The legal Definition of a Milita

[Jeff White]

Officer's Wife said;

IIRC there was a court decision that upheld the right of the people (i.e. groups of individuals) to form a militia. Although the name(s) of the principals escapes me at the moment. Again, to the best of my memory, the corut also ruled the National Guard was not the militia of the individual states. I'm hoping one of the attorney types will either furnish a link or tell me my memory is faulty.

I'm not an attorney, but your memory is faulty. There is an 1886 decision by the US Supreme Court, Presser v. Illinois, that ruled that the states have the right to regulate militias or other private military organizations. Groups of individuals have no, as in none, nada, not one, Constitutional right to form their own militia. To date 28 states have laws prohibiting the formation of private military organizations, paramilitary training or both:

Here are the states and the relevant statutes:

States with Both Anti-Militia and Anti-Paramilitary Training Laws (7)

-Florida. FLA. STAT. ANN. ch. 870.06, 790.29.
-Georgia. GA. CODE ANN. ss 38-2-277, 16-11-150 to -152.
-Idaho. IDAHO CODE ss 46-802, 18-8101 to -8105.
-Illinois. ILL. REV. STAT. ch. 1805, para. 94-95.
-New York. N.Y. MIL. LAW s 240.
-North Carolina. N.C. GEN. STAT. ss 127A-151, 14-288.20.
-Rhode Island. R.I. GEN. LAWS ss 30-12-7, 11-55-1 to -3.


States with Anti-Militia Laws Only (17)

-Alabama. ALA. CODE s 31-2-125.
-Arizona. ARIZ. REV. STAT. ANN. s 26-123.
-Iowa. IOWA CODE s 29A.31.
-Kansas. KAN. STAT. ANN. s 48-203.
-Kentucky. KY. REV. STAT. ANN. s 38.440.
-Maine. ME. REV. STAT. ANN. tit. 37-B, s 342.2.
-Maryland. MD. CODE ANN. art. 65, s 35.
-Massachusetts. MASS. GEN. L. ch. 33, s 129-132.
-Minnesota. MINN. STAT. s 624.61.
-Mississippi. MISS. CODE ANN. $ 33-1-31.
-Nevada. NEV. REV. STAT. s 203-080.
-New Hampshire. N.H. REV. STAT. ANN. s 111:15.
-North Dakota. N.D. CENT. CODE s 37-01-21.
-Texas. TEX. GOV'T CODE ANN. s 431.010.
-Washington. WASH. REV. CODE s 38.40.120.
-West Virginia. W. VA. CODE s 15-1F-7.
-Wyoming. WYO. STAT. s 19-1-106.


States with Anti-Paramilitary Training Laws Only (17)

-Arkansas. ARK. CODE s 5-71-301 to -303.
-California. CAL. PENAL CODE s 11460.
-Colorado. COLO. REV. STAT. s 18-9-120.
-Connecticut. CONN. GEN. STAT. s 53-206b.
-Louisiana. LA. REV. STAT. ANN. s 117.1.
-Michigan. MICH. COMP. LAWS s 750.528a.
-Missouri. MO. REV. STAT. s 574.070.
-Montana. MONT. CODE ANN. s 45-8-109.
-Nebraska. NEB. REV. STAT. s 28-1480 to -1482.
-New Jersey. N.J. REV. STAT. s 2C:39-14.
-New Mexico. N.M. STAT. ANN. s 30-20A-1 to -4.
-Oklahoma. OKLA. STAT. ANN. tit. 21, s 1321.10.
-Oregon. OR. REV. STAT. s 166.660.
-Pennsylvania. 18 PA. CONS. STAT. s 5515.
-South Carolina. S.C. CODE ANN. s 16-8-10 to -30.
-Tennessee. TENN. CODE ANN. s 39-17-314.
-Virginia. VA. CODE ANN. s 18.2-433.1 to -433.3.

In the US as far back as colonial times, the militia has been part of the government. Militia laws were simply a way for the government to raise an armed force. The militia has never been considered to be a check on government power. The militia is the government and while congress legislating the militia out of existence might be unconstitutional under the second amendment, they could easily write a law stating that the militia was to be armed with brooms, shovels and pick axes, and that would very likely pass constitutional muster.

Article 1 Section 8 of the Constitution gives says that congress can:

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;

Article 1 Section 10 of the constitution forbids the states from keeping troops in time of peace:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Cosmoline is 100% correct our right to keep and bear arms rests completely on the part of the second amendment that says, the right of the people to keep and bear arms, shall not be infringed. There is clearly no right to be part of a militia or to bear arms as part of a militia. Congress and the governments of the several states have the power to define what the militia is and say how it will be equipped.

Jeff

 

[ConstitutionCowboy]

Yes, and note that what the militia is is not specified in the Constitution. Congress may arm what ever part of the militia it finds necessary, may define what ever part it decides to arm and/or employ, but cannot "define" the rest of us out of the picture.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[shield20]

What the Militia are was well-understood, there was no need to define them - they already existed. They were well-documented entities, with accepted functionalities, structures and operations, which were incorporated into the federal system. And Congress was not given power to create (obviously) them, nor to recreate OR redefine them as THEY see fit.

It is however spelled out that THE Militia of the several States must be armed, they must be organized, and they must be disciplined. They also consist of the body of the people - armed (and we/they know/knew what that means too - with guns, swords, pistols and such), and trained (all that 'well regulated' stuff). The Constitution also says that they - THE Militia of the several States - are necessary - permanent, required. And a part can be used in federal service for (only) the particular purposes the Constitution allows. Also, the States must maintain the Militia(s) if need be, 'cause the Constitution says they are permanent because the liberty of the people depends on it.

Anyway, as I said up above, when we get rid of the militia clause, here is what we get:

The Supreme Court's choice last week to hear the challenge to the District of Columbia's ban on handguns is expected to lead to its deciding an issue that long has divided constitutional scholars and society: Does the Second Amendment protect a right of individuals to have guns?

Yet, there is no need for the Supreme Court to face that divisive question because it should hold that even if there is such a right, the government can adopt reasonable regulations of firearms.
...
But there is no need for the court to choose, because even if the Second Amendment is regarded as creating an individual right to own firearms, it is surely not an absolute liberty. It seems obvious that the government can keep people from having particularly dangerous weapons, such as assault rifles, and keep those with criminal records from having guns. Just as free speech has never been regarded as absolute, nor should an individual right to bear arms be seen as precluding all government regulation.
...
The government should have the same ability to regulate firearms as other property. Under this view, gun-control laws, like the District of Columbia's, should be upheld so long as they are a reasonable way to attain a permissible purpose.

Under this approach, it would not matter which view of the Second Amendment is adopted by the Supreme Court. Under either, the District of Columbia law would be upheld because the government has a legitimate interest in discouraging gun violence, and prohibiting ownership of guns is a reasonable way to attain the goal.

http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20071127/OPINION01/711270352/1036/OPINION

 

[Markbo]

"No free American needs any special reason, excuse, license, or permission to possess firearms or to go armed at home or in most public or private places, because these are not only constitutional rights, but also constitutional duties. The Constitution is every American's reason, license, and requirement to be armed."

Who is this quoted from?

This is all very interesting and enlightening. Thank you all for participating.

 

[collateral]

This is why linking the RKBA to militia membership is a very bad idea. Forget the militia.

I hope that if a disaster comes your way, the militia doesn't forget you should you need its help. Most of our military and a lot of the national guard are overseas. The feds have already shown their complete incompetence through their failure to do anything right in Katrina.

 

[shield20]

That quote is from Dr Edwin Viedra, who wrote an entire essay on this subject - the importance of THE Militia, and the duties of the people and the govts in keeping it (us) armed.

Well worth reading.

http://www.newswithviews.com/Vieira/edwin16.htm