Question about the 2nd Amendment (well regulated militia)

[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]

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.

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]

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/2005/06/militia_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]

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]

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.

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.

 

[Webleymkv]

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?

I can't speak for Antipitas and Tennessee Gentleman (though I am interested to see their replies).

It would appear to me that while the preferatory clause is not meaningless (I believe that the original purpose of the Second Amendment is still a valid one), neither is it a condition on which guarantee of Second Amendment rights hinges. Therefore, I would say that while the purpose of the Second Amendment is to guarantee the right of the militia to be armed, it also guarantees the rights of all the people to be armed.

 

[Tennessee Gentleman]

If the militia is a completely dead issue,

It is a dead issue as to the individual RKBA. Prior decisions and law was interpreted to mean that the right was related only to service in the militia and not for personal self defense.

Isn't the preservation of the ability to raise a militia, inherent in the amendment?

Yes and the states can still do it if they wish and arm them too but they don't need to because of the National Guard.

what about all that talk by the court of resisting a tyrannical government?

Dicta. The belief then (1789) was that we would have little or no standing army and that the state's militias would resist tyranny as they would be more loyal to the state and would resist a tyrannical central government. Since the militias would be larger than the standing army and controlled by the states the central government would not be able to take over.

Or are you suggesting that the national guard would do that on our behalf?

If it came to that yes, but it would not because of our democratic institutions.

 

[Tennessee Gentleman]

arming the militia was the purpose of the Second Amendment.

Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.

Here is a good video: http://www.youtube.com/watch?v=jPBm_Tk08lo&feature=channel and even though the Professor is not progun he is historically correct.

 

[Webleymkv]

Quote:
Originally Posted by Webleymkv
arming the militia was the purpose of the Second Amendment.

Actually the 2A was the result of fears by the anti-federalists that under the articles of the COTUS that the federal government had taken control of the militias and the states were afraid that the states militia would be disarmed.

So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia and thusly ensures that the militia can be armed.

 

[Tennessee Gentleman]

So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.

Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias. The state's choose to (probably because of cost) require the members of the militia to provide their own arms. Sometimes however, the state would provide arms to those who had none. Today, that militia is the National Guard.

 

[Al Norris]

... 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.

Remembering that the prefatory clause was but one explanation, then yes, this is loosely correct.

I say loosely, because at that time, it was necessary for folks who lived out in the frontier, voluntarily associated and trained with one another. This was the local militia.

Often, a call to arms was given by the local magistrate or sheriff (for those jurisdictions that had them), when needed to enforce local laws against villains, ruffians or Indians (there were no such things as police, as we know them now). The call to arms was answered by the local people acting as a militia.

That was then. Nowadays, most States have legislation in place to call up the militia, even if never used.

Isn't the preservation of the ability to raise a militia, inherent in the amendment?

Preserving the Right of the People to keep and bear arms, is integral to the authority of the State to call up a defensive force in case of invasion. This authority of the State is over and above the abilities of the US Armed Forces and the National Guard.

This also answers your part about resisting a tyrannical government. How?

The thing to keep in mind is that at the time this nation was founded, people trusted their local (as in State) government much more than this new creation, the central government (as it was called in those times). Most were not concerned over rights violations by the States. It was the Federal Government that people feared. In the context of the times, these thoughts were undisputed.

Nowadays, I suppose a scenario could be made that the Feds turned against the people and the State called the upon its citizens to defend the State. If the citizens agreed with this reasoning, then they would pose a huge obstacle to a federal takeover. However remote this possibility may be, the RKBA would stand in its (the States) stead.

However, I don't believe the scenario, above, would actually play out in that manner, as we would effectively be in another civil war. Not something to think lightly upon. Also something off topic to this thread.

 

[Webleymkv]

Quote:
Originally Posted by Webleymkv
So by ensuring that the government could not disarm the people (who made up the militia), the Second Amendment ensures that the Federal Government could not disarm the militia.

Militia of the state. The state through it's elected government had raised and armed militias (going back to their colonial charters) and 2A protected those militias.

While the Second Amendment did indeed protect the state militias, it did so by protecting the rights of the people (who comprised the militia). It is impossible to disarm the militia if you cannot disarm the people who compose it.

 

[maestro pistolero]

TG,

Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

Assuming arguendo that the militia is dead, isn't this nevertheless exactly the kind of contribution to the security of the state that the second amendment was designed to protect?

 

[Tennessee Gentleman]

it did so by protecting the rights of the people (who comprised the militia).

No I think the preferatory clause protected the right of the state to arm the militia (so the Feds couldn't disarm it) and that the operative clause protects the right of individuals to bear arms in their own personal self defense.

Again, how would you characterize the capacity in which citizens would serve, such as the ones mentioned in the Nordyke opinion, when defending the country against foreign invaders, as described by the court?

I wouldn't characterize the capacity at all. Since the advent of nuclear weapons, our possession of them has made such a foreign invasion impossible. We will not fight an enemy of the United States with a militia but a standing army, and navy (or air force).

Two things killed the militia; first most Americans do not like military service and didn't want to serve (this attitude is where the term "unorganized militia" first came from, which was created to get people out of serving in the militia), and second the nature of modern warfare rendered them obsolete.

 

[44 AMP]

fuel for discussion

I think we would do well to remember that the Founders considered our right to arms, assembly, free speech, and others, as "natural" rights, frequently expressed as "God given rights". In other words, rights that we, the people (as individuals) possessed, simply because we are living breathing human beings. And they considered these rights as something separate from rights pertaining to the "state".

And that the amendments of the "Bill of Rights" did not, and do not give us anything we did not posess before it was written. The BOR is a listing of restrctions, what the government is not allowed to do, and why.

Consider the important phrases such as "Congress shall make no law..." and "shall not be infringed", among others.