Militia question 1

[CFLarsen]

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
Second Amendment.

We've had threads about the right to bear arms. I would like to hear more about this "militia" thingie, and will open 4 threads. Let's keep it on track for once, shall we?

A militia is a group of citizens organized to provide paramilitary service. The word can have four slightly different meanings:

1. an official reserve army, composed of non-professional soldiers;
2. the police in Russia or East European countries;
3. the entire able-bodied population of a state, which can be called to arms against an invading enemy, or;
4. a private, non-government force, not necessarily directly supported or sanctioned by the government.

Wikipedia

I believe we can skip bullet 2, since we usually discuss the US amendment.

The question is:

Who regulates this militia?

 

[Ranb]

The militia should regulate itself, like the Army does.

Ranb

 

[Jocko]

The militia should regulate itself, like the Army does.

Ranb

Let me punctuate that correct answer with a "duh, Claus."

 

[shanek]

Who regulates this militia?

The militia members. This language is taken straight from the Articles of Confederation, which describes a "well-regulated" militia as one that is "sufficiently armed and accoutered." Congress is given the power in Article I Section 8 Clause 15 to call forth the militia, and in Clause 16 to organize, arm, and discipline them, but only for governing the part of the militia under the direct employment of the United States.

Now, a question for you, Claus:

How is this point relevant, given that the Bill of Rights does not enumerate any powers to the government and nothing in Article I Section 8 gives Congress the power to restrict firearms ownership among private citizens?

 

[Wolverine]

Who regulates this militia?

The first clause explains that this right helps further a "well-regulated militia," a legal term of art that means "the body of the people capable of bearing arms"

Source

 

[Mycroft]

Originally posted by CFLarsen
The question is:

Who regulates this militia?

This militia is the National Guard. At least that's how our Supreme Court has interpreted it in the past.

 

[shanek]

About Congress's powers over the militia:

The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states.

—Joseph Story, Commentaries on the Constitution, §1202

And on the Second Amendment:

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

—Ibid, §1890

 

[shanek]

This militia is the National Guard. At least that's how our Supreme Court has interpreted it in the past.

Constitutionally, the National Guard can only be the part of the militia employed by the United States. It doesn't encompass the entire body of the militia, which, as Wolverine and I both pointed out, is simply the armed body of the people.

 

[Wolverine]

Re: Re: Militia question 1

This militia is the National Guard. At least that's how our Supreme Court has interpreted it in the past.

We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.

....

The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.

USA v Emerson
No. 99-10331 - 11/02/2001

 

[geni]

Recent militry history has sown that for the most part militias function quite well with no top down control.

 

[Sushi]

Re: Re: Militia question 1

Now, a question for you, Claus:

How is this point relevant, given that the Bill of Rights does not enumerate any powers to the government and nothing in Article I Section 8 gives Congress the power to restrict firearms ownership among private citizens?

Just repeating this so hopefully Claus will get this drilled into his head (although I fear it's mostly empty space).

 

[Ed]

I'll post here since what I have to say prempts the other threads on this topic.

Even a cursory reading of the thoughts of the founders on the topic makes blindingly clear that they believed that the population at large had a right and responsibility to arm themselves, each person individually. While I do not have an encyclopedic knowledge of their writings, I would wager that one would be hard pressed to come up with any clear contradictions to the principle.

This is not surprising when one considers the nature of the population, where they came from, and under what circumstances they left. They had an abiding mistrust of governmental authority, an attitude that forms part of our race memory.

The argument against gun ownership, on constitutional grounds, seems to primarily revolve arouns the word "militia". Again, reading the original thoughts, it is very clear that they thought of us all as the militia. Playing word games does not obviate the mass of writings where this is made clear. Finding one contrary example is simply sophistry.

I hesitate to get into any discussion of this topic with Europeans. They (broad generalization) seem to have a sensitivity to the history and precedents of all cultures aside from that of the US. They have a hard time getting through their heads that we do indeed have a culture and that it includes firearm ownership. Superior, distant attitudes notwithstanding, those are the facts.

If one looks at legislation in this country since, say the first term of Clinton, one can see that the right to bear arms has increasingly been affirmed on State levels. Witness the growing number of states that have written into their constitution this right, mercifuly clearer than the wording of the Second Amendment. Further, there is a growing move to make the carrying of a weapon legal. I believe that that is a fact for the majority of states today.

So, one might argue the words (and current definitions and useages are useless in this regard) but the fact remains: The US has a culture wherein firearms play a part. While the edges of these rights may expand or contract over time, the core is going to be with us for a long time. That is the reality.

BTW, I am a gun owner. I probably own more than most on this forum but I don't make a big deal about it. I am also a Benefactor Member of the NRA which I did for the simple reason that anti-gun organizations spout nonsence and emotion and really need a counter balance. I have hunted but have not for many years though I absolutely support the right to hunt. I think that much as I believe children should have sex education, they should be educated on firearm safety. The opposition to this by liberal groups is tantamount to murder, IMO. I get hunting licenses (big game, small game and Bow) as a matter of principle though, as I said, I don't use them. Frankly, I think that I am pretty representitive of the average guy in the US (better endowed though).

One other thought: I also believe that massive and manditory prison sentences should be meted out to anyone who commits a crime with a firearm. Again, an obvious step largely ignored by the anti-gun crowd. I suspect that their agenda is disarmament, not solving a problem. Makes them suspect.

So, what is this discussion about again? What the meaning of "is" is?

 

[Sushi]

James Madison:

"Congress shall never disarm any citizen unless such as are or have been in actual rebellion."

"Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation."

"A people armed and free forms a barrier against the enterprises of ambition and is a bulwark for the nation against foreign invasion and domestic oppression."

 

[Tmy]

Its clear to me. People should have guns cause we may need them to help defend the country.

Think of the time it was written. The country didnt have this big professional military. They gained freedom from the publci coming to gether with their arms.

Did the revolutionary army ARM their soilders or did the bring their own guns??

Anyhoo. The spirt of the 2nd seems to be that if people have guns can never be enslaved by a government gone bad. And you cant count of the Natl Guard to protect you. THey are an arm of the fed govt. They control them.

 

[richardm]

Re: Re: Militia question 1

Source

Does anyone have a non-pro-gun source that confirms the use of "Regulated" in this way? The OED does not list anything like it. It may be a legal term that hasn't made it in there for some reason, but the only time I've ever seen it used to mean "Well equipped" is in pro-gun arguments.

originally posted by Sushi
"Congress shall never disarm any citizen unless such as are or have been in actual rebellion."

"Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation."

If you take up arms against the government you'll be in rebellion, so Congress would be within its rights to disarm you, if those arguments held.

 

[CFLarsen]

Just to clarify: I understand the word "regulated" as in:

Webster[/I]]Source

There has to be some sort of regulating body - I cannot see how this can possibly apply to single citizens who are not in some sort of organization that is under regulation of some sort.

 

[shanek]

Think of the time it was written. The country didnt have this big professional military.

Uh, they didn't want a big, professional military. They were fearful of standing armies as being a threat to freedom. Looking at the history since then, it appears that their concerns were well-founded.

Did the revolutionary army ARM their soilders or did the bring their own guns??

Actually, it was a bit of both.

 

[shanek]

Re: Re: Re: Militia question 1

Does anyone have a non-pro-gun source that confirms the use of "Regulated" in this way? The OED does not list anything like it. It may be a legal term that hasn't made it in there for some reason, but the only time I've ever seen it used to mean "Well equipped" is in pro-gun arguments.

As I said, in the Articles of Confederation, which is where the language was taken from, a "well-regulated" militia is described as one that is "sufficiently armed and accoutered."

Even if we were to take the word "regulate" in its more modern meaning, it's still the case that the Federal government is only limited to regulating the militia to the degree described in Article I Section 8 Clause 16.

 

[rikzilla]

Just to clarify: I understand the word "regulated" as in:

Webster[/I]]Source

There has to be some sort of regulating body - I cannot see how this can possibly apply to single citizens who are not in some sort of organization that is under regulation of some sort.

Well Claus, I believe the "well regulated" refers to the proper equipping of said militia for it's purpose:

reg·u·late ( P ) Pronunciation Key (rgy-lt)
tr.v. reg·u·lat·ed, reg·u·lat·ing, reg·u·lates

• To control or direct according to rule, principle, or law.
• To adjust to a particular specification or requirement: regulate temperature.
• To adjust (a mechanism) for accurate and proper functioning.
• To put or maintain in order: regulate one's eating habits.

To that end the 2nd says:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
Second Amendment.

"Shall not be infringed" seems to me to speak to the fact that a right to bear arms already existed in America, and the 2nd merely is recognising that it shouldn't be infringed since actively bearing a servicable weapon is the most basic activity of a militiaman.

Just MHO.

-z

 

[Cleopatra]

So far I haven't read a definite, one sentenced answer to Claus' question.

So, I repeat it. Who regulates militia? The President? The Congress? The local sheriff?? Me? You? Who?

Can we have the answer in one sentence please?