2nd Amendment: For the militia, or because of the militia?

[caribou]

''Every able Bodied Man'' is the 'Militia', so that is you, me, we.

The citizens right to Bear Arms and to assemble peacably.

At the Virginia Constitutional Convention, George Mason was asked ; '"I ask, sir, what is the militia? It is the whole people, except for a few public officials." — George Mason

"The militia, when properly formed, are in fact the people themselves, ... all men capable of bearing arms;..."
— "Letters from the Federal Farmer to the Republic", 1788 (either Richard Henry Lee or Melancton Smith).

And the 2nd Amendment is clear that; '' 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''.

See, the 2nd A states VERY clearly that the People ARE the Militia, one and the same in reference.

 

[ofitg]

"The right of the people to keep and bear ... arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country ..."
-- James Madison, I Annals of Congress 434, June 8, 1789

The Militia Act of 1792 illustrates that the Framers desired the farmers with muskets to be a well-regulated militia.

In practice, though, the individual states ignored the federal guidelines and ran their militias as they pleased - only a fraction of the eligible young males participated, discipline was lax, and training was haphazard.
These shortfalls do not alter the Framers' original intent.

 

[AlexanderA]

In practice, though, the individual states ignored the federal guidelines and ran their militias as they pleased - only a fraction of the eligible young males participated, discipline was lax, and training was haphazard.

Yes, the annual "militia musters" turned into drunken revels and community picnics on the courthouse lawns, without even a pretense of military training. (Imagine a drunken, armed rabble in the center of your town.) That's why the local authorities did away with this and substituted "volunteer militias" that were self-selected and were thus more disciplined and dedicated.

The constitutional "universal militia" was a utopian concept that was doomed to fail in practice. Nevertheless we are left with its conceptual framework which, in the hands of the right judges, can enhance the individual right to bear arms.

 

[CoalTrain49]

In order to fully understand the meaning of the phrase, you have to go get a dictionary from 1770.... In the law, the words mean what the words meant at the time the law was written.. In 1770 the word "militia" meant "the people". This was often referenced in the letters of some of our founding fathers...

No question about that. With the system they had in place the defense was the responsibility of everyone who could fight.

Unfortunately it appears it was primarily intended for the purpose of a militia. The matter of national defense was not settled until after the war of 1812 by providing taxes for a professional federal army. At least that's the way I read it.

The problem as I see it today is we don't rely on each state's militia or the average citizen to provide for the national defense. The states Nat'l Guard was federalized in 1994 through Title 10. That basically makes them a federal military force. It has been used against state authority, demonstrations and riots in the past.

https://www.law.cornell.edu/uscode/text/10/12406

Trying to get ones RKBA restored using 2A is far-fetched. The Supreme court won't touch it.

 

[grampajack]

Actually it is a pretty simple constitution. One that allowed the people to govern them selves through their state representatives.

It was a matter of money. The federal gov't was almost broke in 1812. They had to entice people to enlist by giving them grants of land.

The federal gov't had virtually no army or navy in 1812. The reason is congress didn't want to spend the money to do that. Actually they didn't have the money to do that until around 1815. To suggest that it was the plan from the beginning isn't exactly supported by the articles.





Sounds to me like federal gov't didn't really want to pay for having an army employed for longer than two years. Why else would they leave the training and appointment of officers up to the states. Per the articles.

The fact is the federal government was relying on the state militias for a national defense until after the war of 1812. The wording in 2A and Art 1 supports that premise. It just didn't work out real well.

A lot of people will agree with me about this. Maybe not too many here though.

I don't think it's a real good idea to push the SC to interpret this, being constitutional scholars and all.

It was the plan from day one, and it's the law. It had and still has nothing to do with money. Standing armies are illegal, and they have been since the very beginning.

A few excerpts from Article 1:

12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Again, the fedgov is responsible for paying for the militia, so it is NOT a cost saving measure by any stretch of the imagination:

16: 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;

 

[caribou]

Militias are NOT the National Guard.
In Alaska, when the Japanese invaded the Aleutian islands,1942, the 'Militia' was called up. Every Man from 16 to 60+ signed on in villages and a few city's all over Alaska.The command system was whoever the local villagers voted to lead them, the small arms were what they had or brought with them.
The U.S. gov, recognized the Alaska Militia, then US Army came through, organized and inducted these very men who had mustered with their own arms to defend Alaska to THEN join the Alaska Territorial Guard. After induction from volunteer Militia to Guardsman,hey received a few days training, pay and an M-1917 Enfield rifle as well as 200 or so rounds in bandoleers to be taken home and saved for fighting the Japanese, and had to be brought to Muster or face disciplinary action. But the Army also provided as much precious ammo to these men as they could use, so they could continue to be out on the lands and seas, hunting, trapping and observing. Ammo was very hard to find during WWII in AK, and the system worked.
There was a very clear distinction between 'Militia' and the federal 'ATG, Alaska Territorial Guard', that became the Alaska National Guard.The Federalization of any armed force transforms it from Militia to U.S. Forces.
The militia is all volunteer that bring their personal arms with them, After induction, they are no longer 'militia' and fill out the numbers of men needed at the time.....just as the framers of the Constitution designed.

 

[DaveTNC]

Back in the 18th century didn't the term "well regulated" have a meaning closer to "properly performing" or "in proper order" as opposed to the way people now see it as meaning "controlled by government"?

Anyone have a 1789 dictionary handy?

 

[caribou]

Right on, Dave TNC........ In those days 'well regulated' was much Like 'regulating' a double rifle so both barrels shoot to the same point on a single set of sights , or keeping prepared and in order.....

 

[barnbwt]

Yes, the annual "militia musters" turned into drunken revels and community picnics on the courthouse lawns, without even a pretense of military training. (Imagine a drunken, armed rabble in the center of your town.) That's why the local authorities did away with this and substituted "volunteer militias" that were self-selected and were thus more disciplined and dedicated.

The constitutional "universal militia" was a utopian concept that was doomed to fail in practice. Nevertheless we are left with its conceptual framework which, in the hands of the right judges, can enhance the individual right to bear arms.

To be fair, the premise seems to have worked reasonably well in Switzerland, but as part of a central standing military via compulsory service. That concept was anathema to the Founders with their skepticism of professional militaries, but it's clear in retrospect that some period of such service is the only way to instill the kind of professional discipline necessary for a functional armed force (professional or otherwise). The militia were Utopian in that the means to sustain them successfully were not yet present in the nascent nation; we weren't Afghani tribals & warlords, but we also weren't wealthy cantons with centuries of development, either. Like the other handful of early ideas that were abandoned as America grew, the militia was one that simply didn't scale that well* in our gigantic country (imagine every township the size of 1770's Boston having its own local fighting force, and trying to cobble together a national defense strategy, lol. The reality of our size dictated a more centralized and easily-wielded fighting organization was needed, hence the standing army...and hence it's inevitable growth & foreign mis/adventure, just as we were warned. Still better than the alternative, though).

*the other big original idea that went by the wayside was the notion that some states would be permitted to rise or fall on the merits of their governance, but was quickly seen as a flaw by the federal government that was convinced the nation could only continue to exist as it was (thus, no local nullification of laws, increasing incorporation of the bill of rights against the states, most importantly no secession, and most recently...no bankruptcy. Historically, as sovereign powers, states would be forced to renege on debt they took on foolishly & deal with the consequences, but today it is almost taken for granted that states like Illinois or California will be bailed out by the feds no matter how much they overspend)

TCB

 

[barnbwt]

Actually it is a pretty simple constitution. One that allowed the people to govern them selves through their state representatives.

It was a matter of money. The federal gov't was almost broke in 1812. They had to entice people to enlist by giving them grants of land.

The federal gov't had virtually no army or navy in 1812. The reason is congress didn't want to spend the money to do that. Actually they didn't have the money to do that until around 1815. To suggest that it was the plan from the beginning isn't exactly supported by the articles.





Sounds to me like federal gov't didn't really want to pay for having an army employed for longer than two years. Why else would they leave the training and appointment of officers up to the states. Per the articles.

The fact is the federal government was relying on the state militias for a national defense until after the war of 1812. The wording in 2A and Art 1 supports that premise. It just didn't work out real well.

A lot of people will agree with me about this. Maybe not too many here though.

I don't think it's a real good idea to push the SC to interpret this, being constitutional scholars and all.

This is a good point; the militia were still very relevant political powers, and the new government was leery of shutting them out of the process right off the bat. There was also the happy coincidence that the current arrangement of militia (whose existence was largely due to the refusal/inability of the British to properly protect the colonists against daily threats) dovetailed with the other ideals of Republican federalism, as far as being a 'distributed military.' This way the militia could be included without having to disrupt the other aspects of the governing philosophy so early on. Conveniently enough, as the new government successfully conducted affairs to the colonists' liking (which was the whole point of the revolution, after all) we became more comfortable with the professional army, and the militia fell into disuse and were ultimately abandoned. I suspect if the military had quickly become corrupt, was never funded properly, or had tried to overthrow the government early on & failed, the militia would have had new life breathed into them (and it was out of concern over that very possibility the prefatory clause in the 2nd amendment was included)

TCB

 

[RPRNY]

But the prefatory clause to the Second Amendment doesn't do anything. There continue to be posts about what people think it might have meant or what it should mean. Such Jesuitical intellectual autoerotica may be pleasing to its practitioners, but you mustn't ask the rest of us to join in.

There are no laws based on it. It requires no action. It forbids no action. It gives rise to no powers of government. It is a pleasant sentiment that at most may offer some insight on why the operative clause was added as an amendment. "Well folks, a functioning militia being a good thing, that's a good reason for forbidding government from infringing on the unalienable right of the people (and THAT defines who gets to have 'em!) to keep and bear arms".

There were no panty wasted androgynes screaming for gun control and extra bathrooms at the Constitutional Convention. The worst Tories and Anti-Federalists may have preferred a standing army controlled by a government controlled by them, but other than groups that were particularly concerned that slaves and Indians not have guns, there was no anti-gun voice. So any talk of type of militia having a bearing on whose rights to keep and bear arms may not be infringed is both Jesuitical and meaningless. The Second Amendment does not regulate not has it ever regulated the military or militia in the USA. It cannot because it does nothing. It expresses a sentiment.

Were the Supreme Court ever to hear a case in which the plaintiff argued it was unconstitutional for the federal government to maintain an armed force, which given the plethora of panty wasted androgynes that plague us today may not be so far fetched, a line or two in the decision might reference the prefatory clause of the Second Amendment as another indication that the Constitution clearly envisaged an armed body as a necessity. That's it.

 

[fpgt72]

Militias are NOT the National Guard.
In Alaska, when the Japanese invaded the Aleutian islands,1942, the 'Militia' was called up. Every Man from 16 to 60+ signed on in villages and a few city's all over Alaska.The command system was whoever the local villagers voted to lead them, the small arms were what they had or brought with them.
The U.S. gov, recognized the Alaska Militia, then US Army came through, organized and inducted these very men who had mustered with their own arms to defend Alaska to THEN join the Alaska Territorial Guard. After induction from volunteer Militia to Guardsman,hey received a few days training, pay and an M-1917 Enfield rifle as well as 200 or so rounds in bandoleers to be taken home and saved for fighting the Japanese, and had to be brought to Muster or face disciplinary action. But the Army also provided as much precious ammo to these men as they could use, so they could continue to be out on the lands and seas, hunting, trapping and observing. Ammo was very hard to find during WWII in AK, and the system worked.
There was a very clear distinction between 'Militia' and the federal 'ATG, Alaska Territorial Guard', that became the Alaska National Guard.The Federalization of any armed force transforms it from Militia to U.S. Forces.
The militia is all volunteer that bring their personal arms with them, After induction, they are no longer 'militia' and fill out the numbers of men needed at the time.....just as the framers of the Constitution designed.

I hoped that someone would bring this up...this is really the only time in modern days that a "militia" was really...used...as the framers had intended.

The Militia is not the national guard....I read it as the Militia as the army.....the People is specified to keep the guberment from getting out of hand....Take away the guns and the guberment has a free hand....all one has to do is look to Venezuela to see how well all that works. I just wonder why it does not get covered anymore then it does....oh yea...it is the outcome of socialism each and every time.

 

[AlexanderA]

But the prefatory clause to the Second Amendment doesn't do anything.

I contend that it does. If nothing else, it sets the tone for what follows. The rule of thumb is this: there is no excess verbiage in the Constitution. Every word in it was put there for a reason. The Founders were not stupid. Besides, the proper interpretation of the Militia Clause (that is, that the militia consists of the whole body of the people) makes the individual right to keep and bear arms stronger, not weaker. With the Militia Clause given due weight, every individual citizen would have the right to own a machine gun (since that's what's generally issued to the regular army). Without the Militia Clause, you can be limited to merely keeping a low-powered handgun in your home (which was the exact result in the Heller case). Justice Scalia did us no favors.

 

[RPRNY]

I contend that it does. If nothing else, it sets the tone for what follows. The rule of thumb is this: there is no excess verbiage in the Constitution. Every word in it was put there for a reason. The Founders were not stupid. Besides, the proper interpretation of the Militia Clause (that is, that the militia consists of the whole body of the people) makes the individual right to keep and bear arms stronger, not weaker. With the Militia Clause given due weight, every individual citizen would have the right to own a machine gun (since that's what's generally issued to the regular army). Without the Militia Clause, you can be limited to merely keeping a low-powered handgun in your home (which was the exact result in the Heller case). Justice Scalia did us no favors.

Again, what you want it to mean may be laudable, but both grammatically and in fact, the prefatory clause creates no powers, restricts no powers, directs no action, creates no law. It does not do anything. The Founders were not mystics from High Olympus.

It neither regulates nor defines any characteristics of the militia. It does not determine who may keep and bear arms. It is in fact excess verbiage. It expresses a sentiment, but the operative clause defines who may keep and bear arms: the people. That meant all free citizens. The whole militia thing is a red herring. If the Second Amendment were confined to the operative clause alone, its prohibition on laws that diminish the right of the people to keep and bear arms would be no less and the matter of who gets to keep and bear arms would have been somewhat more clear. Nor would we have the dubious benefits of Miller suggesting that only weapons suitable to use by the militia may be kept and born by the people.

 

[CoalTrain49]

I contend that it does. If nothing else, it sets the tone for what follows. The rule of thumb is this: there is no excess verbiage in the Constitution. Every word in it was put there for a reason. The Founders were not stupid. Besides, the proper interpretation of the Militia Clause (that is, that the militia consists of the whole body of the people) makes the individual right to keep and bear arms stronger, not weaker. With the Militia Clause given due weight, every individual citizen would have the right to own a machine gun (since that's what's generally issued to the regular army). Without the Militia Clause, you can be limited to merely keeping a low-powered handgun in your home (which was the exact result in the Heller case). Justice Scalia did us no favors.

My feeling also.

Just because we no longer have militias in common use doesn't mean the words in the constitution are no longer valid. Everything in the constitution should be valid.

In theory a group of people could form a militia, arm themselves and train to be a viable military force. I'm not proposing anyone do that but according to my interpretation of 2A it would be following the exact prescription of that amendment. Of course the federal gov't may have a different opinion and people have been prosecuted under conspiracy laws.

As a matter of fact, in 1903 the DCM was created to provide civilians an opportunity to learn and practice marksmanship skills so they would be skilled marksmen if later called on to serve in the military. Civilians given an opportunity to buy surplus rifles to train wasn't seen as objectionable 100 years ago.

Dancing around punctuation and sentence structure is a waste of time. The word militia is there for a reason.

 

[RPRNY]

"the exact prescription of that amendment".

It prescribes nothing. That you want it to is one thing. Read what it actually says. It neither prescribes nor institutes, nor regulates. It doesn't "do" anything. You will find no interpretation and no jurisprudence to support what you want it to say.

 

[AlexanderA]

Again, what you want it to mean may be laudable, but both grammatically and in fact, the prefatory clause creates no powers, restricts no powers, directs no action, creates no law.

Well, your position closely follows Justice Scalia's reasoning -- or lack thereof -- in the Heller case. Therefore it may reflect current law, but not necessarily the original constitutional theory. It's hard to say what Scalia actually had in mind. Perhaps he had to concoct this logical house of cards in order to bring Justice Kennedy on board with the final decision. The big sticking point seems to be that they didn't want to allow citizens to have the right to own machine guns. A robust Militia Clause would guarantee the right to own machine guns.

 

[AlexanderA]

In theory a group of people could form a militia, arm themselves and train to be a viable military force. I'm not proposing anyone do that but according to my interpretation of 2A it would be following the exact prescription of that amendment.

Actually, no. What you are describing is a "select" or "volunteer" militia. It lacks the attribute of universality, which is the defining characteristic of the "constitutional militia." There's a paradox here. To maintain its constitutional status, the militia must remain unorganized. In this day and age, the constitutional militia is a theoretical construct -- but a useful one.

 

[grampajack]

The militia is all volunteer that bring their personal arms with them, After induction, they are no longer 'militia' and fill out the numbers of men needed at the time.....just as the framers of the Constitution designed.

Has anyone actually read the constitution? Or even all the posts here in this thread?

Article 1 clearly states that the federal government is tasked with arming the militia.

16: 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;

 

[grampajack]

Actually, no. What you are describing is a "select" or "volunteer" militia. It lacks the attribute of universality, which is the defining characteristic of the "constitutional militia." There's a paradox here. To maintain its constitutional status, the militia must remain unorganized. In this day and age, the constitutional militia is a theoretical construct -- but a useful one.

That's why the federal government, congress rather, is supposed to arm and organize the militia, and adopt universal training doctrine. That way each state militia can be commanded by the state and still have universal weapons and training.

I truly believe that's where the "well regulated" part comes into play.

 

[hdwhit]

grampajack wrote:
Does anyone know of any historical proof either way?

Why don't you post this question in the Legal section and let the attorneys there - who are going to be familiar with Supreme Court rulings on the subject - explain how they understand what the court has said on the matter?

 

[CoalTrain49]

"the exact prescription of that amendment".

It prescribes nothing. That you want it to is one thing. Read what it actually says. It neither prescribes nor institutes, nor regulates. It doesn't "do" anything. You will find no interpretation and no jurisprudence to support what you want it to say.

Actually I found (3) SC decisions (interpretations and jurisprudence) that support exactly what I'm saying.

United States vs. Cruikshank (1875)
Although states could restrict citizens' gun rights, they couldn't outlaw guns altogether. Doing so would deprive the United States of its "well regulated militia."

Presser v. Illinois (1886)
The Court also interpreted the Second Amendment only to guarantee a state's right to maintain a "well regulated" militia, but not an individual's right to bear arms. In other words, outside of service in a state-approved militia, citizens had no inherent, personal or private right to bear arms for the purposes of hunting or self-defense.

United States v. Miller (1939)
The argument rested on the "collective" interpretation of the Second Amendment, which holds that the right to keep and bear arms exists only to guarantee the states' right to an effective militia, and is not an inherent individual right.

None of these decisions were overturned until 2010 (McDonald v Chicago) and that only addressed hand guns, not exactly the mainstay of any modern combat unit.

That's 135 years worth of interpretation and jurisprudence.

By your own admission it makes it a states rights issue. You are correct, 2A does very little, especially when it cites militias. That's it's downfall.

It prescribes nothing. That you want it to is one thing. Read what it actually says. It neither prescribes nor institutes, nor regulates. It doesn't "do" anything.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That's also in the constitution.

 

[RPRNY]

Well, your position closely follows Justice Scalia's reasoning -- or lack thereof -- in the Heller case. Therefore it may reflect current law, but not necessarily the original constitutional theory. It's hard to say what Scalia actually had in mind. Perhaps he had to concoct this logical house of cards in order to bring Justice Kennedy on board with the final decision. The big sticking point seems to be that they didn't want to allow citizens to have the right to own machine guns. A robust Militia Clause would guarantee the right to own machine guns.

He had to because Miller, in which the faulty logic you would have applied to the prefatory clause, was used by Roosevelt to create jurisprudence in support of the 1934 GCA. So, the only time that the faulty logic that the prefatory clause does anything, rather than expressing a sentiment, was invoked, it was used to restrict firearms ownership and set precedent for the Court.

 

[RPRNY]

I guess the 4th amendment is also a red herring also because there


Actually I found (3) SC decisions (interpretations and jurisprudence) that support exactly what I'm saying.

United States vs. Cruikshank (1875)
Although states could restrict citizens' gun rights, they couldn't outlaw guns altogether. Doing so would deprive the United States of its "well regulated militia."

Presser v. Illinois (1886)
The Court also interpreted the Second Amendment only to guarantee a state's right to maintain a "well regulated" militia, but not an individual's right to bear arms. In other words, outside of service in a state-approved militia, citizens had no inherent, personal or private right to bear arms for the purposes of hunting or self-defense.

United States v. Miller (1939)
The argument rested on the "collective" interpretation of the Second Amendment, which holds that the right to keep and bear arms exists only to guarantee the states' right to an effective militia, and is not an inherent individual right.

None of these decisions were overturned until 2010 (McDonald v Chicago) and that only addressed hand guns, not exactly the mainstay of the any combat unit.

That's 135 years worth of interpretation and jurisprudence.

NONE of which do anything other than what I said earlier, reference a sentiment expressed.

Show me one law created based on that clause. Just one. Show me one law overturned based on that clause. Just one. The militia is established in the body of the Constitution, not the Second Amendment. And I just explained the stupidity of Miller, which was a set up between Roosevelt and a Liberal Court to juridically ratify the GCA, thereby entirely refuting your assertion.

 

[RPZ]

Back in the 18th century didn't the term "well regulated" have a meaning closer to "properly performing" or "in proper order" as opposed to the way people now see it as meaning "controlled by government"?

Anyone have a 1789 dictionary handy?

My understanding is that regulated in this context was an artillery term. Perhaps transposed onto all individual arms, and crew served weapons of the time.