were impractical as was the republican ideal of the militia system and that because of that it is no more.

Originally Posted by publius42

certainly at the time the second amendment was written, they were still trying to have a militia that was largely armed with weapons they owned, so that was the intent of the amendment: protecting private firearms ownership.

However, I have always believed and Heller agreed with me that the well-regulated militia (meaning that of the states) was separate from the right to individual ownership of firearms. The "fit" between the two is no more as Justice Scalia said. We can have firearms today separate from and with no relation to service in the militia.

[Tennessee Gentleman]

Originally Posted by Don Randall

Tennessee Gentleman, this is kinda fun - thanks for the debate.

Thanks, I enjoy it too

[publius42]

I pointed out that weapons were often supplied by the government and provided a source (which you apparently will not read) to show that these laws were impractical as was the republican ideal of the militia system and that because of that it is no more.

Yeah, but you gotta admit that for a guy who took a wild guess instead of reading, it was a pretty good guess that your link started in 1792! (Still looking for the states that supplied their militias with arms in the 1780s, though. You said there were many. Which ones in particular?)

[Tennessee Gentleman]

Originally Posted by publius42

it was a pretty good guess that your link started in 1792!

No the link talks about the colonial militias well before the Act 0f 1792. BTW I looked at the MA militia law that you claimed required all citizens to be armed (and implied) that they had to supply their own arms and found that was not the case.

Originally Posted by publius42

Still looking for the states that supplied their militias with arms in the 1780s, though. You said there were many. Which ones in particular?)

All of them did when an individual could not afford one.

BTW have you read the source I have posted and care to discuss or are you just playing gotcha?.

Edit: If you ever get the chance to go to Williamsburg, go take a peek at the Governor's house. There are a ton of firearms there (all owned by the colonial government) in the entrance hall that were issued to the militia in times of emergency. Then, go by the gunsmith shop and ask how expensive guns were then and hard to get and ask if every able bodied man in Williamsburg owned a private gun. I did.

[Don Randall]

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.

My understanding of Fletcher's discourse is that he wrote about and discussed the standing army of the king, the militia available to the king when called to service. Fletcher also mentioned professional troops as well as part time troops - militia - available to lesser royals or other governments throughout the kingdom. When discussing professional soldiers under the authority of government, he wrote:

I say, if a mercenary standing army be kept up (the first of that kind, except those of the usurper Cromwell, and the late King James, that Britain has seen for thirteen hundred years) I desire to know where the security of the British liberties lies, unless in the good will and pleasure of the King: I desire to know, what real security can be had against standing armies of mercenaries, backed by the corruption of both nations, the tendency of the way of living, the genius of the age, and the example of the world.

Only when he was no longer discussing government troops and was focused on civilian population did he write:

Let us now consider whether we may not be able to defend ourselves by well- regulated militias against any foreign force, though never so formidable: that these nations may be free from the fears of invasion from abroad, as well as from the danger of slavery at home.

There is nothing in the above quote to indicate any intent or hope that the above armed citizens would be under the control of government. Note the phrase "...that these nations be free from the fears of... the danger of slavery at home..." 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?

[Don Randall]

Tennessee Gentleman wrote:
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.

I agree there was no such thing as a federal militia.

I disagree that the constitution always referred to militia as a state organ. I say the Article 1, Section 8 militia was clearly connected to the various states.

I say the 2nd amendment makes no reference of any kind to a state militia - that would be an absurdity unless there was a defect or deficiency in Article 1 that needed repair. I am unaware that any such thing has ever been suggested or claimed or that such an argument has been pursued.

I say the 2nd amendment militia is clearly connected to the people, as individuals. I believe it is sufficiently clear that Fletcher's "well regulated militia" can only be armed individuals not controlled by the chief executive. I believe the term "well regulated militia" in the 2nd amendment draws an intended distinction to show that militia to be apart from the state militia of article 1.

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.

The militias of the states, yes. The "well regulated militia", no.

There was no mention of a "well regulated militia" at the time, that came later, with the ratification of the Bill of Rights. Since there was no "well regulated militia" to which any reference could possibly be made, I submit that it is somewhat unlikely that is what they intended.

I note also that Article 1 does not discuss rights of people as individuals as is done in the Bill of Rights. Article 1 expressly discusses "powers" that are vested in the congress.

The Bill of Rights expressly recognizes and protects the rights of people as individuals.

[Tennessee Gentleman]

Originally Posted by Don Randall

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 believe there are paralleles between what Fletcher is writing about and some of the issues the new US faced. My English history is a little dim but wasn't it the Barons or wealthy landowners who first placed limits on the British Kings thru Magna Carta? I believe it to be so and so when I read this quote from Fletcher

I have shown that liberty in the monarchical governments of Europe, subsisted so long as the militia of the barons was on foot: and that on the decay of their militia (which though it was none of the best, so was it none of the worst) standing forces and tyranny have been everywhere introduced,

Shows me that he felt liberty was best preserved thru the local militias that existed at one time under the control of the Barons. I think the parallel is between those militias and the state militias in place in 1789. Those state militias were intended to be the bulwark against tyranny.

Originally Posted by Don Randall

I say the 2nd amendment makes no reference of any kind to a state militia - that would be an absurdity unless there was a defect or deficiency in Article 1 that needed repair. I am unaware that any such thing has ever been suggested or claimed or that such an argument has been pursued.

I already explained the issues the anti-federalists had with the militia clauses of the COTUS in Article 1. The historical record for that is there if you will read it. I posted a link and here is a YouTube video of some of that discussion. http://www.youtube.com/watch?v=jPBm_...eature=channel. Now the guy talking here focuses on the state militias being used to prevent slave upriseings (which they did) but listen to what he says about the defects perceived by the anti-federalists concering Article One section 8.

Originally Posted by Don Randall

I believe it is sufficiently clear that Fletcher's "well regulated militia" can only be armed individuals not controlled by the chief executive.

Not by the crown (your chief executive) but locally for sure by the barons or whomever were the local authority.

Originally Posted by Don Randall

I say the 2nd amendment militia is clearly connected to the people, as individuals. I believe it is sufficiently clear that Fletcher's "well regulated militia" can only be armed individuals not controlled by the chief executive. I believe the term "well regulated militia" in the 2nd amendment draws an intended distinction to show that militia to be apart from the state militia of article 1

Well, as you have said before you can believe that if you wish but the historical record shows otherwise. A well-regulated militia simply describes the purpose of the Amendment, there is nothing ther to indicate it is separate from the state militia. The type of militia you speak of, a mob of people with guns who answer to no one has never existed in our history as a legal entity. The well-regulated militia is the state miltias and that has further been decided in US case law.

You are entitled to your opinion but it is supported by neither US history, legislative history nor judical judgement so you will find you opinion to be rather fringe I am afraid.

Originally Posted by Don Randall

The Bill of Rights expressly recognizes and protects the rights of people as individuals.

Except the 10th and so think about the state militia in the same way.

[Tennessee Gentleman]

Originally Posted by Don Randall

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 cannot imagine that today our rights as citizens are protected by a defunct militia consisting of Bubba's shotgun in the closet. I believe they are protected by our democratic institutions, checks and balances, separation of powers and the rule of law. Something that MR. Fletcher did not enjoy as a citizen.