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2A Question - This one's a little different

Discussion in 'Legal' started by cbrgator, Nov 13, 2008.

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  1. cbrgator

    cbrgator Member

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    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?"
     
  2. ArmedBear

    ArmedBear Member

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    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.
     
  3. cbrgator

    cbrgator Member

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    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.
     
  4. ArmedBear

    ArmedBear Member

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    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.
     
  5. PershingRiflesC-7

    PershingRiflesC-7 Member

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    As posted by cbrgator:

    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.
     
  6. Sinixstar

    Sinixstar member

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    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".
     
  7. ggarfield965

    ggarfield965 Member

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    And it pays well xD
     
  8. ArmedBear

    ArmedBear Member

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    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.
     
  9. Jeff White

    Jeff White Moderator Staff Member

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    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 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:

    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.
     
  10. cbrgator

    cbrgator Member

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    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.)
     
  11. ArmedBear

    ArmedBear Member

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    You'd be far better off reading the Heller decision, and the documents to which it refers.
     
  12. mljdeckard

    mljdeckard Member

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    My national guard uniform says U.S. Army on the front of it. (Albeit in velcro now.)
     
  13. cbrgator

    cbrgator Member

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    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.
     
  14. ArmedBear

    ArmedBear Member

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    AFAIK all you want to find is in some of the amicus briefs.
     
  15. cbrgator

    cbrgator Member

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

    everallm Member

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    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.
     
  17. cbrgator

    cbrgator Member

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    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....

     
  18. GEM

    GEM Member

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    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.
     
  19. TEDDY

    TEDDY Member

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    NG

    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:
     
  20. unspellable

    unspellable Member

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    A simple way to look at it

    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.
     
  21. cbrgator

    cbrgator Member

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    Unspellable, thank you so much. That is exactly what I was advocating.
     
  22. sailortoo

    sailortoo Member

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    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
     
  23. everallm

    everallm Member

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    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.
     
  24. bdickens

    bdickens Member

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    Didn't the Supreme Court just finish burying the "collective right" hogwash a few months ago?
     
  25. cbrgator

    cbrgator Member

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    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?
     
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