2nd Amendment question

[RDak]

TG: No. 29 is partially quoted here. I think it points out that there was a desire to keep people confident that their militias would serve as a bulwark against Federal tyranny by having the States appoint and control the officers of their militias. So, I'm not sure why you bolded the part you highlighted in your post?

Were you just trying to point out that there might have been a desire to administer the militias at a central, Federal level but have them comprised of State apponted officers?

As Al pointed out, the National Guard wasn't really formed until the early 1900's, (i.e., after the Spanish American War).

Until then, the militias were viewed as State run entities IIRC. Now, with the National Guard created fairly recently, that seemed to negate the need of a State militia(s)?

ETA: And I've read editorials in newspapers of that time where some people were not happy with the militias becoming more "federalized". So, it would seem, that back then, militias were considered State operated IMHO.

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

............There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

So, you can see that Hamilton was calming people's concerns right from the beginning of the USA, (i.e., relative to undue Federal control over the militias), by allowing the States to appoint all of their militia officers.

As Al pointed out in his most recent post, the National Guard statutes dramatically changed the scheme of things. Why would there have been a need to enact these statutes if, as you say, the militias were always Federally controlled?

[YodaMage]

Secure the Blessings of Liberty to ourselves and our posterity: Your posterity is your children and their children and so on and so forth. The Blessings of Liberty are defined as the rights and freedoms defined by the Bill of Rights and the Constitution. So, it means that the rights originally bestowed by the document are meant for you and all of your descendants from now until the end of time. That means that the right to bear arms not only can't be infringed, it can never be removed. If your grandfather had that right, then so do you.

So, from this we can derive that the 2nd Amendment's purpose is to provide for our well-being and health thereby implying the right to defend ourselves, and we can also infer that the right to do so can never be taken away since it is guaranteed for us and our descendants.

My great grandfather had a right to own some slaves too.... but well thought out point....

[Tennessee Gentleman]

Originally Posted by Antipitas

I'll give you a partial slide about the Guard being the lineal descendent.

Ok, we have some common ground then.

Now as to the use of the militia. Actually, there were several points of contention between the states and the Fed about the use ofthe Militia and those contentions carried on into the 1990s with Perpich vs. DoD 110 S.Ct. 2418 1990. Some southern states withheld large portions of their militias during the Revolutionary War to protect against feared slave uprisings. During the Constitutional Convention there was concern that the unprecedented power given Congress to organize, train, discipline, arm and call forth the militia worried many anti-federalists. The provision to allow the states to appoint their officers was a compromise as was the 2A which ensured the states could arm the militias if the Fed would not. However, the Federalist won the day on Federal control. Nowhere in the COUTUS does it say the militia may not be used overseas. States may have opposed such but I think there was no support in the courts for such opposition. You may know better on that one.

As of the late 1870's all men in the United States between the ages of 18 and 45 were obliged to serve in the militia and to arm and equip themselves for that purpose...Only a few took that seriously...Within a dozen years after the Civil War, however, increasing numbers of men began to take an interest in the militia. They formed units, drilled, and bought uniforms and arms. They were the nucleus of the National Guard. Very early they turned to political activity.

The National Guard Association was formed to seek a new militia law from Congress...The object was to have the Guard recognized in federal law as the "organized militia." This would distinguish Guard members from the vast majority of men between 18 and 45 years who were legally classified as militia but who did not actually serve.

The Guard, which was the militia in fact, would be acknowledged as such in law. Not until 1903 was the Guard able to achieve this its major political goal. ln the meantime, it thrived with the help from the states.

Observers in the 1880's and subsequent students have identified the labor riots of 1877 as the cause of the Guard's sudden growth. Unquestionably, industrial violence provided much of the impetus. Fear of violence by "anarchists, internationalist, and nihilists" led state and local governments to strengthen the militia forces. Development of the Guard began and proceeded fastest in the populous, industrial states of the North- Massachusetts, Connecticut, New York, Pennsylvania, Ohio and Illinois. In addition to the appropriations from state and local governments, the Guard received substantial private funds from wealthy businessmen- Martha Derthick, The National Guard in Politics, pp. 15-17.

Originally Posted by Antipitas

The States lost their militias to the ever expanding power of the feds. Any control that the States may have today over their own militia, is at the whim of the federal government.

Where we differ is I say that control was lost when the COTUS was ratified and not in 1903. It was always the intent of the Federalists (who were the majority) that the militia ultimately fall under the control of the Fed. The problem with the Spanish American War (as had been a problem before) was that the militias were untrained and unprepared for combat. Teddy Roosevelt who particpated in that war saw the problems with the system and replaced the archaic militia with the modern national guard and the states went along with it willingly for the most part.

So I think the militia died out in part because;
a. The American people don't like compulsory military training and would rather pay others to do it b. Modern Warfare does not lend itself to a militia system for a world power c. Separate state militias would be nigh impossible to effectively train and equip without strong Federal contol d. Nuclear weapons make it foreign invasion (from non-space aliens) impossible.

[Al Norris]

Before anyone gets the wrong idea, about my posts on the history of the militia, the fault for all of these changes rests squarely upon the shoulders of both the Federal Legislature and the State Legislatures.

In the Beginning (always wanted to use this phrase ), the greatest fear of the anti-federalists was that the militia clauses of the new Constitution gave so much power to the new federal government, that they could see the stagnation and abolition of the militias, by the direct failure of the Congress to not arm, supply, or train the militias. At the same time, increasing the size of the Army, would negate the States the power to fight federal tyranny.

Passage of the 2A was meant to allay those fears. Because if the common man retained the right to keep and bear arms, then the militia could never be disarmed, by neglect at the federal level.

What we had was a situation that all men were to be armed (Militia Act of 1798), but unless called into federal service, the feds did not need to supply a thing. The reverse was also true. Unless called into State service, the State did not need to fund the militia, either.

Anyone, besides myself, see the dual problem with this?

The War of 1812. The States were required to muster their militias. This meant that the States had to fund and supply their troops until those troops were integrated into federal service, at which point the feds had to fund and supply the troops. Same thing with the Civil War and the Mexican-American War.

Then the Spanish-American War came about. The States were required, by the Federal Government to keep supplies coming to their militias, until they were trained and ready to muster into federal service.

Both the States and the Central Government were at loggerheads as to when the troops were actually federalized, and who should actually supply the Troops. Reading the annuals of that war, the campaign with Cuba and then the Philippines, one reads how the militias were more than ready to do their patriotic duty, but were hampered with inadequate supplies from both governments.

The solution, at least from the Federal standpoint, was to federalize the militias from the get-go. The States, being relieved of the monetary considerations, went along with this.

Over time, the Federal Government took more and more control. The States simply acquiesced. After all, the Governors could still override the use of their militias, they were still the CIC of their militias, they just didn't have to pay a dime. It wasn't until the Act of 1933, that the National Guard Bureau began to refuse the appointment of officers by the States (on the grounds that they were inadequately trained), that the States began to realize what was happening.

Yet they (the Governors) still did nothing.

We have now arrived at a time when the States Militias are literally a thing of the past. All due to actions of the Federal Government and lack of actions on the part of the States themselves.

I would posit, that even at this late date, the proposition that "A well regulated militia, being necessary to the security of a free State," still carries meaning. Not even the Supreme Court has the authority or power to negate the words of the Constitution.

With Heller, the States can take action and take back control of their militias. That would mean that the States would have to fully fund the Guard, unless or until they are called into federal service. I just don't see that happening. Given past performance and especially under the current economic climate, I honestly don't see anything changing.

Still, and all, anyone who claims that the State Militias and the National Guard are one and the same, has not really studied the issue, as it pertains to the prefatory clause of the second amendment.

[vranasaurus]

The State governors should have no right to object to the federalization of the national guard because the national guard is paid for by the federal government(probaly more than 90%).


I would say that state defense forces are the entity most closely descended from the orignal militia.

[Tennessee Gentleman]

Originally Posted by RDak

I think it points out that there was a desire to keep people confident that their militias would serve as a bulwark against Federal tyranny by having the States appoint and control the officers of their militias. So, I'm not sure why you bolded the part you highlighted in your post?

Hamilton favored the select militia and thought the republican ideal of a citizen miltia to be folly. He is trying to calm the fears of those anti-federalist sympathizers that such a select militia would be no threat to their liberty. Hamilton urged Adams during the French Quasi-War of 1798-1800 to put a standing Army in place but Adams refused. Ironically Jefferson changed his mind and agreed to such when he was President.

[Tennessee Gentleman]

Originally Posted by Antipitas

anyone who claims that the State Militias and the National Guard are one and the same, has not really studied the issue, as it pertains to the prefatory clause of the second amendment.

Not one and the same, the National Guard is far superior to any previous State Miltia, but certainly lineal descendants. Therefore, the militia spoken of in the 2A became the National Guard of today. There is no "other" militia in existence and certainly none that gives any rights to we civilians qua the militia.

Good post otherwise. Bottomline, the militia went the way of the horse buggy. It just don't work anymore and is defunct in modern times as are Letters of Marque and such.

[maestro pistolero]

In the absence of any Iranian 2A rights, does anyone care to predict he success of the protesters in Iran to overthrow the results of the Sham elections? (40 million votes 'counted' overnight, and victory delared, while Norm Coleman and Stewart Smalley still have no result over a year later).

Only pointing out that, however unlikely the possibility of outright totalitarianism may seem in the US, it is only gun rights that provides any final deterrent, should incrementalism land us there eventually.

The anti-tyranny purpose of the Second is at once it's most unlikely and most important function.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be aseffective as militias in the 18th century, would requiresophisticated arms that are highly unusual in society atlarge. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and theprotected right cannot change our interpretation of theright.

Although others view this differently, (TG, et al) I view this as a statement that 2A protection of common small arms used by our military remains an open question. That there appears no willingness or intent to completely detach the two clauses lends support to this idea.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

In the absence of any Iranian 2A rights, does anyone care to predict he success of the protesters in Iran to overthrow the results of the Sham elections?

I am not at all sure if the Iranians had a 2A they would fare any better. The lack of basic democratic institutions that the majority seem willing to live with is the problem. Even if there was voter fraud I am not sure that the Hardliners would not have won anyway. One reporter has pointed out that most of the unrest is coming from the wealthier parts of Iranian society and the majority of the country does not support Mousavi. Arming the students and middle class might get more people killed but am not sure that in itself would overthrow the mullahs.

[maestro pistolero]

The lack of basic democratic institutions that the majority seem willing to live with is the problem.

Very true. But if the majority wanted to install real democracy, how could they?

[legaleagle_45]

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

Consider the language "shall not be infringed". The wording suggests a preexisting right which is being protected, rather than a creation or grant of a new right. With that said, one must look at the nature of the right to arms which was protected from infringement.

Perhaps the most influential legal treatise of the late colonial era was Blackstone, Commentaries on the Laws of England. Blackstone described the right to arms as protecting and enhancing two distinct natural rights, the natural right of resistance and the natural right of self preservation. The first is, for lack of better terminology, the militia right, while the self preservation aspect refers to self defense... a single right with a dual purpose. You can read the relevant portion of Blackstone here:

http://avalon.law.yale.edu/18th_cent...one_bk1ch1.asp

How did this dual right arise? Perhaps the best treatment of this subject is by Joyce Lee Malcolm in her book To Keep and Bear Arms: The Origins of an Anglo-American Right . To abbreviate the book down to a few sentences, the right evolved out of a duty to keep arms for puposes of national defense. England began the militia sytem in the 800's under Alfred the Great. Various laws called the "Assieze of Arms" delineated what arms individual MUST own to fulfill this duty. Naturally enough, the weapons that they were required to keep for militia purposes, were also employed for personal purposes, such as self defense, hunting and the like. The use of the weapons for said personal purposes off set the financial burden of the legal obligation, making it more acceptable to the people at large, giving rise to an expectation that they could use these weapons for personal purposes. When this expectation was violated during the reign of Charles II and James II, the result was a Glorious Revolution and the affirmation of this expectation as a right delineated in the English Bill of Rights, circa 1689.

Ok, now to get to the founders... the issue arose due to the expansive authority given to the federal government over the militia in the proposed, but not yet ratified constitution. Debates in the various state ratifying conventions raised some concerns which gave rise to a demand for a Bill of Rights. The inclusion of the 2nd and its wording is based upon these debates. The state of Virginia was perhaps the most influential and it is certainly the most detailed transcript of the proceedings. These debates can be read here:

http://www.constitution.org/rc/rat_va.htm

The dates where the militia was debated by such luminaries as Patrick Henry, James Mason and James Madison begins on June 14, 1788 about half way down here:

http://www.constitution.org/rc/rat_va_12.htm

and continues over 2 more days.

Hope that helps...

[jersey_emt]

Here's my quick and simple interpretation of the Second Amendment:

"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."

An armed militia is necessary to ensure the security of the free USA. Hence, the right of the people to keep and bear Arms shall not be infringed. Denying the right of the people to bear arms does away with the militia, hence, doing so can compromise the security of the free USA.

[ImprobableJoe]

I am currently gathering material for a project and have run into a question that I’m having difficulty finding an answer to. I know the caliber of members on this board and figure this is the best place to find genuinely substantive answers. The question is this; I have always had just a passing familiarity with the 2nd Amendment and had always associated the 2nd Amendment with the right to self protection and the right to preserve home and country against enemies both foreign and domestic. Well now that I am actually trying to write something on this I went and looked up the 2nd Amendment which reads;

“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.”

No where in here does it reference anything about protecting home and country. In fact there is no language that that would imply anything like this.

I have read a number of editorials, opinions and other treatments on the 2nd Amendment and this association with the idea that one of its purposes is to defend against enemies foreign and domestic is pretty common. The problem is that I don’t see where this comes from or where this is established.


Can someone pleas enlighten me as to where this connection is made in our founding documents.

Maybe it isn't. The 2nd Amendment is probably the dumbest thing the authors of the Constitution ever came up with. It doesn't even work as basic grammar, let alone sound legal reasoning.

So, look to the case law. Gun ownership rights are founded in case law, not the Bill of Rights.

[Hugh Damright]

Regarding the term "free State", here are some selected definitions from Webster's 1828 & 1913 dictionaries:

FREE - In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.

STATE - A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government ...

More usually the word signifies a political body governed by representatives; a commonwealth; as the States of Greece; the States of America. In this sense, state has sometimes more immediate reference to the government, sometimes to the people or community. Thus when we say, the state has made provision for the paupers, the word has reference to the government or legislature; but when we say, the state is taxed to support paupers, the word refers to the whole people or community.
...
In the United States, one of the commonwealth, or bodies politic, the people of which make up the body of the nation, and which, under the national constitution, stands in certain specified relations with the national government, and are invested, as commonwealth, with full power in their several spheres over all matters not expressly inhibited. &hand; The term State, in its technical sense, is used in distinction from the federal system, i. e., the government of the United States.

COMMONWEALTH - An established form of government, or civil polity; or more generally, a state; a body politic, consisting of a certain portion of men united by compact or tacit agreement, under one form of government and system of laws. This term is applied to the government of Great Britain, which is of a mixed character, and to other governments which are considered as free or popular, but rarely or improperly, to an absolute government. A commonwealth is properly a free state; a popular or representative government; a republic; as the commonwealth of Massachusetts. The word signifies strictly, the common good or happiness; and hence, the form of government supposed best to secure the public good.