A Constitutional question.

[dahermit]

Oft times it is stated (by pro-gun arguments rather than anti-gun arguments) that one of the purposes of the Second Amendment (militia, right of the people to bear arms, etc.), is to guard against possible federal government overstepping its Constitutional boundaries. However, I have never come across any historical incident, or precedent where the Militia was called up to deal with any issue relative to attempting to control the federal government.

Furthermore, the other place (Article one Section eight) in the Constitution where the Militia is mentioned enumerates the organization and operation of the Militia. It states that the Federal Government is responsible for, amongst other things, "...governing such Part of them as may be employed in the Service of the Unites States, ..."

Given that, it seems unlikely that the framers of the Constitution envisioned the Militia being used against the Federal government and in fact seems to render the Militia Constitutionally unable to challenge the Federal government inasmuch as the Federal government is responsible for governing the Militia.

On the other hand, inasmuch as the Second Amendment seems (to me at least) to shift the responsibility for arming the Militia (according to Article one, Section 8) from the Federal government to the people themselves ("To provide for organizing, arming,..."). Does the Second Amendment likewise imply that the Militia may be used to quell a Federal government that has slipped the bounds of the Constitution?

[PolarFBear]

Delving deep on this one dahermit. IMO, the 2nd IS the remedy for a Federal Government, or Federal Agency, acting beyond the limits of the Constitution. How, would this over limit be determined? A Supreme Court decision? Then, what action would entail, cut off of funding would be a first step. Then impeachment (not POTUS) of the agencies administrators. Looking forward to learned replies for "dahermit's" inquiry.

[RaySendero]

dahermit wrote:
.....
Given that, it seems unlikely that the framers of the Constitution envisioned the Militia being used against the Federal government and in fact seems to render the Militia Constitutionally unable to challenge the Federal government inasmuch as the Federal government is responsible for governing the Militia.
.....

Don't assume, when you can research what the 2A signers said/wrote they meant!

[Aguila Blanca]

Originally Posted by dahermit

Furthermore, the other place (Article one Section eight) in the Constitution where the Militia is mentioned enumerates the organization and operation of the Militia. It states that the Federal Government is responsible for, amongst other things, "...governing such Part of them as may be employed in the Service of the Unites States, ..."

Given that, it seems unlikely that the framers of the Constitution envisioned the Militia being used against the Federal government and in fact seems to render the Militia Constitutionally unable to challenge the Federal government inasmuch as the Federal government is responsible for governing the Militia.

On the other hand, inasmuch as the Second Amendment seems (to me at least) to shift the responsibility for arming the Militia (according to Article one, Section 8) from the Federal government to the people themselves ("To provide for organizing, arming,..."). Does the Second Amendment likewise imply that the Militia may be used to quell a Federal government that has slipped the bounds of the Constitution?

The federal government never had the responsibility for arming the militia. If you read the post-revolution Militia Acts of 1792, it's clear that the militia were local bodies that could, under some circumstances, be called upon by the federal government. The premise was that each militiaman supplied his own rifle, and his own basic load-out of powder and ball. If the militia was called up (akin to the federal government calling up the National Guard today), then the federal government would provide additional supplies of powder and ball.

There were two militia acts in 1792. The first was enacted on May 2, 1792, and it provided for calling up the militia by the federal government.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Note that the President did NOT have to ask the states' permission to call up militias for the purposes of repelling an invasion. However, the President had to be asked by the state legislatures to call up the militia to combat an insurrection against the government. Why do you suppose that was?

The second militia act was enacted on May 8, 1792, and provided the standards for uniform arming and equipping of the various militias throughout the 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, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. 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 powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; 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.

https://www.constitution.org/mil/mil_act_1792.htm

Remember, too, that at the time the Constitution and the Bill of Rights were written, the fledgling United State had just gone through a major war of revolution against a well-armed government. The Founders were strongly opposed to the United States maintaining a standing army -- you can find a great many writings by various of the famous Founders to the effect that standing armies were evil.

https://allthingsliberty.com/2018/05...tional-debate/

Consequently, I believe that the premise of your post is somewhat off the mark. You refer to a passage in the Constitution that relates to the federal government controlling that portion of the militia that has been called into federal service as if it that means the entire militia was a standing, federal army. Not so. The militia of the time were not even necessarily state-level organizations. Most were organized at the town or city level, with the local militias probably forming companies and the states then organizing their militia companies into brigades or regiments. But they were not under federal control unless and until they were called up by the President.

By the way -- did you know that the militia still exists under federal law? Depending on your age, you may in fact be a member of the militia, or may have been for much of your adult life.

https://www.law.cornell.edu/uscode/text/10/246

[dahermit]

"The federal government never had the responsibility for arming the militia. If you read the post-revolution Militia Acts of 1792..."

Article one Section eight: "...To provide for organizing, arming(my emphasis)..."

It would seem to me that it did have that responsibility. Also, I have been under the impression that it takes an Amendment to change the Constitution, not a later law (Militia Acts of 1792).

Therefore, I want the Government to provide me with an M4, the number of mags routinely carried by our infantrymen, and a thousand rounds of 5.56 on strippers. Unless of course the Second Amendment was meant to be interpreted as shifting the responsibility of "arming" on to the people instead.

[sundog]

The Battle of Athens

This event is on the local level, but it is in concept why the founders enumerated the right to keep and bear arms.

[mehavey]

RTP completely:
ART-I/Sec-8: To raise and support Armies, …To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, Reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


...and then Madison/Federalist No. 46
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes.

But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

...and then realize that the War of the Rebellion/ War of Northern Aggression was an exercise of both these aspects, by both sides.

.

[5whiskey]

Why don’t we read what James Madison (widely known to have played a very extensive role in authoring the constitution) had to say about it. From the Federalist 46

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it

There is your answer regarding founding father intent regarding militia, bearing arms, and it’s purpose in acting as a counterweight to a tyrannical federal government. Things have changed significantly in America. While the greatest generation is, in fact, the greatest generation, the nationalism that arose post WWII and during the Cold War made Americans generally more submissive (my opinion at least). I would argue the second amendment (and all others obviously) is still as relevant today as ever. The mere threat of resistance to laws or government overreach forces those in charge to ask themselves “is it worth forcing the issue?” Many who would argue that we should all simply submit, after all “government knows best,” lament that a significant number of backwood hillbillies with ARs and plate carries very well may put their money where their mouth is if burdensome laws and regulations go too far. I have been vocal that many armed demonstrations “don’t look good” to some of the general populace, and I sometimes question the deployment of that tactic in some situations. In the end, I’m quite pleased that bubba has his ARs and plate carriers. Were it not for that, we may have already been relegated to muzzleloaders.

[Aguila Blanca]

Originally Posted by dahermit

Article one Section eight: "...To provide for organizing, arming(my emphasis)..."

Yes ... "To provide for arming ..."

Not "To arm ..."

They "provided for" arming the militia by enacting the Militia Acts of 1792, which "provided" the standards to which each member of the militia was required to arm himself.

To follow your example, then, the U.S. military has established the M16/M4 rifle/carbine platform as the basic long gun, and the M9 Beretta as the basic handgun. So that's the standard, which you can look up. To suitably arm yourself for militia duty, then, you need firearms that are compatible with what the Army uses. Any AR-15 that's chambered in 5.56x45 (or even a Ruger Mini-14) will work for the long gun, and any pistol that fires standard 9mm Parabellum ammunition will suffice for your sidearm. Your first battle pack of M193 or M855 is on you. If you need more in a shootout after you've been activated, the government will handle resupply. But the government isn't going to give you an M16, and M4, an AR-15, or a Beretta. If you get called up, you "run what you brung" (to recycle an old expression from car racing days).

[5whiskey]

Mehavey you were 3 minutes faster with Madison’s federalist 46 reference. You win this time!

[44 AMP]

Oft times it is stated (by pro-gun arguments rather than anti-gun arguments) that one of the purposes of the Second Amendment (militia, right of the people to bear arms, etc.), is to guard against possible federal government overstepping its Constitutional boundaries.

I think that argument is a bit "off target". The 2nd Amendment has nothing to do with the Militia, beyond formally recognizing the need for it, in the opening clause.

Because the Militia is necessary, and because the Militia is drawn from the local armed populace, then the ability of the government to infringe on the right to be armed must be limited.

simply put, if it is "legal" to allow the govt to restrict gun ownership, then the pool of armed men available to form a militia is reduced or even completely removed.

That's what the "right of the people... shall not be infringed" is meant to do. Prevent the govt from "legally" disarming the public. Its not about what use the militia might be put to, or about the right to resist a govt that oversteps its bounds, its about preserving the basic pool of armed citizens so that IF the need arises they have the tools to use.

This is an entirely separate matter than govt created & equipped forces, be they militia or standing forces. Those forces are covered under other laws, Not the 2nd Amendment.

Remember the concern our Founders had with standing armies. They felt them to be the plaything of tyrants and tried hard to create a system where a standing army was not a necessity, and the militia could be used at need, instead. But, they also recognized the need for a standing Navy.

IT was the tech of the times. With local militias providing men armed and trained in basic military structure, a functional "army" unit can be created in a relatively short time. Teaching farmboys how to operate (sail) and then fight a ship of war is not something that can be done that way. It requires full time professionals, and the Founders recognized that.

So, the 2nd Amendment is not about forming, controlling, or using militias, it is a check on the legal authority of the Federal government, in order that the base of privately, personally armed citizens, from which the militia is drawn at need, would be preserved.

It is not about our personal individual right to be armed, as such, it is about preventing the govt from infringing on that right, because of the deleterious effect that would have on our ability to form militias at need.

Recent high court ruling have stated that our personal individual right to be armed is independent of militia service. I believe the Founders knew this, and recognized it as a natural right. The 2nd amendment was written the way it was to prevent the fed govt (potentially) heavy thumb from squashing that right, SO THAT, in time of need we would have our personal arms and be able to form armed militias.

Thoughts??

[5whiskey]

Remember the concern our Founders had with standing armies. They felt them to be the plaything of tyrants and tried hard to create a system where a standing army was not a necessity, and the militia could be used at need, instead. But, they also recognized the need for a standing Navy.

I would also mention, as is somewhat relevant, that there was often a preface to standing armies... “large” standing armies. I digress but it is of note the US had a contingent standing army since the writing of the constitution. From 1787 to about 1940 it fluctuated in size significantly. It was mostly small and more suited to fighting Natives on the western frontier than to fighting a real war with another industrial nation. WWI and WWII saw the formation of many of the national guard units that exist today. The draft obviously played a giant role, but reserves and militia (national guard) were there. The larger problem is the US kept a much larger standing army after WWII, and it has pretty much remained that way since. For the first 150 or so years of our nation, the military looked almost exactly like it was intended to look. WWII, the world climate that resulted from WWII, and technology killed our ambition to limit standing army size to a contingent garrison force.

[44 AMP]

You can take it back to the Spanish-American War establishing the US as a player on the world military stage, giving us overseas possessions (the Philippines, etc) to be defended.

Europeans generally considered the US to be a minor player, until WW I, and WWII cemented our role as an international power and later, superpower, pretty much forever destroying the idea of our military being militia based and used only for defending our continental borders.

I think the Founders thought long and hard about the world they wanted us to live in, and did the best job humanly possible of setting up a framework where that could happen. Where we have drifted to, in the 2+ centuries since, certainly isn't their fault.

It's ours.
(and every generation of us between the Founders and today)

[mehavey]

Franklin: “A republic, if you can keep it”
. . . . Mrs Powel: “And why not keep it?”
Franklin: “Because the people, on tasting the dish, are always disposed to eat more of it than does them good.”

[zukiphile]

Originally Posted by dahermit

However, I have never come across any historical incident, or precedent where the Militia was called up to deal with any issue relative to attempting to control the federal government.

There is what we refer to up here as the Civil War.

Before that, the governor of Ohio resigned his federal army commission so that he could operate free of federal direction as the commander of the Ohio militia in declaring war on Michigan.

[mehavey]

There is what we refer to up here as the Civil War.

You mean the War of Northern Aggression ?

[44 AMP]

You mean the War of Northern Aggression ?

That would be the one where the South shot first??

Leaving aside the name of that war (and thread drift due to it) I think there aren't any, or any well known instances of local militia resisting Federal authority by force of arms.

I think this has never come about due to A) locals giving in to Federal coercion before the point of armed resistance was reached, and B) the people involved on the Fed side being smart enough to not back the locals, and themselves into that corner.

I could very well be wrong about that, however....

[5whiskey]

the people involved on the Fed side being smart enough to not back the locals, and themselves into that corner.

And we will never truly know just how much sway the 2nd amendment has really had over the years for this very reason.

[Cirdan]

You have to look at things in the context of the times. The US didn't really have a standing army at the time the Constitution was written. The idea of a "citizen's army" was a strong thread through US History, all the way up to WWI. There was always an expectation that the people would come together and defend themselves when needed. That's the foundation for the second amendment.

I'm NOT endorsing all those gun banners trying to reinterpret it in their favor. To me the words are perfectly clear. "Shall not be infringed." Pretty unequivocal. Times may have changed, but the right is still there.

[raimius]

He have seen the National Guard ordered by a state governor to impede actions directed by federal judges. It took the 101st Airborne Division to more-or-less settle things (temporarily).


https://www.history.com/news/little-...r-101-airborne

[5whiskey]

raimius thank you for posting that. We often discuss the overbearing and burdensome Federal government, yet there are many instances of the Federal government exercising its power for good and just causes. Such as in Little Rock following Brown v BOE.

Of course there still exists the opportunity for the Federal government to become too powerful and turn tyrannical, such that armed insurrection would be appropriate. But it’s important to note in these discussions we are nowhere near that currently. Not even 5% there. I would argue that the US has morphed into something that the founding fathers did not envision, but I would argue that they would also be more or less proud we’ve kept the republic intact as well as we have.

[44 AMP]

Of course there still exists the opportunity for the Federal government to become too powerful and turn tyrannical,...

This is only a possibility on days when the sun comes up....or end in "y".

Our history is full of both individual incidents and protracted policies that can, and have been called "tyrannical". Trouble is, one man's "tyranny" is another's "law enforcement" and another's "reasonable precaution" and on and on.

There are people right now saying our President is a tyrant. Pertty sure someone has said that about every President...

Some people think the 2nd Amendment gives us the right to own a gun. It does not.

Some think its about resisting a tyrannical government. Its not.

It's about the idea that citizens have the moral and lawful right to arms, for any and every reason they might need them, and the government's authority to restrict that.

Today, we have a lot of people in our country, many in positions of influence and some in positions of actual governmental power that believe that the government has a responsibility to restrict people's right to arms.

"for our own good", or "for the children" or "for (insert slogan of the month here...)" Many of those people have no issues violating, or simply ignoring the "shall not be infringed" portion of the 2nd Amendment, and its been going on for a very long time, and we grow accustomed to it.

My Grandfather, if he had had the money and the desire, could have walked into a store and bought a Thompson sub machine gun, and walked out with it. The only paperwork would have been a sales receipt. OR, he could have ordered it from a store, or the maker, and have had it delivered to his home by the US Post Office.

Can you do that, today? Not legally....
To me, that doesn't square well with "shall not be infringed"...

This quote is attributed to George Washington;
"Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; "

[dahermit]

Some people think the 2nd Amendment gives us the right to own a gun. It does not.

Please explain...you have a mental picture of what you mean...we do not.

[Aguila Blanca]

Originally Posted by dahermit

Please explain...you have a mental picture of what you mean...we do not.

The Bill of Rights in the Constitution does not grant (give) us rights. It recognizes that we have those rights, and it purports to guarantee that the government will not violate them.

[Tom Servo]

Please explain...you have a mental picture of what you mean...we do not.

Our country was founded on the idea that rights aren't granted. If they're up to the whim of rulers, they're privileges. I could go on about Locke and Blackstone, but the idea of rights as absolute concepts was a product of the time, and it was somewhat novel. As such, the Founders were sure to structure and word the Bill of Rights in a way that made this clear.

The 2nd Amendment doesn't grant the right to own a gun. It recognizes the right and prohibits the government from infringing on it.