Pressure on SCOTUS

C

cold dead hands

Moderator
Do you think there will be politicians trying to pressure SCOTUS into ruling in favor of the individual right to bear arms and try to deflect the whole issue of militias in general? This as clear as I can make the question. Cleas as mud?

What I am trying to get at is that I think the pols will be willing to take a step back (in their eyes) by trying to get guns rights brought to an absolute that it is an individual right or else there may very well be a huge number of people starting and joining militias in in order to maintain their collective right to own guns. When you consider just how much effort the feds put into trying to make militias go away (ATF set ups, public smear campaigns, etc..) you need to realize that the last thing they want is militias making a big come back with ever more people than ever before.

If they can keep us as relitively un-unified individuals instead of a collective force to be respected then they are that much safer.

Opinions?
 
Most, if not all, states have militias that are designated in their constitutions. Those are the same same militias referred to in the U. S. Constitution.

Are you asking about private 'militias'? Like some skin-head group that lives in a compound somewhere? If you are, it's not the same thing.
 
People getting together to start/join private militias will not help legally - they would have no recognition by govt. This action may however put some fear into those in power who would otherwise gladly deny the people a secured right; depends how real the threat is, how wide-spread it becomes, if it can be handled/contained by LE, how far both sides are willing to go, &c.

Though idiots like the Brady Bunch and VPC probably don't care, it would be nice to think that many politicans do have it in the back of their minds what could happen if they usurp power from the people (even if it means just being voted out, or worse). That is a calculated way to protect liberty.
 
No, I am not referring to wack jobs, though I suspect they would gain a lot of ground too. Black Panther pride...anyone? Specifically thinking only whites will start up is just plain dumb.

I mean a butt load of people actually put their names on the roster and present it to the governor of their state and say we are the militia and then proceed to actually get organized. Regardless of wether or not the governor plans to call them into duty has nothing to do with it. The state does not control who can be in the militia. There is now an official voluteer militia because the SCOTUS ruled that firearms ownership is a collective right reserved for the militia.

As I said, I suspect that a few million are going to sign up and even sacrifice some personal time ( actual drills and meetings, etc..) to insure their guns stay in their posession since they are now in the militia. Some state may prohibit para military training but that cannot be applied to the militia since they are officially for the common defense, not a specific groups protection. I'd join if needs be.
 
The Militia of the several States as protected in the Constitution was not a bunch of volunteers gathering on their own as you describe - there was always some govt supervision/sanctioning/regulation. The colonial/commonwealth Militia Acts DID say who was in the Militias, how they were to be organized etc. After 1789 the feds took over some of those state powers, and then the federal Militia Acts set down the rules.

What THE Militia is now is defined by law - by the feds or the states. At the same time, numerous states have statutes prohibiting the existence of private militia and/or their training activities.
 
What THE Militia is now is defined by law. At the same time, numerous states have statutes prohibiting the existence of private militia and/or their training activities.
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Virtually everyone is a member of the recognized unorganized militia. I don't believe that the official sanction, i.e., charter, of a State Government is necessary in order to form a militia unit that passes Federal muster.

United States Code
TITLE 10 - ARMED FORCES
SUBTITLE A - GENERAL MILITARY LAW
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

U.S. Code as of: 01/19/04
Section 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
 
I don't believe that the official sanction, i.e., charter, of a State Government is necessary in order to form a militia unit that passes Federal muster.
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Curious - what federal muster might that be?
 
CDH,

OK - re-reading I see the distinction you are making between "private" militia and a State Defense Force / Guard. If many would sign up for their state sanctioned Defense Force, and perform per their regulations, etc. that would be OK.
 
Federal Scrutiny:

United States Code
TITLE 32 - NATIONAL GUARD
CHAPTER 1 - ORGANIZATION
Section 109. Maintenance of other troops

(a) In time of peace, a State or Territory, Puerto Rico, the
Virgin Islands, or the District of Columbia may maintain no troops
other than those of its National Guard and defense forces
authorized by subsection (c).
(b) Nothing in this title limits the right of a State or
Territory, Puerto Rico, the Virgin Islands, or the District of
Columbia to use its National Guard or its defense forces authorized
by subsection (c) within its borders in time of peace, or prevents
it from organizing and maintaining police or constabulary.
(c) In addition to its National Guard, if any, a State or
Territory, Puerto Rico, the Virgin Islands, or the District of
Columbia may, as provided by its laws, organize and maintain
defense forces. A defense force established under this section may
be used within the jurisdiction concerned, as its chief executive
(or commanding general in the case of the District of Columbia)
considers necessary, but it may not be called, ordered, or drafted
into the armed forces.
(d) A member of a defense force established under subsection (c)
is not, because of that membership, exempt from service in the
armed forces, nor is he entitled to pay, allowances, subsistence,
transportation, or medical care or treatment, from funds of the
United States.
(e) A person may not become a member of a defense force
established under subsection (c) if he is a member of a reserve
component of the armed forces.
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I think pretty much anything besides these State-sanctioned, federally approved organizations will not be tolerated.
 
(a) In time of peace, a State or Territory, Puerto Rico, the Virgin Islands, or the District of Columbia may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c)
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I don't see anthing there that can be construed as a limitation on private individuals forming a militia unit within the meaning of the unorganized militia provided for in Title 10 U.S.C.
 
It just wouldn't have any legal recognition, and MAY have some legal problems.
A typical anti-paramilitary organization statute prohibits a group of private individuals from convening under the guise of a military entity without permission from the state. For example, the Alabama anti-paramilitary organization statute states, in relevant part: Any two or more persons, whether with or without uniform, who associate, assemble or congregate together by or under any name in a military capacity for the purpose of drilling, parading or marching at any time or place or otherwise take up or bear arms in any such capacity without authority of the governor, must, on conviction, be fined . . . .
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Definitely it wouldn't get you absolved from gun control laws.

It is clear, therefore, that the state has the power to regulate private militia. Thus, private individuals banding together under the guise of forming a militia and legally coexisting with the state-regulated militia can be lawfully proscribed. It would be logical to conclude, therefore, that today's paramilitary organizations, which maintain absolutely no affiliation with the state, can be constitutionally regulated. Paramilitary organizations will certainly assert, however, that their right to exist as a militia independent of the "state" militia, and free from government regulation, stems from their general right to bear arms granted by the Second Amendment. [Page 1634] The Court has ruled otherwise, however, proclaiming that, with regard to the militia, the state maintains the power to regulate the possession of arms.
...
However, it has already been determined, under Presser v. Illinois, that the state governments, not private citizens, are endowed with the power to establish and regulate the militia. [178] Thus, it is clear that state governments have the power to determine whether private militia's possession of arms is reasonably related to the state militia, and may constitutionally ban such possession if private militia's conduct is not reasonably related to the state militia. Thus, if the state determines that it is necessary to regulate private militia, it is logical to conclude that private militia are therefore engaging in weapons training in contravention of constitutionally permissible state restrictions on paramilitary activity.
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http://www.saf.org/LawReviews/Polesky1.html
 
It just wouldn't have any legal recognition, and MAY have some legal problems.

Quote:
A typical anti-paramilitary organization statute prohibits a group of private individuals from convening under the guise of a military entity without permission from the state. For example, the Alabama anti-paramilitary organization statute states, in relevant part: Any two or more persons, whether with or without uniform, who associate, assemble or congregate together by or under any name in a military capacity for the purpose of drilling, parading or marching at any time or place or otherwise take up or bear arms in any such capacity without authority of the governor, must, on conviction, be fined . . . .
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State laws regulating private militia groups aren't worth the paper they are printed on. They are in conflict with the Federal Law on point, and with basic constitutional provisions on freedom of assembly as per the first amendment, RKBA as per the second amendment, etc.

Unless the State can prove intent to commit a terrorist act, private militia groups are perfectly legal under Federal law, as per Title 10.
 
You might want to read that link I posted - deals with exactly this.

Anti-paramilitary organization statutes violate the First Amendment rights to freedom of speech and association. Anti-paramilitary training statutes, on the other hand, do not violate the First Amendment because they intend to protect public safety, not suppress militia expression. In addition, such training cannot be protected by the Second Amendment right to a well regulated militia: the state has not conferred this distinction on paramilitary groups, and their possession of arms is, therefore, not reasonably related to the maintenance of a well regulated militia.
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I am not very familiar with this issue, but from what I read there, I would bet my money on the state laws in this case, AND that the feds would not help you. It is from 1996 though, maybe precedence has changed?
 
Presser is a shaky precedent upon which to base an argument that States can regulate a private militia today as per the legal scheme in effect in Illinois in 1885.

The Court in Presser stated: Unless restrained by their own Constitutions, State legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States.

The Court based their decision on the Federal Militia Act extent at the time.

The Court found Illinois law was not in conflict with the constitutional provisions giving Congress the power to regulate State militias and not in conflict with the 2nd Amendment since it did not prohibit citizens from keeping arms to an extent that would prohibit a State from forming a militia.

Since then, Congress has used title 10 to set forth what it will allow in terms of State militia. Congress made specific provision for an “Unorganized Militia." I think that assembly and drill is legal on the basis, even in the face of State law to the contrary.

I doubt that a modern court would, in the face of a 1st amendment challenge, uphold a State law prohibiting a privately formed militia on "public safety" grounds absent a clear indication that intent to commit a terrorist act or insurrection were present.
 
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