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"Militia" Definition

Discussion in 'Legal' started by chrisher, Feb 7, 2004.

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  1. chrisher

    chrisher Member

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    Hi, all!

    Please bear with me as I'm new here, and please note my wife and I are both PRO 2A and PRO CCW.

    I was thinking about some of the definitions of MILITIA that I've seen on this and other boards. It is described as "..able bodied men between 17 and 45..". (Please feel free to correct.)

    Webster's..... Militia.."A body of civilians enrolled as a military force, drilled and trained for defence, but called into active service only in times of emergency." I know Webter's was compiled after 2A.

    What I'm wondering is if the Bad Guys (Trolls, Antis, etc..) Might be able to use the 1st definition (above) against us. IE: "OK, Gun-Nuts. By your own definition of militia, NO women EVER, no one UNDER the age of 17, (BB/pellet guns) or OVER the age of 45 can keep/bear any arms. So there!!!"

    This was brought up by one of my Anti friends at work and I had no answer so I said I'd look into it and respond later.

    Thanks, in advance.



    "..An argument is a connected series of statements intending to establish a proposition...An argument is an intellectual process, not just the automatic gain-saying of anything the other person says.."

    M. Palin, "The Argument Clinic"
     
  2. Tempest

    Tempest member

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    US Code: Title 10
    US Code as of: 01/26/98

    Sec. 311. Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

    (b) The classes of the militia are -

    (1) the organized militia, which consists of the National Guard
    and the Naval Militia; and

    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    I would think the unorganized militia definition includes the rest of us, including women and older folks. Correct me if I'm wrong.
     
  3. idd

    idd Member

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    The Militia Act of 1792 was subsequently modified by the Dick Act of 1903 and then tweaked a couple of times in the 1950s.

    As it stand now, "The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

    See Eugene Volokh on this.

    Also, given the advances in gender jurisprudence, the unorganized militia would undoubtedly include women on the same terms as men.

    Also, the introductory clause of the Second Amendment merely explains but does not limit the scope fo the 2nd Amendment. It's the "right of the people," not the right of the militia or of the states.
     
  4. chrisher

    chrisher Member

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    Tempest,

    Thank you for the quick (and concise) reply. Now, I can go back into battle ARMED!
     
  5. idd

    idd Member

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    Testimony of Eugene Volokh, a legal scholar, on the Second Amendment before the Senate Subcommittee on the Constitution, Sept. 23, 1998.
     
  6. chrisher

    chrisher Member

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    idd,

    Thank you for the reference material. Now I'm "overstocked" with ammo!! And many thanks to all who respond!!!
     
  7. Art Eatman

    Art Eatman Administrator Staff Member

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    The Bill of Rights is a complete package. The purpose is to serve as a restraint upon abuse of power by the State.

    So: How can a restraint upon the central government also be a restraint upon the citizenry, or the individual members thereof?

    If the words have any consistency of meaning--and the Amendments were written by a very few and literate people--how can "the people" be singular in one instance, and not be singular elsewhere?

    Just a bit more ammo...

    :), Art
     
  8. HunterGatherer

    HunterGatherer member

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    The following is reprinted from the September 13, 1991 issue of
    GUN WEEK:
    THE UNABRIDGED SECOND AMENDMENT
    by J. Neil Schulman
    If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of theSecond Amendment to the United States Constitution?

    That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style: The Consensus. A little research lent support to Brocki's opinion of Professor Copperud's expertise.

    Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

    He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

    That sounds like an expert to me.

    After a brief telephone call to Professor Copperud in which I introduced myself but did \not\ give him any indication of why I was interested, I sent the following letter:



    --------------------------------------------------------------------------
    "July 26, 1991
    "Dear Professor Copperud:

    "I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

    "The text of the Second Amendment is, '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.'

    "The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

    "I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

    My letter framed several questions about the text of the Second Amendment, then concluded:

    "I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

    "Sincerely,

    "J. Neil Schulman"



    --------------------------------------------------------------------------
    After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

    --------------------------------------------------------------------------
    [Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.
    In reply to your numbered questions:

    [Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia"?;]

    [Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

    [Schulman: (2) Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;] [Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

    [Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

    [Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

    [Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

    [Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

    [Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

    [Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

    [Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

    [Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

    [Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

    "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

    My questions for the usage analysis of this sentence would be,


    Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and
    Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]
    [Copperud:]
    Your "scientific control" sentence precisely parallels the amendment in grammatical structure.
    There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.


    --------------------------------------------------------------------------
    Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."
    So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.

    As I write this, the attempted coup against constitutional government in the Soviet Union has failed, apparently because the will of the people in that part of the world to be free from capricious tyranny is stronger than the old guard's desire to maintain a monopoly on dictatorial power.

    And here in the United States, elected lawmakers, judges, and appointed officials who are pledged to defend the Constitution of the United States ignore, marginalize, or prevaricate about the Second Amendment routinely. American citizens are put in American prisons for carrying arms, owning arms of forbidden sorts, or failing to satisfy bureaucratic requirements regarding the owning and carrying of firearms -- all of which is an abridgement of the unconditional right of the people to keep and bear arms, guaranteed by the Constitution.

    And even the ACLU, staunch defender of the rest of the Bill of Rights, stands by and does nothing.

    It seems it is up to those who believe in the right to keep and bear arms to preserve that right. No one else will. No one else can. Will we beg our elected representatives not to take away our rights, and continue regarding them as representing us if they do? Will we continue obeying judges who decide that the Second Amendment doesn't mean what it says but means whatever they say it means in their Orwellian doublespeak?

    Or will we simply keep and bear the arms of our choice, as the Constitution of the United States promises us we can, and pledge that we will defend that promise with our lives, our fortunes, and our sacred honor?



    --------------------------------------------------------------------------
    Copyright (c) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited.
    All others rights reserved.

    (Emphasis added)
     
  9. chrisher

    chrisher Member

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    Art and HunterGatherer,

    You guys are GREAT!!! Thank you both very much for the time and effort.
    Indeed, I have a surplus of 'ammo.' Can't wait to debate with the Trolls (even though they are my friends) again!!
     
  10. Sodbuster

    Sodbuster Member

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    The US Code had a provision for all honorably discharged veterans to be a member of the militia until age 65. Furthermore, it had provisions to include females and in general allow anyone to volunteer who met certain qualifications, which escape me now. I read through these paragraphs in the mid 90s and read these inclusions with my own eyes. Such references are now gone, I suppose due to congressional changes to the code. Some state statutes may be more widely encompassing than the US Code. Check your own state's statutes to see what they say about the militia. Congress can change the US Code, but the Second Amendment remains inviolate, at least to the thorns in the side of oppressive government. You may call me Mr. Thorn. :D
     
  11. El Tejon

    El Tejon Member

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    cris, the "militia" is composed of the whole body of the people, boys, girls, men, women of all ages. The armed people create a culture of learning of arms from which the militia springs forth.

    Just use THR as an example. For example, age, even though some here may be too "old" to fight their experience and wisdom is passed on to others more fit who are able. Too young? Ask the vets about one well-place young boy with a rifle. Women? No reason not to listen to their wisdom. Some of the best instructors of firearms tactics are women just as some of the best martial arts instructors are female.

    As far as definitions, case law defines the militia as all the people. Some states define the "militia" as all persons (either gender) over 17 with no upper age limit (e.g. Indiana).
     
  12. publius

    publius Member

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    Richard Henry Lee, who drafted the Second Amendment as well as the rest of the Bill of Rights, gave us a definitive answer in 1788:

    "A militia, when properly formed, are in fact the people themselves. ... The Constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militias shall always be kept well organized, armed, and disciplined, and include ... all men capable of bearing arms, and that all regulations tending to render this militia useless and defenseless, by establishing select corps of militia, or distinct bodies of military men not having permanent interests and attachments in the community [are] to be avoided. ... To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."
     
  13. Sodbuster

    Sodbuster Member

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    As did George Mason. One has to wonder how intent can be so easily disregarded?
     
  14. publius

    publius Member

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    <Ed McMahon voice>
    U R Correct, Sir!
    </Ed>
     
  15. publius

    publius Member

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    They had some other funny ideas back then. I frequently see this quotation in truncated form. When you see the whole thing, you can see why it gets chopped! From Federalist 29.

    I've gotta say, if Governor Jeb told me to turn out twice a year so he could see that I'm maintaining my arms and ammo stock, I'd be inclined to tell him to sit on it and rotate. ;)
     
  16. Art Eatman

    Art Eatman Administrator Staff Member

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    Thread Drift: But, why, publius? Seems to me there would be comfort in knowing others were indeed armed and prepared to exercise such responsibilities as life affords the need. Heck, think of the sort of society which would have public officials calling for the gathering!

    :), Art
     
  17. TimRB

    TimRB Member

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    "Thread Drift: But, why, publius? Seems to me there would be comfort in knowing others were indeed armed and prepared to exercise such responsibilities as life affords the need. Heck, think of the sort of society which would have public officials calling for the gathering!"

    My guess is that Publius fears that these days a call by the government to assemble the armed militia would simply be a way of getting everyone together to start a list of names, firearms, and firearm serial numbers.

    Tim
     
  18. fang

    fang Member

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    TO: Mr. Art Eatman:

    Sir: Is there any chance that Nicki Fellenzer could be reinstated to this
    BB? She doesn't know me from Adam, but I've been impressed, in
    general, by the quality of her writing. I grant she can get a bit
    strident at times :cuss: :fire: but her intellect and drive could also
    be useful, especially now. JMPO All indulgences on the forum's
    part would be appreciated. :)
     
  19. Ironbarr

    Ironbarr Member In Memoriam

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    Try my Sig's question and link. It goes a bit further.
     
  20. Mulliga

    Mulliga Member

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    Basically, the FFs put the distiniction between the US Armed Forces/National Guard and the unorganized Militia right there in the smegging BOR!

    Kind of makes your blood boil, doesn't it?...:)
     
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