Question about the 2nd Amendment (well regulated militia)

[ZeSpectre]

So what about the argument "since we don't use, need, or employ a militia anymore, how does the 2nd A apply to the Joe Citizen?

They didn't call themselves "militia" but when hurricane Andrew slammed Florida you sure saw local groups form pretty damned quickly to keep the peace in the absence of "official" .Gov intervention.

I guess what I'm saying is that the need for a localized, grass roots, ability to respond to an emergency hasn't gone away in spite of political brainwashing attempts to say it has and that only "the government" could possibly handle situations.

The media demonizing of the term "militia" has been very effective so folks shy away from that term now, but go out into rural America and you'll find that local "committees" still exist aplenty.

[Tennessee Gentleman]

The Militia that the 2A speaks of no longer exists. It has become the National Guard. The anti-gunners knew this and so tried to link the private ownership of firearms with the said defunct militia. Heller took care of that problem by decoupling the two clauses and declared that the individual citizen had the RKBA independent of service in the militia.

The "unorganized" militia defined in the Militia Act of 1903 is but a statutory construct that has no rights, duties, or responsibilities. It is merely a pool of people that might be drawn from to fill the organized militia which is the National Guard. BTW that pool by law is defined as able bodies males between the ages of 17 and 45.

[USAFNoDak]

peetzakilla posted:

So far as "no government interference", just like the first amendment is regulated to make for reasonable safety for the people, so must be the second. In the case of The First, it might mean no shouting "Fire!" in a crowded theatre. In the Second, it might mean restrictions on RPGs and similar weapons. On the opposite end, banning items like "handguns" or "assault rifles" is the equivalent of prohibiting free exercise of religion or shutting down newspapers that oppose government policy.

Here's an example I've come up with that may help to explain things. Let's look at the first amendment and the right to free speech.

1. can the government prevent you from expressing your opinion, with a pencil and paper, in your own house? No way! (analogous to the right to "keep" arms").

2. can the government prevent you from having a pencil and a notebook to write your opinion, in plain view, in public, even if your opinion disagrees with a government policy? No way. (analogous to the right to "bear arms").

3. can the government prevent you from flying an airplane, for which you do not have a pilots license, and sky writing your opinion above New York City airspace? Yes they can! "analogous to "can I keep and bear any arms I darn well please".

Now, on point #3, you can certainly "keep" an airplane on your property with no pilots license. You could probably legally fly it on your own property without a license. But you can not necessarily fly it off of your own property, even it you intend to use it to skywrite a political message. Also, you could not have a nuclear bomb on board that aircraft, whether it left your property or not.

I know this is not a perfect explanation, but it has some relevance, IMHO.

[BlueTrain]

I think there still exists a need for a good, old-fashioned militia, at least in places. It might be that very few people would care to be part of it but it might be that was the case in 1800, too, but that's a different problem, though not insignificant. On this particular point, it could be noted that during the colonial period in North America, not counting Mexico, there weren't many people and everyone was needed when called. That's not so much the case anymore and that puts the whole concept of the militia as the whole body of the people, otherwise limited by age, etc., up in the air.

Sometimes I think "we" (gun owners) think that government is the problem and that, somehow, "we" have nothing to do with government, which is simply not so. If "we" are just a small minority, then, well, that's a different problem. But I really don't care to see any sort of local self-appointed group of people start enforcing their own laws. No such group is a militia in the American sense of the word. That sounds like something from a third-world country, complete with war lords.

I wrote in another thread some of my thinking on the militia a few months ago but it went nowhere. I guess may it is irrelevant these days. But private ownership of firearms should not hang on an interpretation of the 2nd admendment.

[USAFNoDak]

The states should still be able to call forth their citizens to help protect vital areas in case of emergencies. Those citizens may need firearms and could bring their own. Will we always be able to rely on the federal govt. to keep us safe? Ask the folks down in New Orleans. Ask the folks in LA during the Rodney King riots. Ask the folks in Florida who defended their neighborhoods after a hurricane devasted them. Should we always rely on the federal government to keep us safe? God, no! If it comes to repelling a foreign enemy attacking our shores, then yes, they are our first line of defense. But what if the federal govt. would fail at some point? It's not likely to happen at this point in time, but what about at some point in the future? Hubert Humphrey had a famous quote about the second amendment.

"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959

The militia referenced in the Second Amendment was not about the national guard. It was about citizens showing up with their own arms to perform necessary, though temporary, military type functions and duties. It was to hold the federal, standing army in awe so as to avoid any usurpation of power by the feds through the force of their army.

In the nation we live in today, the militia has become an anachronist idea for the most part. However, there could be a future event where it will be required that men stand up and be counted to defend their families, their communities, their states, and their lives. No one holds a crystal ball.

At the very least, militia or no militia, the right of the people to keep and bear arms still exists in the United States. The right was deemed a natural right by the founders and they claimed that governments were formed to SECURE those natural rights. The right exists outside of any government, even though certain forms of governments do not seek to SECURE it.

[Hellbilly5000]

mi·li·tia Listen to the pronunciation of militia
Pronunciation:
\mə-ˈli-shə\
Function:
noun
Etymology:
Latin, military service, from milit-, miles
Date:
1625

1 a: a part of the organized armed forces of a country liable to call only in emergency
b: a body of citizens organized for military service
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service

[Hellbilly5000]

The term militia is commonly used today to refer to a military force composed of ordinary citizens[1] to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with multiple distinct but related meanings. Legal and historical meanings of militia include:

* Defense activity or service, to protect a community, its territory, property, and laws.[2]
* The entire able-bodied population of a community, town, county, or state, available to be called to arms.

* A subset of these who may be legally penalized for failing to respond to a call-up.
* A subset of these who actually respond to a call-up, regardless of legal obligation.

* A private, non-government force, not necessarily directly supported or sanctioned by its government.
* An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or State Defense Forces.

[Tennessee Gentleman]

Originally Posted by USAFNoDak

The states should still be able to call forth their citizens to help protect vital areas in case of emergencies.

The default position is the National Guard which is under state control unless Federalized. Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.

Originally Posted by USAFNoDak

The militia referenced in the Second Amendment was not about the national guard.

Correct, but that militia became the National Guard in 1903.

The rest of your statements about RKBA I agree with.

[Tennessee Gentleman]

Originally Posted by Hellbilly5000

A private, non-government force, not necessarily directly supported or sanctioned by its government.

This is not what the founders wrote the 2A about. That is nothing more than a mob with guns.

[USAFNoDak]

Tenn. Gentle. wrote:

Failing that I think most states have such provisions BUT only IF called up by the proper elected authority. Until that point no militia type right exists to those who just wish to call themselves militia and want to have military arms.

I agree, that the militia must be called out by elected authority before they can just start performing military duties. Private militias/armies are not what the militia in the Second Amendment is about. However, I'd be careful about saying that us citizens cannot have "military" arms. The antis consider the 1911 to be a "military" arm.

[USAFNoDak]

Tenn Gentle wrote:

Correct, but that militia became the National Guard in 1903.

I disagree. Where is this written? The National Guard become part of the reserve military forces for the federal govt. and could be used by the states when not in the service of the federal govt. Thus, in a hypothetical situation, the national guard could not be used by the states to battle a federal government which had gone out of control and become tyrannical. The Feds own the Guard. The states would be left with nothing but their armed citizens to defend themselves. Also, the feds may be using the guard in foreign battles, again leaving the states with no recourse but to call forth their armed citizens if required.

This is not taking into account the fact that many military personell and members of the guard would defect or refuse to obey orders which they believed were in violation of their oath to faithfully defend the US Constitution. I don't believe you can just wave a magic wand and say that in 1903, the national guard became the citizen militia referred to in the Second Amendment.

Outside of that, it's a moot point as to whether individuals retain the right spelled out in the second amendment. Militia or no militia, individuals still own the right, and the USSC has concurred. The Ninth US Circuit Court has stated that the Second Amendment also applies to the states and local governments. We are steadily making progress on this issue.

[Al Norris]

Originally Posted by maestro pistolero

Do you mean to say that the operative clause may stand on it's own, or that the prefatory clause is no longer valid, or both?

The operative clause may indeed stand upon its own merit, without regard to any militia involvement.

Way too many folks, both pro-gun and anti-gun seem to be stuck in some sort of time-warp. The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.

Yes, at some point this clause may be visited by the Supreme Court. But not today, nor in any reasonable and foreseeable future.

Get over it. Continued discussion of this clause shows a distinct lack of understanding the current situation. A situation placed in motion by the Heller decision.

[BlueTrain]

I don't think the militia clause is a moot point any more than the part about a free press would be if newspapers disappeared. Imagine that!

In reading over these posts you might think the only government is the Federal government. There are state governments, county governments, city governments, town governments, and so on. All of these entities exist for the benefit of the population and, in theory, the whole population. All government is local. Which government failed in New Orleans--or was it just the levee that failed?

Unfortunately I might agree that perhaps in some instances all of them may have failed (not referring here to New Orleans) for the simple reason that governments seem to be avoiding their responsibilities. It isn't so easy to say why that might be the case but it might be a matter of elected (mostly elected, I suspect) officials taking the easy way out. There's always the little matter of money and we all know how people hate paying taxes. It isn't the same everywhere, to be sure, but sometimes you have to wonder just who runs the government. Who the government answers to, that is.

It certainly doesn't answer to people who want nothing to do with government.

[publius42]

http://www.guncite.com/second_amendment_commas.html

There is no single version that anyone can identify as "THE" official version that was ratified, because the amendment was floating around with anywhere from 1 to 4 commas, and sometimes even different wording, during the ratification process.

Sorry, Antipitas, couldn't resist, though I know it's over.

[Webleymkv]

A very slight rephrasing of the Second Amendment makes its meaning much clearer. Scalia noted in the Heller decision that, in slightly more modern language, the Second Amendment could be read as "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people. Therefore, as Scalia noted, membership to the militia, organized or otherwise, is not necessary to enjoy the rights enumerated by the Second Amendment.

[USAFNoDak]

I've forgotten the math theorems by name but I seem to recall that there is one that states:

If A=B, A=C, and C=D, then B=D.

Maybe we can apply this to the Second Amendment in some way.

A well regulated militia (A) is necessary to a free state (B). A=B

A well regulated militia (A) must be comprised of an armed section of "the people" (C). A=C

To ensure that there is always an armed section of "the people" (C), their right to keep and bear arms shall not be infringed (D). C=D.

Thus, what is necessary to a free state (B) is that the people's right to keep and bear arms shall not be infinged (D). B=D.

Well, it works for me anyway.

[Tennessee Gentleman]

Originally Posted by USAFNoDak

I disagree. Where is this written?

The Militia Act of 1903. The National Guard replaced the state militias that were in existence when the COTUS was written.

Originally Posted by Webleymkv

Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people.

That is incorrect. The militia the 2A is talking about were the state militias. Governments (state or federal) in the USA organize, train, arm and call out the militias. There is no such thing as a "people's militia". There are today unauthorized paramilitary organizations (some are illegal) but they are not militias.

[Tennessee Gentleman]

Originally Posted by Antipitas

The entire militia clause is now a moot point. It no longer has anything to do with the RKBA, in the context the battles we are and will be engaged in.

Well said Al!

[USAFNoDak]

As far as who the miltia are or what it is comprised of, this article below might help.

http://armsandthelaw.com/archives/20...tia_act_of.php

Militia Act of 1792
Posted by David Hardy · 22 June 2005 05:02 PM
RKV suggested a reference to the original militia statute adopted by the First Congress might be interesting, with regard to showing what "militia" meant to the framing generation. Here's the Militia Act of 1792, and the Calling Forth Act. The former's relevant portion is:

"An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside....

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."

The Act remained on the books until 1903, when the Dick Act replaced it with the language now found in 10 U.S. Code sec. 311:

"Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

The way I read the new act of 1903, there is still a requirement that every able bodied male 17-45 years old and any female who is part of the national guard are still members of the militia in some aspect. They would belong to one of two classes:

1. those who are in the national guard or Naval Militia, including any females.

2. all males 17-45 who are not part of the national guard or the Naval Militia.

So, it would seem to me that there is still a body of armed citizens who are not part of the national guard, who are able to be called up by states or the federal government, if necessary, to perform localized military type duties and tasks. Thus, they are militia members and they are specifically a part of what the term militia refers to in the 2nd A.

To reiterate, this has nothing to do with who has the right to keep and bear arms. It is only one part of the reasoning as to why the people's right to keep and bear arms shall not be infringed. The people have the right. This means each individual has the right. It was given to them by God, or their creator, or naturally, depending upon how each individual looks at how they got here to this good earth. But the right exists outside of any established government. Government was established to protect those natural rights which are inalienable and are bestowed by our creator. Any knot head who believes that the right to keep and bear arms is some priviledge offered to us by the government, or is somehow tied to military service of some kind, is blowing peanut oil up their own colon with a hose. I hope they have an allergic reaction.

[Tennessee Gentleman]

Originally Posted by USAFNoDak

So, it would seem to me that there is still a body of armed citizens who are not part of the national guard, who are able to be called up by states or the federal government,

And you would be mistaken. Nothing in that act refers to anyone in the unorganized militia being "armed". The unorganized militia is nothing more than a pool of people who might be called up to be part of the organized militia or the National Guard. The "people's militia" is a pipe dream.

Here is a good link for you to use concerning the militia: http://www.adl.org/mwd/faq1.asp

[Webleymkv]

Quote:
Originally Posted by Webleymkv
Preservation of the people's ability to effectively organize a militia was the main purpose behind the Second Amendment so the right was guaranteed not to the states or to the militia but to the people.

That is incorrect. The militia the 2A is talking about were the state militias. Governments (state or federal) in the USA organize, train, arm and call out the militias. There is no such thing as a "people's militia". There are today unauthorized paramilitary organizations (some are illegal) but they are not militias.

I think we are both well aware of each other's position regarding the militia and I see no reason to rehash it. It is a fact, however, that at the time the Second Amendment was drafted, every able bodied male citizen between the ages of 17 and 45 was considered a part of the militia and no distinction was made between the organzied militia and unorganized militia, it was just the militia. Being that members of the militia were expected to provide their own arms, it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia. Whether or not that remains the purpose of the Second Amendment today is another issue that we've already discussed at length. It is, however a simple fact that this was its purpose at the time of its drafting.

Regardless, it doesn't make all that much difference now because according to SCOTUS our membership and/or eligibility for the militia has no bearing on whether we enjoy 2A rights or not.

[Tennessee Gentleman]

Originally Posted by Webleymkv

it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.

Where we disagree here is that the reason to arm the people was so that the state government could form the militia if needed. This is a crucial part of the clause and the 2A. The fairytale that many adhere to today that a militia is an unorganized, untrained, unassociated and self forming group of people who own guns was never either true or desired by the founders.

Originally Posted by Webleymkv

Regardless, it doesn't make all that much difference now because according to SCOTUS our membership and/or eligibility for the militia has no bearing on whether we enjoy 2A rights or not.

With this I agree.

[maestro pistolero]

Antipitas and Tennessee Gentlemen,

If the militia is a completely dead issue, how would you characterize the capacity in which the hypothetical citizens mentioned in the Nordyke opinion are serving, when defending the country against foreign invaders, as described by the court?

Isn't the preservation of the ability to raise a militia, inherent in the amendment? And if not, what about all that talk by the court of resisting a tyrannical government? Or are you suggesting that the national guard would do that on our behalf?

[Jofaba]

I don't know if the punctuation remarks are for me, but if you're saying that I am uneducated about American History, the Constitution, and the Bill Of Rights, then you are correct. That's why I joined this forum, to learn. It's all very interesting and while it's new to me to find history "fun", I am perhaps overly enthusiastic. But you'll see from my posts that I am open to admitting fault.

If you're saying that I am uneducated about English structure, then I do take offense. Not much, but some.

Regardless, I think you mistook what I was trying to say (if indeed that was aimed at me). I'm not talking legally the punctuation is important. I actually learned a lot from your post and it was incredibly interesting.

I was saying that it's important for the argument between an anti and a pro, so that you can get it out of the way. The anti is arguing based on the wording, so you have to get over that first hurdle. I'm saying exactly what you are, in simpler terms, that the punctuation of the statement negates that argument.

No bad blood here, I just wanted to clear that up. Dunno if I managed to do that though... =P

[Webleymkv]

Quote:
Originally Posted by Webleymkv
it is obvious that the preferatory clause is an explanation that states the people cannot be deprived arms so that they can organize, comprise, participate, or whatever other term you'd like to use for take part in the militia.

Where we disagree here is that the reason to arm the people was so that the state government could form the militia if needed. This is a crucial part of the clause and the 2A. The fairytale that many adhere to today that a militia is an unorganized, untrained, unassociated and self forming group of people who own guns was never either true or desired by the founders.

You're reading something that isn't there. This is all I'm trying to say:

The militia was composed of the people. It doesn't matter who regulated it, authorized it, called it forth, or disbanded it. It was made of the people. No people = no militia.

At the time the Second Amendment was drafted, there was no distinction between the organized and unorganized militia. Male citizens between the ages of 17 and 45 were the militia, everyone else was not.

Members of the militia were expected and required to provide their own arms. The government did not provide the arms to the militia, but everyone who was considered a member of the militia, meaning every male citizen between the ages of 17 and 45, was still expected and required to be armed.

The preferatory clase states that because the militia is necessary, the people cannot be deprived their right to arms. Because the people, or at least a large segment of them, were the militia, the purpose of the Second Amendment at the time of its drafting was to ensure that the militia could be armed. Whether or not that remains its purpose is another issue that we've already debated, but it is a simple fact that at the time of its introduction, arming the militia was the purpose of the Second Amendment.