2nd Amendment question

[Uncle Billy]

It seems simple to me: The modern definition of "well-regulated militia" notwithstanding, the word "people" in the 2nd Amendment means the same thing as it does in the 1st, 4th, 5th and 10th- individual citizens. None of those make any sense unless the word "people" means each individual person- the intent was to protect the rights of each citizen individually, not as a member of a larger group. If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"), they'd have said "the right of the individual states to maintain armed forces" shall not be infringed. They well knew the specific definition of the words they used and they didn't misspeak.

 

[Tennessee Gentleman]

If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"),

No evolution at all. That is exactly what the militia was and part of the reason that the 2A was written. That was, to insure that the States could continue to have a bit of control and authority over the militia rather than cede it all to the Fed. However, that issue is irrelavent today.

If the writers had meant the 2nd amendment to enable the states to maintain armed forces (arguably the evolved definition of "militia"), they'd have said "the right of the individual states to maintain armed forces" shall not be infringed.

They had already taken care of that in the Article I, Section 8, clauses 15 and 16. The problem was the states feared the control the Fed had over the state militia (there was never a federal militia). That is why the reference is made to the militia.

If the writers had meant the 2A to only apply to individual firearm ownership by citizens they would have said simply "The right of the individual citizen to keep and bear arms shall not be infringed" However as you say;

They well knew the specific definition of the words they used and they didn't misspeak.

 

[Al Norris]

Good Show, for those that answered quickly!

However....

The arms against tyranny were meant for the State militias and since that threat never emerged the States did away with the miltias and replaced them with the National Guard.

Sadly, you are mistaken, as the actual history of the National Guard would prove.

While the National Guard is controlled by the State, it is wholly a Federal entity. Such State control is by statute (Title 32 U.S.C), but is fully under Federal control (Title 10, U.S.C.). Once immediate authority is invoked under Title 10, executive control is then invoked in Title 5, U.S.C (the Uniform Code of Military Justice). Last codified by the Militia Act of 1956.

The definition of the "National Guard" as the active militia, was codified during the Spanish American War, when the States refused to allow the federalization of their organized militias. The reasoning was that in order to call "forth the militia," for execution of "the Laws of the Union, suppress Insurrections and repel Invasions," the direct implication was that the militia would never leave the soil of the U.S. This was upheld by the Supreme Court, whereupon the Congress passed the Militia Act of 1898, which amended the original Militia Act of 1792). This stripped the States of control of their militias, during any crisis that the Congress authorizes the President to call up the militia. In 1903 (the Dick Act), further legislation completely federalized the "National Guard" as a reserve component of the U.S. Army.

The New York State Militia voted in 1824 to rename itself as, "Battalion of National Guards," in honor of General Marquis de Lafayette, who was instrumental in the success of the Colonies rebellion against the English, and the French Revolution of the 1890's. New York, by Statute, renamed its Militia as the "National Guard" during the Civil War and afterwords, several of the States followed suit. The name was formally adopted by Congress with the passage of the National Defense Act of 1916.

That is the true beginning of the National Guard, as we know it today. That is also the end of the State Militias as they were then known.


Off to work....

Sources:
http://www.globalsecurity.org/military/agency/army/arng-history.htm
http://www.ngb.army.mil/about/default.aspx

 

[vranasaurus]

If the writers had meant the 2A to only apply to individual firearm ownership by citizens they would have said simply "The right of the individual citizen to keep and bear arms shall not be infringed" However as you say;

Then why didn't they use the phrase "Individual citizen" in the 1st, 4th, 9th, or 10th amendments? The 1st, 2nd, 4th, 9th, and 10th amendments all use "the people". While the 5th and 6th amendments references persons and the accused.

US V. Verdugo-Urquidez

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words (p.266)"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

 

[LaBulldog]

Constitution of Virginia, 1776

One of the documents that may have influenced the Bill of Rights is the Constitution of Virginia, 1776. Look at SEC. 13.

Constitusion of Virginia, 1776

The Constitution of Virginia
June 29, 1776 1(1)

Bill of Rights; June 12, 1776

A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.

SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

SEC. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

SEC. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

SEC. 4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary

SEC. 3. That the legislative and executive powers of the State should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

SEC. 6. That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representives so elected, nor bound by any law to which they have not, in like manner, assembled, for the public good.

SEC. 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

SEC. 8. That in all capital or criminal prosecutions a man bath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.

SEC. 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

SEC. 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

SEC. 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

SEC. 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

SEC. 14. That the people have a right to uniform government; and, therefore, that no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.

SEC. 15. That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

SEC. 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.


(1) Verified from "Ordinances passed at a General Convention of Delegates and Representatives from the Several Counties and Corporations of Virginia, Held at the Capitol in the City of Williamsburg, on Monday, the 6th of May, A. D. 1776. Reprinted by a Resolution of the House of Delegates of the 24th February, 1816. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." pp. 3-6.

"The Proceedings of the Convention of Delegates for the Counties and Corporations in the Colony of Virginia, held at Richmond Town, in the County of Henrico, on the 20th of March, 1775. . Re-printed by a Resolution of the House of Delegates, of the 24th February, 1810. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." 8 pp.

"The Proceedings of the Convention of Delegates for the Counties and Corporations in the Colony of Virginia held at Richmond Town, in the County of Henrico, on Monday the 17th of July 1775. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Du-Val, Printers. 1816." 116 pp.

"The Proceedings of the Convention of Delegates held at the Capitol, in the city of Williamsburg, in the Colony of Virginia, On Monday, the 6th of May, 1776. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Duval, Printers. 1816." 86 pp.

"Ordinances passed at a General Convention of Delegates and Representatives, from the several Counties and Corporations of Virginia, held at the Capitol in the City of Williamsburg, On Monday, the 6th of May, Anno-Dom. 1776. Reprinted by a Resolution of the House of Delegates, of the 24th February, 1816. Richmond: Ritchie, Trueheart & Du-Val, Printers. 1816." 19 pp.

This Declaration of Rights was framed by a Convention, composed of forty-five members of the colonial house of burgesses, which met at Williamsburgh May 6, 1776, and adopted this Declaration June 12, 1776.

This constitution was framed by the convention which issued the preceding Declaration of Rights, and was adopted June 29, 1776. It was not submitted to the people for ratification. [Back]

Source: The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America
Compiled and Edited Under the Act of Congress of June 30, 1906 by Francis Newton Thorpe
Washington, DC : Government Printing Office, 1909.

 

[Tennessee Gentleman]

Good Show, for those that answered quickly!

Hey I want extra credit. Not really fair though as you have used that quotation before and I knew it. vranasaurus was quicker on the draw and so I think you should give the extra credit to vranasaurus

Sadly, you are mistaken, as the actual history of the National Guard would prove.

Au contraire, the National Guard is the lineal descendent of the "well regulated" State militias referenced in the 2A. While the NG may be federalized (as could the state militias if Congress called them) it is a part of the Total Force of our military that, while a change, is not in great part different than the power the Fed assumed over the state militias in 1789. Until they are federalized however, they belong to the state and are under the command of the Governor. The "unorganized militia" (a term that did not come about until much much later in our history) that some call the "militia" of today is nothing more than a statutory construct that has no rights, duties, or reponsibilities. The National Guard came into being due to the obvious deficiencies of the miltia system and I agree that officially with the Dick Act;

That is the true beginning of the National Guard, as we know it today. That is also the end of the State Militias as they were then known.

Then why didn't they use the phrase "Individual citizen" in the 1st, 4th, 9th, or 10th amendments?

Same same to me. The people or individuals is the same just different language. The point is the 2A was not just written to guarantee the people's (or individual citizen's) RKBA. The arming of State Militias was a part equally important as well.

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Indeed, many credit the BOR as coming from the mind of George Mason who is given credit by some for being the "Father of the BOR" as much as Madison. However, the problem with that form of right is that the militia it speaks of no longer exists. That is why the anti-gunners tried to tie the right to service in the militia. Heller correctly disengaged the two.

 

[Micahweeks]

Well, here is one way of looking at it:

The Constitution has a purpose. What is that purpose? Well, it is defined for us in the preamble.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Now, that states that the purpose of the constitution and its amendments are to do these things...

Insure domestic tranquility: doesn't really apply here as it refers to the government being powerful enough to stop armed conflicts that would threaten its sovereignty.

Promote the general Welfare: the term "Welfare" had a different usage then. It referred to a person's health or well-being. Now, if the purpose of the Constitution and its amendments is to preserve our well-being, then it stands to reason that a purpose of the 2nd Amendment is to preserve our lives.

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.

 

[RDak]

Ron: Have you read Heller real closely? I think your question is discussed and maybe a footnote(s) provides somewhat an answer but I'm not sure on that one.

Nordyke (CA-9) came to the same conclusion in the concurring opinion. Maybe read that decision real closely to see if there was a footnote(s) referred to.

The militia part of the 2nd Amendment has, IMHO, always been understood to guard against foreign and domestic enemies from all I've read. By that I mean, it has basically been accepted and not argued much, if at all.

You get what I mean, (i.e., it's just something that has been generally accepted IIRC). That's why you are having such a hard time finding something concisely addressing your question IMHO.

ETA: You might read these Federalist Papers. No. 29 is about Militias.

http://en.wikibooks.org/wiki/Wikiju...reedom/Federalist_Papers/Federalist_No._21-30

 

[Tennessee Gentleman]

Ron,

Here is a good quote from Federalist #29;

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia

 

[Al Norris]

Au contraire, the National Guard is the lineal descendent of the "well regulated" State militias referenced in the 2A. While the NG may be federalized (as could the state militias if Congress called them) it is a part of the Total Force of our military that, while a change, is not in great part different than the power the Fed assumed over the state militias in 1789.

I'll give you a partial slide about the Guard being the lineal descendent. But the rest? Nope.

The Constitution allows for three reasons for the Congress to call up the militia. 1)To execute the laws of the Union; 2)To suppress insurrections; and 3) To repel invasions. (Art. I, section 8, clause 15)

All 3 reasons occur on U.S. soil. The constitution did not give the Congress authority to send the militia overseas. That was the legal objection by several States in the Spanish-American war.

Of all the State volunteer militia units (146 units), only 34 of the militias served abroad.

The reason? The constitution did not allow the Federal Government to assign militias to duty outside of the national boundaries. Several of the State Governors were all for defense in case of invasion, but refused to allow embarkation abroad of their militias. Of those that did serve abroad, some did so under the objections of some of their Governors, while others did so with the explicit consent of their Governors.

All this changed with Militia Act of 1903, which established the State Militias as the primary organized reserve force of the U.S. Army.

The National Defense Act of 1916, the State Militias became fully federalized as the National Guard. This Act also defined the two classes of militia that we have today: The organized militia (National Guard) and the unorganized militia. It was at this time, that several of the States organized their State Defense Forces as separate entities. These are recognized by federal law as being part of the unorganized militia. The Act of 1916 also gave the President authority, as CIC, of the Guard in times of war or national emergency.

The National Defense Act Amendments of 1920, besides establishing the Militia Bureau (Later, the National Guard Bureau), also stripped the States of their power to appoint its own officers.

The National Guard Mobilization Act of 1933, made the National Guard a component of the Army. All persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army.

The Armed Forces Reserve Act of 1952, included language (at the insistence of Pres. Eisenhower) that gave State Governors the power to deny federalization of their State National Guard for military duty outside of U.S. Territorial Jurisdiction.

Next was the Montgomery Amendment to the National Defense Authorization Act of 1987. This provided that a Governor cannot withhold consent with regard to active duty, for purposes of training, outside the U.S. Every governor protested this law. It was however, upheld by the Supreme Court. See Perpich v. Department of Defense, 496 U.S. 334 (1990). It should be noted here, that it doesn't matter what the actual activity is, as long as it is called "training."

The Defense Authorization Act of 2007, stripped the Governors of their role of sole commander of their States National Guard, during emergencies within the State. Again, all 50 Governors protested this action by the Congress, to no avail. The President can take total control of a States Guard without any consent of the Governor.

I relate all of this, to show that the militia didn't just disappear. It didn't fall into disuse or neglect. 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.

So yes, it is a great deal different than what the feds could do, back in 1798. Or even the next 118 years after that.

 

[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]

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.

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]

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]

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]

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?