2A Question - This one's a little different


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cbrgator
November 13, 2008, 02:56 PM
In terms of the collective right argument:

If I'm not mistaken the collective right argument is that we have a right to bear arms collectively for our common defense which they associate with membership in a militia. They say today's militia equivalent is the National Guard.
The national guard is in fact a military force, not a militia force. Would that really need LEGAL protection of the 2A to possess firearms? Is the national government really going to take away the National Guard's ability to have guns? It seems essentially just plain stupid to me to say that the 2A protects the National Guard's right to have firearms when its basically in their job description.

So my question is: "Are anti-2A advocates essentially saying that the 2A protects the National Guard?"

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ArmedBear
November 13, 2008, 03:06 PM
"Are anti-2A advocates essentially saying that the 2A protects the National Guard?"

Yes.

They claim that the 2nd Amendment protects the right of States to have armed forces, and not to have them disarmed by Federal forces.

Why "people" means "states" in this amendment but nowhere else in the Constitution, and what this has to do with the National Guard, which has been Federalized for a very long time, are questions that they can't answer. However, they can give elaborate non-answers.

cbrgator
November 13, 2008, 03:13 PM
But troops in the National Guard can be federalized on a whim by the Governor. Often happens during wartime. So basically the 2A is protecting the government from disarming itself?

Do you really need to protect individuals who can be called on to defend this country? The government isn't going to disarm a force charged with domestic defense. So ridiculous.

ArmedBear
November 13, 2008, 03:25 PM
Don't assume that religious fanaticism is susceptible to rational argument.

Furthermore, these are lawyers. Lawyers are a necessary part of a free society. However, they're generally trained to obscure what would seem to be obvious facts, not to find the truth.

PershingRiflesC-7
November 13, 2008, 03:27 PM
As posted by cbrgator:

But troops in the National Guard can be federalized on a whim by the Governor.

Federalizing the NG is done by the National Command Authority, i.e. the POTUS, not the governor of the state.

ArmedBear has the core argument: "people" cannot mean different things in the BOR. However, as to "federalization of the NG for a long time", there is somewhat of a disagreement as to the degree. The NG gets federal money and federal equipment while the state authority retains "command" for responses to local needs and normal operations/training but the NG is subject to call up by federal authority for national needs without recourse to the state authority.

Sinixstar
November 13, 2008, 03:28 PM
I haven't heard that specific argument before - but it wouldn't surprise me if someone went out on that limb. It depends on the interpretation of the word "militia".

ggarfield965
November 13, 2008, 03:28 PM
And it pays well xD

ArmedBear
November 13, 2008, 03:36 PM
the NG is subject to call up by federal authority for national needs without recourse to the state authority.

In plain language:

States get cast-off equipment from the US Military, for use by their National Guard troops.

Governors can use the National Guard for internal purposes like disaster relief.

For any real military missions, the National Guard becomes a Federal entity, and provides no check and balance against a Federal military takeover of a state -- in fact, it can be readily used to help.

Now I don't think this will happen tomorrow or anything. However, the "collective rights" believers claim that the 2nd Amendment was intended to prevent Federal military takeovers of States by assuring that States would have their own military forces to use against such Federal action.

For the NG argument to hold any water, the National Guard would have to be truly independent, whereas it is, as Pershing said, under direct Federal authority. So even if one accepts the whole premise of the "collective right" dogma, the whole argument from their side falls apart under current realities.

Jeff White
November 13, 2008, 03:39 PM
But troops in the National Guard can be federalized on a whim by the Governor. Often happens during wartime. So basically the 2A is protecting the government from disarming itself?

No governor can federalize the national Guard. Only the president can do that. But even back in the days before anyone ever heard of the National Guard the president could federalize the militia.

Article II Section 1 of the United States Constitution says:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

The collective v. individual argument was settled last June in the Heller decision. In Heller the USSC found an individual right to keep and bear arms exclusive of membership in a militia. I wouldn't even worry about any collective argument. The collective argument was always a bad argument as Article I Section 8 of the United States Constitution says that congress has the power to:

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;

If you base your argument on your right to keep and bear arms on your membership in the militia, then congress has the power to write a law telling you what kinds of arms you may keep. All of the BS you see on the forums about membership in the militia conveying the right to own standard Infantry weapons is just that...BS. Congress has the constitutional authority to say that the militia shall be armed with broomsticks and shovels and that would be all the arms a militia member could legally have.

cbrgator
November 13, 2008, 05:38 PM
My mistake about the governor, but either way. Do I have a valid point? That the 2A would not exist to protect against disarming the National Guard because the government wouldn't do so when they in fact rely on them for military service both domestic and abroad? And therefore, by default, it HAS to protect individuals because it just wouldn't make any sense the other way around?

(I am taking Constitutional Law and we are about to get to the 2A on Monday so I want to make sure I have all my arguments squared away.)

ArmedBear
November 13, 2008, 05:51 PM
You'd be far better off reading the Heller decision, and the documents to which it refers.

mljdeckard
November 13, 2008, 05:53 PM
My national guard uniform says U.S. Army on the front of it. (Albeit in velcro now.)

cbrgator
November 13, 2008, 06:04 PM
You'd be far better off reading the Heller decision, and the documents to which it refers.

I've read it. And we'll be reading it as a part of class as well. My question is not my only argument. Just an additional point that I thought of. Heller is a legal decision, but people disagree, and it can be overturned.

What I am getting at now is like a fringe argument, in addition to ALL the other points.

ArmedBear
November 13, 2008, 06:08 PM
AFAIK all you want to find is in some of the amicus briefs.

cbrgator
November 13, 2008, 06:09 PM
All i want to know is... Does my argument hold water?

everallm
November 13, 2008, 07:14 PM
The point ,whilst technically interestingly to plumb, is now moot as the SC defined 2A as an individual right and divorced the whole comma/militia foolishness....EXCEPT.

This will become most relevant as/when/if we finally get 2A formally incorporated hopefully either via the Chicago or California (Nordyke) actions.

cbrgator
November 13, 2008, 07:23 PM
I know what the SCOTUS said, but I am taking Con Law, and the merits are going to be argued on both sides. We dissect the majority opinion and the dissent. I know they held its individual, but we will be arguing for and against that point anway. So I shall repeat....

All i want to know is... Does my argument hold water?

GEM
November 13, 2008, 07:30 PM
Don't assume that religious fanaticism is susceptible to rational argument.

I think that is why in part the GOP lost the election - :D

Sorry. My cynical view is that both parties have folks who don't understand liberty. They just differ on what they are nuts about.

TEDDY
November 13, 2008, 07:38 PM
the National Guard was started in 1903/6.as the volunter milia did not work out.in 1934 the NG was federalized as part of the army reserve.for yrs the armories were called (state) national guard.look now and they say army national guard.in 1917 it was disbanded because it could not be use beyond the border.it was restord at end of war.:uhoh:

unspellable
November 13, 2008, 09:11 PM
The 2A places a restriction on the federal government. (state too if incorporated.) There would be no point in restricting the federal government's power to ban its own possession of arms. The founding fathers were a little brighter than that. It follows that the 2A must protect the rights those individuals or organizations that are not under the direct legitimate control of the federal government. This rules out the military, national guard, or organized militias. This leaves the individual person as the party protected by the 2A. The first claus of the 2A merely establishes that they will provide an available manpower pool if legitimately called up. It should also be noted, that any federal official, officer, or employee is specifically excluded from the militia.

It can be argued that the 2A protects the right of the militia during times it is not called up as well as the individual.

The national guard is an organization equipped by the federal government and is thus not a militia under the meaning of the 2A, but rather a military auxiliary, and has no need of by the 2A. See the circular argument above.

cbrgator
November 13, 2008, 09:35 PM
Unspellable, thank you so much. That is exactly what I was advocating.

sailortoo
November 14, 2008, 12:00 AM
One more facet of the National Guard/Militia question. The Second Amendment says specifically "... the People to Keep and Bear Arms..."; that does not include the National Guard, which "Keeps" all arms locked up in an Armory, to be issued only for practice or specific duty (call up). The National Guard may only "Bear" arms, but not "Keep", only the individual People may do that, as reiterated in the Heller decision. Good luck with your class, and be sure to take copious notes - you may need them!
sailortoo

everallm
November 14, 2008, 11:08 AM
Oh,

One point forgotten is, which militia are we talking abouit.

There's the "organized" militia and the then there's the "Unorganized militia" which is everyone else.

Since in this case we are all militia then the point is once again moot as the protection is logically therefore be extended to all.

bdickens
November 14, 2008, 01:20 PM
Didn't the Supreme Court just finish burying the "collective right" hogwash a few months ago?

cbrgator
November 14, 2008, 01:50 PM
Didn't the Supreme Court just finish burying the "collective right" hogwash a few months ago?
They sure did. Read the rest of the thread and you'll understand why I asked the question.

Is there any specific evidence that I can refer to besides Federalist No. 46 that the militia is every man capable of bearing a firearm?

sailortoo
November 14, 2008, 04:52 PM
Well, the "Founding Fathers" made a number of statements referring to who should be armed:
"The Constitution of most of our states (and of the United States) asserts that all power is inherent in the People; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
Thomas Jefferson
"No freeman shall ever be barred the use of arms."
Thomas Jefferson
"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
Samuel Adams
"I ask, sir, what is the militia? It is the whole people ... To disarm the people is the best and most effective way to enslave them."
George Mason
"A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms ... To preserve liberty it is essential that the whole body of the people always possess arms."
Richard Henry Lee
Some random samples of the intent of the Second Amendment, by the people that were the very foundation of this country and its' Constitution. I hope that these statements put to rest any conflict in your idea of what the 2A is all about. For me, there is no question what the one sentence that makes up the 2A does mean, and what it was intended to mean. The militia reference leading into the reason for ".. the Right of the People to Keep and Bear Arms ..." is to emphasize the need for all the people to always be armed.
sailortoo

iiranger
November 14, 2008, 05:52 PM
In old English Common Law, which our US law comes from, at one time the King banned football [today it would be called rugby/soccer] so that the peasants would practice with bows and arrows on Sundays after services...their "free" /recreational time... I think everyone was still Catholic at that time... In brief, everyone was subject to "militia" service. Now the old and infirm would not be hauled very far, but if the battle came your way, you could be drafted. And if you were not good with a bow, you could hold the shield and arrows... etc. Women too.

"Hue and cry" was the summons by a constable to chase a thief... help...

In the US the socialist leaders who wished to be relied upon for protection--
the government" "the police..." "you don't need a gun. You can call the police..." (ha, ha) have sought to "forget" this tradition. While early territories had "rangers", eg TX, OK, CA, NM, AZ..., and later the "ranger units" became the local military/police (Texas Rangers today)... when state hood came along, wellllllll

In the south they had some interesting laws. Each "able bodied man" [MOST of which did not own slaves] 16 to 55 was subject to one NIGHT of service per month patrolling roads looking for run away slaves... Most were in agriculture and had to furnish their own horse and time and at the end of the night were worthless for the next day... Some rich SOB would have his slaves host a morning breakfast... And the cranky patrollers ...

Yes, it is a lawyers device (necessary evils, lawyers...) to deny this "ranger" /"self defense" function in favor of the well drilled and regulated "National Guard." So if the Guard goes, then who protects??? I think Col. Colt got the title by raising a "regiment" (at his OWN expense... Uncle Sam loves that... cf Black water today). A. Lincoln served with the "IL volunteers." And today the Godless would deny the individuals' rights to "self defense" with best tools available. It is a sewer and the "head" of the sewage system is a socialist no unlike Woodrow Wilson, W.J. Bryan, etc. Frank Roosevelt. L. Johnson. B. Clinton. Hopefully they remember '94.

I always return to Will Rogers. He drew himself up and said, "I do not belong to an organized political party..." They he smiled broadly and continued, "I'm a Democrat..." luck to us all...

cobra2411
November 18, 2008, 02:13 PM
The Dick act of 1903 establishes the National Guard as an organized militia and the rest of us as an un-organized militia...

We are for all intents a militia of one...

And in it's original context well regulated simply referred to being well behaved or disciplined.

2A does not refer just to the Nat Guard, but to all able bodied free men capable of bearing arms.

cbrgator
November 18, 2008, 06:29 PM
I am having trouble finding the actual text of the Dick Act. Can anybody help with that?

cobra2411
November 18, 2008, 06:41 PM
Here's a place to start...

http://www.spiritus-temporis.com/militia-act-of-1903/

cbrgator
November 18, 2008, 07:38 PM
Yea that text is the wikipedia text as well. I am looking for the actual Act and not just its explanation.
I can't use it if I can't cite to it.

Cyborg
November 18, 2008, 09:19 PM
So my question is: "Are anti-2A advocates essentially saying that the 2A protects the National Guard?"
The anti-2A advocates are willing to argue out of whichever side of their mouths they need to in order to reach their goal of disarming the American public. These are the same people who disengenuously turned Jefferson's "wall of separation" quote on its head and used it as a pretext to infringe on our freedom of religeon. They have no morals and few scruples. They have an agenda and are entirely willing to do whatever is needed to further it. They believe their motives are pure so their methods are of no consequence. As Ghandi said man will be judged not by his acts but by his intentions. For God alone reads our hearts.

cbrgator
November 18, 2008, 10:49 PM
Can anybody find the text of the Dick Act? Anybody? Please? I'll be your best friend!

cbrgator
November 19, 2008, 02:12 PM
Humph

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