A Well Regulated Militia

[Sven]

My buddy and I butt heads regularly, and though we fail to change each others' minds on seemingly anything, we continue to discuss a wide variety of subjects. In our latest exchange, my buddy "B" came back with the following perspective on the constitution:

Anyway, I am a constitutionalist, I support every LIBERAL interpretation of
the document that regulates the government (not just the subjects of the
government), and not narrow interpretations of the constitution.

In fact, perscribed in this document in the words "well regulated militia",
your view of Gun Rights would be considered a LIBERAL interpretation, not
narrow. (It is some that like the narrow interpretation that would take those
10+ magazines out of everyones hands)... the lines are not always drawn
in the sand so clear.

It certainly does seem that 'well regulated militia' is a touchstone to the debate to those who look to the 2nd Amendment as the fountainhead of our right to bear arms. Could folks out there help me understand the relevance of a Militia is in today's modern world, and how these words apply to us today?

Very open subject, feel free to chime in with your thoughts.

Thanks,

-s

 

[El Tejon]

They apply as they always have and always will.

Militia=the whole populace;

Well-regulated=well-trained.

Purpose=to fight.

The militia as codified under federal law springs forth from the body of the people. However, remember that "well-regulated militia" is a statement of purpose (as in the First Amendment) and fundamental constitutional rights are not limited by statements of purpose.

 

[Mark Tyson]

The militia seems like an archaic concept today, and justifying the right to arms can be precarious if you base your argument here. Militias are basically loosely organized, lightly armed forces composed not of professional soldiers but of parttime citizen-soldiers. Miiltias are dominated by the infantry. Technically, all US citizens physically capable of bearing arms are still in the militia. This is spelled out in federal law where the unorganized militia is differentiated from the National Guard. You're probably aware that Switzerland still has an active militia, which goes hand in hand with its gun culture.

If we consider that the police draw their ranks from among the law abiding citizens of the nation, it seems logical that the law abiding people of America should at least be allowed to have any weapon you would expect the police to possess.

What good is the militia today? With regard to foreign wars that dominate our world, not very much. However, soldiers who have been accustomed to guns and the military arts from an early age will make better fighters than those unfamiliar with weapons. The militia also acts as a final check on tyranny, should all institutional efforts to preserve the republic fail. This seems outlandish and paranoid to most people if you mention it, and it may very well be true that our rights to free speech and a free press are more important to the preservation of freedom at this time. Nevertheless, the founding fathers recognized a right of revolt in theory. Even the best professional army cannot fight forever against tens of millions of armed citizens who believe in their freedom. Even if all we have is guns - no tanks, no RPG's, no land mines - we still stand a chance.

 

[Old Fuff]

First thing, ask your buddy, “what is the militia, do you know?†Then after he stumbles around show him this:

http://www4.law.cornell.edu/uscode/10/311.html

This is the U.S. statute (law) that defines the “Militia of the United States, and I suspect both of you may be in it. During the 18th Century “people†was defined to mean adult males. That was way before women’s rights and children were legally defined as “infants.†They also didn’t have many, if any legal rights. As a previous poster said in so many words, “The militia is all of usâ€

 

[Art Eatman]

The unorganized militia has been defined by Congress. I fail to see how there can be any argument about that.

The meaning of the word "regulated" has changed since the late 1700s insofar as current usage. It did not originally mean "rules" as we use the term in today's jargon.

For instance, just today I saw another antique clock of the brand "Regulator". A "well regulated" piece of machinery meant one that functioned properly. A "well regulated" group of men could work together, smoothly, toward some common goal. Didn't matter if it were a militia group or a group of acrobats.

If you've ever been to the Smithsonian exhibit in "Old Main" of some of the early efforts at making adding machines or typewriters, you'll find that to keep them operating properly, they were "regulated", in the sense of today's automotive word "tune-up".

As to the Second Amendment in its entirety, I suggest reading the introductory lines to the Bill of Rights. The "Preamble", if you will. It states the purpose of the Bill of Rights as constraints against abuse of power by the State. Okay, fine. How can constraints on the State be turned around to mean constraints on individual citizens? I maintain that word meanings are consistent with any one writer or a cooperating few writers. "The people" cannot be here, singular, and there, of a group. Well-educated people are not inconsistent in that manner in their writings...

Art

 

[Thumper]

As Art and El T already noted, scholars agree that "well-regulated" is synonomous with "in good order."

 

[4v50 Gary]

Methinks "regulated" of the late 1700s meant drilled and officered. The drill and requirements to be a good soldier of 1700 is a lot different from today. While there are exceptions (Lexington/Concord, Bunker Hill (Breed's Hill), Bennington & Cowpens comes to mind), most showing by the militia back then was dismal. They'd skedaddled when the British regular lowered his bayonet and charged (I'd run too if I couldn't drive away).

Today, more is required of the infantryman on the battlefield and I don't think there a way the "militia" can be effective in other than a guerilla campaign.

 

[El Tejon]

Gary, it depends on where one was. In the Nort, militia companies were squared away and ready to fight. For example, in Acton, Massachusetts the village gunsmith/proto-THR member, Isaac Davis lead his men in drill and constructed a target range behind his shoppe. GEN. JOHN R. GALVIN, THE MINUTE MEN 149 (1989).

In da Souf, Loyalism was still the "in" thing because of slavery. However, Patrick Henry's outfit, "Hanover Indpendent Militia Company", fought well by all accounts.

Gary, the militia is not a being onto itself. It springs forth from the people--A People Numerous and Armed. "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such 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." Nunn. State, 1 Ga. 243, 251 (1846).

The militia is not the people; the people are the militia. "A militia shall be provided and shall consist of all persons over the age of seventeen." IND. CONST. art. 12, § 1.

The only way to defeat the militia is to crush the people. Which, of course, is why Washington is so busy in attempting to disarm us and destroy our wealth.

 

[Old Fuff]

One might notice what is going on in Iraq. A relatively small number of determined men who are armed with nothing more then shoulder weapons keep inflicting casualties on our armed forces so that American liberals will have something to whine about. They are also doing a good job of upsetting our efforts to reconstruct the country.

The above is met as an observation, not a criticism of our military in Iraq, and what they are trying to do. But it should be clear that If a major army can’t be defeated by a rag-tag force with rifles they can still do damage, and they may be successful in undermining our will to continue.

 

[Quartus]

WHAT the militia is, is irrelevant to the meaning of the 2A. It is an explanatory clause, but it does not limit the scope of the 2A. The RKBA is to "the people", NOT "the militia".


Such explanatory clauses were common in those days, and well understood by the courts of the day to have no power to limit or expand the right being discussed.

(By the same token, the definition of ARMS is not limited by the term "militia".)


Nice discussion about what a militia is, but an academic one only, having nothing to do with the scope or validity of the 2A.

 

[C.R.Sam]

Good point Quartus.
"The right of the people to keep and bear arms shall not be infringed" will stand alone as a complete sentence without the preceding example clause(modifier).

And since the term People is used to indicate individual persons elsewhere in the Constitution, it follows that people is individual in the 2nd.

Sam

 

[Old Fuff]

I agree that it was the framer's intent to insure that the PEOPLE'S right to have arms was not to be infringed. But why? Because an unarmed or disarmed "people" could not form or participate in any militia. Militiamen were required, by law, to provide their own weapon and ammunition. The only exception that was sometimes made was for those who did not have the necessary wealth. Obviously a "people" who weren't allowed to "bear arms" couldn't do this. The "people's" RIGHT was not to be infringed to insure the militia would always exist.

If the intent of the Second Amendment was to secure a militia that would be controled by the several states, and if those states were expected to provide the necessary equipment and arms, the "keep and bear arms" part of the amendment would have been left out. But that obviously wasn't the founding father's idea. The point is further supported by reading the "right to keep and bear arms" provisions in State Constitutions of the original 13 states, as well as those that came thereafter.

 

[spartacus2002]

In the eyes of the Founders, it was harder for an executive branch to go gallivanting off on foreign conquests when the military answered to the states and was primarily defensive in nature (not tactics). That is why the Constitution was written with the intent to avoid a standing army but allow for the adult males in each state to be armed.

Was it the Japanese after WWII who said they didn't seriously intend to invade the West Coast because "there would be a man with a gun behind every blade of grass" (or WTTE)?

 

[Quartus]

Was it the Japanese after WWII who said they didn't seriously intend to invade the West Coast because "there would be a man with a gun behind every blade of grass" (or WTTE)?

That was Admiral Yamamoto. He seems to have understood the 2A better than a lot of Americans!


The 2A springs from a more fundamental right - that of self defnese, and is the last line of defense for another fundamental right recognized by the Founders - the right of self government. As with other rights, these are not CONFERRED by the Constitution - they exist independent of that document. The purpose of the Consitution is to limit the Federal gummit's ability to interfere with those rights.

 

[Chaz]

The purpose of the Consitution is to limit the Federal gummit's ability to interfere with those rights.

If only the Supreme Court would follow that premise

 

[vi9er]

It is quite obvious that the founders meant "well regulated militia" as explanatory, and not limiting. Aside from the quotes, letters, and books of EVERY founding father, there is the Virginia Constitution, written by Thomas Jefferson, same dude-man who wrote the US Constitution.

That a well regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe
defense of a free state, therefore, the right of the people
to keep and bear arms shall not be infringed; that standing
armies, in time of peace, should be avoided as dangerous to
liberty; and that in all cases the military should be under
strict subordination to, and governed by, the civil power.

Here, there is a therefore thrown in, making it quite cleat that the intent was not to limit the arms only to "the militia", but to ensure arms are available to every man.

This is cool, I get to use the same thing in 2 different threads!!
Ed

 

[Zedicus]

El Tejon:
Militia=the whole populace;

Well-regulated=well-trained.

Purpose=to fight.

Actualy I think that Purpose=to Defend one's Famly, Friends, Life, Liberty & Property/Home.
to simply "fight" can easly be twisted by an anti, but to defend an individual's Famly, Friends, Life, Liberty & Property/Home is very clear cut, and near impossable to twist around into something insidious or evil sounding.

just my 2 cents....

 

[Molon Labe]

Tell your buddy the Second Amendment is irrelevant when it comes to your right to keep and bear arms. In other words, if the Second Amendment never existed in the first place, you would still have a right to keep and bear arms.

Arguing about the Second Amendment is a total waste of time. As for me, I couldn’t care less what it says, I couldn’t care less how it’s interpreted, and I couldn’t care less what any court thinks about it.

Second Amendment or no Second Amendment, I have an God-given right to keep and bear arms. Period.

 

[El Tejon]

Zed, no, weapons are for fighting. The Framers, especially the man that wrote the Second Amendment, saw nothing wrong in fighting for one's life, liberty and property. The Framers weren't not modern hand-wringers of today's media or universities.

The Second Amendment is not about self-defence.

 

[Quartus]

Ultimately it is, Tejon. That self defense included, in the minds of the FF, the right of defending property as well as life, and the right of defending liberty by taking arms against the Federal gummit. So it is not ONLY self defense in the limited modern sense of defending one's person against immediate attack, but still, the right of self defense is fundamental to the 2A.

Arguing about the Second Amendment is a total waste of time. As for me, I couldn’t care less what it says, I couldn’t care less how it’s interpreted, and I couldn’t care less what any court thinks about it.

Second Amendment or no Second Amendment, I have an God-given right to keep and bear arms. Period.

True, but the Court's interpretations of, and the various legislature's understanding of, the meaning of the 2A, DOES have a very immediate bearing on the extent to which we may exercise that freedom without having to worry about being incarcerated.


I'd much rather live in an America that recognizes, in its courts and laws, the original intent of the 2A, so the meaning DOES matter to me.

Of course, if you don't care if you are arrested, convicted, and imprisoned over the issue, I guess it doesn't matter. True, you'd be morally and legally right, but you'd still be in prison.

Say hi to Big Bubba.

 

[El Tejon]

Quartus, please cite me a single reference to the Framers considering the Second Amendment having anything to do with self-defense??? The Second Amendment is not about defence of home and hearth or self.

 

[Quartus]

I'm not saying that the FF crafted the 2A in order to protect the right to personal self defense - that was a given in their day. I'm saying that the FF recognized the right to personal self defense, AND BY EXTENSION, the right to throw off a tyrannical government, and crafted the 2A because THAT right was not as readily recognized as the (to their day) OBVIOUS right of personal self defense.

IOW, if there is no right of personal self defense, there is no right to rid ourselves of tyranny.

If there is no right to rid ourselves of tyranny, there is no reason for the 2A.

One follows the other.