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Old February 28, 2009, 01:04 PM   #23
Tennessee Gentleman
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Join Date: March 31, 2005
Location: Tennessee
Posts: 1,623
Originally Posted by BillCA
It might be that today's militia would not be as effective in battle as one in the 18th century, but that's not a reason to nullify or reject the guaranteed right.
I think he is saying what I believe in that the militia is no more because if they were they would have all the modern military weapons available to them which they do not today. The guaranteed right he is talking about is the Right to Keep and Bear Arms apart being in a militia.

Originally Posted by BillCA
Only in the crudest sense. Police & military forces act to guard government interests. Police are to solve crimes in the civilian circles and help apprehend and prosecute offenders. ...The military's function is to fight against national enemies abroad or to repel any attempted invasion.
Neither is required to actually protect the citizens at large or any individual.
Precisely what the militia did the army and police forces do today. The militia that existed in 1789 is no more and it's lineal descendant is the National Guard. What is still true however, is the right to personal self defense.

Originally Posted by BillCA
Again, I disagree. That is NOT what he said.
He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems.
I think when Scalia says:
degree of fit between the prefatory clause and the protected right
he is talking about the first clause of the 2A fitting with the operative clause "keep and bear arms" He is saying they don't fit together today as they did in 1789. Since there was no large standing army or professional police force in place the militia filled those needs and they don't today.

Originally Posted by BillCA
I'll let others speak on this subject:
So will I:

D. The Decline of the General Militia in America

The inclusion of the militia provisions in what became the Second and Fifth amendments proved insufficient to prevent the original ideal of the American militia from ultimately going the way of its English counterpart.

Pre-1789 American political thought had emphasized the need to enroll all citizens--or at least freeholders--for militia duty, and had rejected the idea of a "select militia," in which only a portion of the population was enrolled. Provisions that authorized the new Congress to provide for the arming and organizing of the national militia were seen as allowing it to require that all citizens possess arms of uniform caliber and conform to a standard of drill. In practice, while various administrations prepared detailed plans along those lines, Congress refused to enact them.
In 1792, Congress enacted the first (and until 1903, the last) national Militia Act. While this Act required all white males of military age to possess a rifle or musket--or, if enrolled in cavalry or artillery units, pistols and a sword--it did nothing to guarantee uniformity of calibers, fixed no standards of national drill, and failed even to provide a penalty for noncompliance. The subsequent presidential calls for detailed organization of a national citizen army went unheeded. By 1805, even Jefferson was reduced to asking for a select militia, which had been anathema even to conservatives a few years before. In a message to Congress Jefferson stated, "I can not, then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, by a separation of the more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation."

Within two decades of the ratification of the Constitution, American political leaders had abandoned the original concept of the militia, and in the words of one historian, "The ideological assumptions of revolutionary republicanism would no longer play an important role in the debate over the republic's military requirements." [160]THE MILITIA AND THE CONSTITUTION: A LEGAL HISTORY by William S. Fields & David T. Hardy Military LAw Review 1992
Here is the dirty little secret about the militia and why it is no more. Except for a very few gun sub-culture folks, the American People don't want one, have no interest in one and haven't since the 1800s. That is why we pay others today to fight in our place either cops or soldiers. No judgements from me as to the civic nobility of that attitude but it is fact. We got rid of the militia and it exists no more.

Originally Posted by BillCA
"The Militia" is, in fact, every civilian capable of bearing arms.
Bill, with all due respect and no offense, but that statement today is a fiction and has been for over 100 years.
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.

Last edited by Tennessee Gentleman; February 28, 2009 at 01:59 PM.
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