"Recall the Militia" reference.

[ilbob]

The militia is part of the government. It is not and never has been, despite the ranting of the so called modern militia movement a check on federal power.

Sort of. The militia was intended to reduce the need for a standing army, thus indirectly limiting the power of government.

And politically, it was not a trivial thing to call up the militia, and it would have been very difficult to use them long term to oppress the citizenry. Thats what a standing army was for, and why the founders feared large standing armies.

an interesting article on this very subject.

http://www.fff.org/freedom/fd0409a.asp

 

[Ieyasu]

I agree with you ilbob. Further...

The militia is part of the government. It is not and never has been, despite the ranting of the so called modern militia movement a check on federal power.

and

It's a myth that the militia was ever meant to be any check on the federal government.

Of course the militia is controlled by the government, but it's a non-sequitur to conclude, that as a result, the militia was not meant to serve as a check (within the context of an usurpation, not over policy/legislative/judicial disagreements, of course).

 

[legaleagle_45]

Ieyasu wrote:

Legal, once they're activated as Army and shipped overseas, isn't it a moot point anyway (constitutionally speaking)?

From a practical standpoint yes, but perhaps not from a political standpoint.... let me elaborate a bit and see if you agree. A standing army circa 1789 had a meaning and context much more akin to Blackwater forces of today than it does with our modern armed forces.... a professional force who's primary loyalty is not based upon patriotism, or duty to country, but to the person or entity that signs their paycheck. The political forces that inspire people to protest the war and bring our troops home and to seek that goal in Congress relate to the idea that the US armed forces are "our" boys... in that sense, the concept and reality of the US Armed Forces of today is much more akin to what the framers thought of as a "militia" rather than a "standing army". Of course, there are significant differences and I do not mean to assert an equivalency... just that our concept and understanding (and support) of a "standing army" is much different today than it was then because the nature of the concept of "standing army" has morphed into something that more closely resembles what the framers would call a militia.

Conversely, any political pressure to remove Blackwater forces is much more akin to our dislike of what the founders would deem a "standing army". A mercernary force not inspired or constrained by loyalty to the government or people it is hired to protect.

 

[Ieyasu]

Interesting observations comparing, the Founder's standing army to today's. I do agree the Founder's concept of a standing army is certainly different from today's armed forces!

Although, I think the "bring the boys back-home" mentality is not so much because today's army is closer to a militia, but rather folks who volunteer during peace time are interested in getting their college paid for, or getting job training they hope will help in getting a job after their service, or starting a second career after they get a military pension. Or in the past, in the case of conscription, everybody wants to get out!

So yes, in the sense that today's army is primarily composed of folks who want to re-enter civilian life, that part of it more resembles a militia than a standing army. (Which is probably what you mean)

As an aside, I found this passage from a letter by Richard Henry Lee to James Monroe interesting:

Whereas, if they are protected by regulars, security will necessarily produce inattention to arms, and the whole of our people becoming disused to War, render the Curse of a standing army Necessary. In this light the Indians may be considered as a useful people, as it is surely fortunate for a free community to be under some necessity of keeping the whole body acquainted with the use of Arms.

 

[shield20]

A few points... the Constitution identified an EXISTING militia - "the militia of the several states" - it did NOT create it, as "the miltia" already existed, and pre-dated the Constitution. It also did NOT allow for the RE-creation of "the militia" (NG) - that power is not granted to congress. It also recognizes "the militia" as permanent - it is "necessary" and serves specific vital rolls.

What the Miltias were, and the duties of the “Militias of the several States” are spelled out in the Constitution; their importance is further recognized, and their capabilities further protected, in the 2nd Amendment. They are, under the command of the President whenever Part of them may be called forth:
- To execute the Laws of the Union
- To suppress Insurrections, and
- To repel Invasions.

Period.

Militias are additionally recognized:
- as being NECESSARY to the security a free State.

Congress has the power to provide for arming the militia, and how was enacted in 1792 - just as it always had been - the people would arm themselves, and not subject themselves to being armed by the govt, which could just as easily DISarm them. (and hence the 2nd "the right of the people..." which further protected our right to arms which the new congress had just been given some control over in the Constitution Art 1 Sec 8 clause 16 - "Congress has the power “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them in service”. .) Some may question why the people would not mandate that the government provide the arms, or if they were really meant as a check to federal power. It is obvious! (read my by-line)...The Militia’s vital roles include its use in guaranteeing to the States “a Republican Form Of Government”; ensuring the security of a free State, and in securing to the people their freedom and their Rights; it was seen that a free State, the free people, would be pitted against one of the three threats to that freedom and injustice: insurrection, invasion, or usurpation and tyranny.


There is/was no “federal militia” recognized by the Constitution – none, ever; it is not mentioned, not recognized, not created, and not provided for. The National Guard is NOT the Militia of the several States, for it is federal in creation, federal in funding, federal in control, serves as the Reserve for the federal Armies and Air Force, it serves overseas, and in other manners not specified by the Constitution.

Yes laws have been written to make all the above re; the NG "legal" - it is a real question whether they are constitutional however.
Slowly but surely since the Dick Act, the NG has indeed usurped the role and the importance of the Militias - finalized by the Warner Act of 2007 where the Miltias have been obsoleted by all mention of their use by the President being removed ("unorganized" they are defined - but not used). We can see however the error of relying on the National Guard to fulfill the roles specified by the Constitution - as the Guards are in Iraq and Afghanistan are certainly useless to repel invasions, execute the laws, suppress insurrections, etc. here at home. State Defense Forces are the closest thing to the original Miltias we have left.

 

[Ieyasu]

The Constitution identified an EXISTING militia - "the militia of the several states" - it did NOT create it, as "the miltia" already existed, and pre-dated the Constitution.

Yup.

It also did NOT allow for the RE-creation of "the militia" (NG) - that power is not granted to congress.

Congress, didn't "re-create" the militia. It was granted the power to organize the militia, which today includes the state guard units.

The National Guard is NOT the Militia of the several States,

It is a part of the well-regulated militia when not in the service of the federal government.

for it is federal in creation, federal in funding,

Again, organized by Congress.

As for the funding... Rufus King, a Massachusetts delegate to the Constitutional Convention of 1787, when discussing the meaning of the Militia Clause in the Constitution said, "arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury..."
Regardless of how the militia is armed, it is still a militia.

federal in control, serves as the Reserve for the federal Armies and Air Force, it serves overseas, and in other manners not specified by the Constitution.

When in the service of the states, guardsmen function as militia. Once a member of a State Guard unit is ordered into active military service of the United States, that person is no longer under the command of, or serving, a State Guard unit (until they are relieved from federal service), but is now a member of the Army.

Yes laws have been written to make all the above re; the NG "legal" - it is a real question whether they are constitutional however.

Where is it unconstitutional? (Except for the fact that most people are deprived of their right to own militia weapons, but that is a different subject.)

 

[mek42]

If the Nat'l Guard is defined as being some subset of the militia while not under Federal control, couldn't one make the argument that only arms authorized under the NG's TO&E are the arms referred to in 2A? So that there is more constitutional protection for the individual ownership of certain "machineguns" than the plethora of "sporting arms" that exist?

 

[Ieyasu]

mek42, I kinda like what the Georgia Supreme Court said in Nunn v. State (1846):

"The right of the people to bear arms shall not be infringed;" The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.

 

[ctdonath]

the Constitution identified an EXISTING militia - "the militia of the several states" - it did NOT create it, as "the miltia" already existed, and pre-dated the Constitution. It also did NOT allow for the RE-creation of "the militia" (NG) - that power is not granted to congress. It also recognizes "the militia" as permanent - it is "necessary" and serves specific vital rolls.
...

EXCELLENT insight. Much to ponder, and much to change views.

 

[ctdonath]

Where is [the National Guard] unconstitutional?

The issue isn't that it's unconstitutional, the issue is that it's not the militia. A federal case (don't recall details) clarified that the NG is part of the "standing army", as it is selected, organized, funded, and controlled in a manner largely indistinguishable from a standing army (just lower-key).

 

[Ieyasu]

the issue is that it's not the militia

The National Guard is a part of the well-regulated militia.

A federal case (don't recall details) clarified that the NG is part of the "standing army", as it is selected, organized, funded, and controlled in a manner largely indistinguishable from a standing army (just lower-key).

You appear to be in transmit mode only. You posted virtually the identical same misinformation on the first page of this thread, to which I replied:
http://thehighroad.org/showpost.php?p=3753039&postcount=18

 

[ctdonath]

Pardon me if I don't happen to recall what someone wrote a week and a half ago.
I've gone thru many threads since then.

 

[Ieyasu]

Okay, you're pardoned But, then do you care to address the issue?

 

[ctdonath]

Considering the summary so far involves "the NG is standing army sometimes, militia sometimes" I'll have to attempt to defer comment until I've read the verdict (which, as the potatos are boiling and the steaks are calling, will have to wait). My prime concern is that the oversimplified summary sounds an awful lot like the militia of the Constitution: under state discipline & providence, until the feds call 'em up.

 

[The Annoyed Man]

Here's my understanding of what "Militia" is...

"Well Regulated," in the context of the 2nd Amendment militia reference, means being a milita uniformly armed with firearms of appropriate caliber and accuracy for battle, instead of some having rifles, and some having pitch forks. "Well regulated militia" means that all able bodied men over the age of 17 shall not have their right to possess or carry firearms infringed so that a uniformly armed militia may be called up, and this is separate than the need for an army. Remember that the first Continental Army had been stood up in June of 1775. The final draft of the Constitution of the United States of America wasn't sent to Congress until September of 1785 - 10 years later. In other words, the regular United States Army had already been in existence for 10 years when the language containing the words "well regulated militia" in the Constitution was sent to Congress. This plainly argues against the idea that the wording was there because there was no standing army and that the role of the militia was that of an army.

I would appreciate it if anyone smarter than I could let me know if I have it right or wrong. That shouldn't be too hard. 'Most everybody is smarter than I.

 

[Ieyasu]

ctdonath,

I'll have to attempt to defer comment until I've read the verdict

Fair enough. No rush.

My prime concern is that the oversimplified summary sounds an awful lot like the militia of the Constitution: under state discipline & providence, until the feds call 'em up.

That's pretty much correct. The states have use of their militia until called-up. When called they are no longer militia, but are a part of the Army, or whatever respective branch of service their guard unit belongs to.

 

[Ieyasu]

The Annoyed Man,

Here's what well regulated means: http://guncite.com/gc2ndmea.html#wr

This plainly argues against the idea that the wording was there because there was no standing army and that the role of the militia was that of an army.

Nobody is claiming the above. The anti-federalists didn't want a standing army at all. The federalists argued that federal authority over the militia reduced the need for a standing army and armed Americans could resist an oppressive standing army. The federalist position thus depended on the people being armed.

 

[The Annoyed Man]

Ieyasu, thanks for the reply. That makes more sense than what I said.