"Miller" and the 2nd Amendment.

[Graystar]

+1 again.

...not quite saying what it thought the 2nd Amendment means

From my reading of the Miller decision, it appears that the Court made their view of the Second Amendment perfectly clear:
1. Assures the continuation and effectiveness of the militia.
2. The militia includes all men capable of acting in concert for the common defense.
3. Men were expected to bear arms supplied by themselves and in common use.

Miller Opinion
The Constitution as originally adopted granted to the Congress power--"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia--civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

after McReynolds ruled there could have been a trial where such things as facts could have been introduced.

Correct, the trial could have continued, but no facts introduced could have been used to reexamine the previous Second Amendment questions. Miller’s lawyer would have had to come up with an entirely new argument that asserts a Second Amendment right.

 

[alan]

Graystar offered, in part, from his last post:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Doesn't legislation such as the National Firearms Act of 1934, to mention just one such create "problems" with "And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.", I could be all wrong, but it seems to me that such is or would be the case.

 

[Graystar]

Doesn't legislation such as the National Firearms Act of 1934, to mention just one such create "problems" with "And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.", I could be all wrong, but it seems to me that such is or would be the case.

I don’t think it does. The real question is...who it is that defines what weapons are “in common use at the time”? The Court proceeded on the notion that law defines what weapon a militia man is expected to bear. That’s why they included excerpts from three militia acts that define the weapon. In all cases long guns were called for.

If the case had involved a full auto rifle with a barrel longer than 18 inches, the court might have ruled the other way. We’ll never know.

 

[alan]

Graystar:

As you noted at your closing, "we shall never know", though meantime, it is interesting to speculate on.

As to who or what would define "what weapons are in common use at the time", I would think that military TO&E could/would provide significant guidance, but then what do I know, being neither a politican, a jurist nor a military person.

 

[publius]

Graystar, I think you missed a word here:

In all cases long guns were called for.

Should read:

In all cases long-obsolete guns were called for.

 

[Graystar]

Should read:

In all cases long-obsolete guns were called for.

Hey, those gun weren't obsolete when they wrote it!

 

[ctdonath]

First, note that the 2nd Amendment has NO limits on weapons at either end of the spectrum - from pointy sticks to aircraft carriers. (WMDs are only a conceivable exception because responsible use is presumably nigh unto impossible save in total war - another discussion.)

The real question is...who it is that defines what weapons are “in common use at the time”? The Court proceeded on the notion that law defines what weapon a militia man is expected to bear.

Most seem to overlook that such laws defined a minimum that militiamen were expected to bear - with no indication of any upper limit.

Who gets to define what are "in common use"? enemies of the USA.

Modern weapons (whatever era) are presumably what one's enemies are using. The whole point of having weapons is defense against the assaults of one's enemies. Ergo, one presumably has a vital need to own at least arms equal to those of one's enemies; as peace is best achieved thru superior firepower, one wants better. Perversely this answers the question "who is it that defines what weapons are in common use at the time?" The answer is: one's enemies, for you will need, at the price of your life, arms at least on par with what they have.

Anything less than modern affordable arms are only viable in the question insofar as they are more effective than nothing. A skilled few may be able to wield antique arms effectively against opponents equipped with modern arms, but as most people have at best a minimal ability to use weapons, the most capable tools are exactly what most citizens need.

Future weapons obviously don't exist.
Leading-edge technology weapons are economically and ergonomically infeasable.

Lawmakers do not have standing to define what constitutes "common militia arms". They cannot set upper limits on arms possession because doing so amounts to treason, aiding and abetting enemies by deliberately weakening citizens and nation. They cannot prohibit weapons under a certain arbitrary line for the same reason: insisting citizens be disarmed aids and abets enemies by neutering our people. The only reason to legislate minimal standards for weapons is, as in the Militia Act of 1792, to ensure citizens meet at least a minimal equipment standard suitably effective against what enemies may reasonably be expected to have.

The proper answer is: whatever an individual can afford. The economics of weapons technology at a given time defines what weapons come into common use. At any time in history, that at minimum amounted to a weapon:
- carried in one hand
- wielded in two hands
- consumable components light enough to carry in sufficient quantities for a modest skirmish
- cost roughly a week's wages
- made by craftsmen (not most individuals)
- embodies the affordable state-of-the-art.
Heavier weapons were likewise what could be afforded and managed by teams.

Doesn't legislation such as the National Firearms Act of 1934, to mention just one such create "problems" with "And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Only insofar as those who enact and enforce such legislation are trators. If not for 922(o), and to a lesser extent NFA, M4s would be commonplace in private ownership. Our potential enemies are not under such encumbrances, and commonly use M16s, AK47s, and similar select-fire weapons; that such arms are not "common" in the USA is a fact of trators in Congress (who themselves have select-fire arms protecting them) who seek to disarm their constituents. Such weapons ARE common among those who can get them (legal or not).

 

[Graystar]

Most seem to overlook that such laws defined a minimum that militiamen were expected to bear - with no indication of any upper limit.

So you’re saying that if a person showed up with a cannon instead of a rifle, that would be perfectly acceptable? I don’t think so. There’s nothing to indicate that anything other than a rifle was acceptable. Otherwise there would have been language akin to, “...or weapon of equal or greater effectiveness.” But there is nothing like that. There’s only a strict description of the rifle and ammo (for the rifle.) There is no basis in law for viewing the requirements of the acts as minimums that allowed bigger more effective weapons. That’s not the language of the acts.

 

[publius]

Who said a cannon instead of a rifle? The rifle is still required, but I don't think that showing up with BOTH would be unwelcome if, for example, a wealthy militiaman had some extra cannons off his boat.

 

[ctdonath]

There is no basis in law for viewing the requirements of the acts as minimums that allowed bigger more effective weapons. That’s not the language of the acts.

There is equally no language prohibiting greater arms. Perhaps showing up with a cannon without rifle was not acceptable ... but only because the convenience of the small weapon was lacking - NOT because he had a cannon. Showing up with both would be quite welcome.

What increasingly baffles me is this insistence on letting, even expecting, the gov't define an upper limit on personal arms. The militia is the people; the militia defends the nation; 'tis ludicrous to limit what weapons the militia may have, as doing so ONLY serves to aid and abet the enemies of the USA.

The acts have as a fundamental axiom: that every man be armed in a manner suitable for modern combat.
Perversely, we have a new axiom: that no man be armed, save at the whim of tyrants.
Examine your own axiom in this discussion: is the base presupposition that every man be armed at least as well as his enemies are reasonably expected to be armed?

 

[unspellable]

militia weapons

At the time of the Revolutionary War and the War of 1812 there were examples of privately owned war ships. The warship was the super weapon of its day, and was certainly crew served, but they were considered as part of the militia in time of war.

 

[hugh damright]

What increasingly baffles me is this insistence on letting, even expecting, the gov't define an upper limit on personal arms. The militia is the people; the militia defends the nation; 'tis ludicrous to limit what weapons the militia may have, as doing so ONLY serves to aid and abet the enemies of the USA.

The warship was the super weapon of its day, and was certainly crew served, but they were considered as part of the militia in time of war.

It occurs to me that the US Constitution says (in Article I, Section 10) that "no State shall ... keep troops, or ships of war in times of peace". If a militia bears the same weapons as troops, then what is the difference between militia and troops? Is the only difference that militia members have day jobs, while troops are full time soldiers?

I do not have a problem with the US setting an upper limit on personal arms, although that does not mean that I agree with the limits they have set. But I understand the fundamental principle involved to be that free government is where the majority is sovereign because all men are equal, and to ensure that all men are equal, they need to be armed ... if we want to take this "musket philosophy" and apply it to modern arms, and say that individuals have a right to weapons of mass destruction ... then that does not make all men equal, it makes one person superior to many, and that is not a security to free government but rather a threat to it.

I think that it is well established that there are military weapons and then there are civilian/police weapons. I believe that "unorganized militia weapons" are civilian/police type weapons, not military weapons. I sometimes think it would make sense for State Militias to have more military type weapons ... for instance RPG's ... but that does not mean that I think every individual has a personal right to carry RPG's around with him.

 

[ctdonath]

what is the difference between militia and troops?

Troops are a branch of government, and generally protect the collective. They are ultimately loyal to a soveriegn ruler (King, Parliment, Constitution). They form one side of the us-vs-them of the relationship between government and citizens. When unused for national defense, they tend to seek out politically-motivated battles, be they against foriegners or citizens.

Milita consists of the armed people, and generally protect themselves and adjacent individuals. They are ultimately loyal to themselves. They form the other side of the us-vs-them relationship between government and citizens. When unused for national defense, they tend to neglect preparation and disarm.

The two complement each other in national defense. Troops provide ready-to-go concentrated heavy combat ability, but rely on central leadership; much power in a small package. Militia provide ready-to-go backup combat ability, but have limited leadership; pervasive power in a broad package. One is very efficient, but can be routed; the other is inefficient, but is pervasive. A military can hit an enemy head-on; a militia ensures the enemy cannot win (contrast France with Switzerland).

Is the only difference that militia members have day jobs, while troops are full time soldiers?

In a sense, yes. Militia do little of military form unless situation dictates dropping everything else and fighting - which they must be prepared for, as little notice for equipping and training may be given. Troops are constantly trained, equipped, ... and bored out of their minds until a fight can be found.

"no State shall ... keep troops, or ships of war in times of peace". If a militia bears the same weapons as troops, then what is the difference between militia and troops?

Motive. The Founding Fathers feared a standing army being used against a disarmed people, or state armies acting against other states. They, in their experience, did not trust governments to not use troops as a tool of oppression. The militia has little interest in aggression, and being the people cannot be used against the people. The Founding Fathers did not want individual states to have a military power which could be used against other states. If there is to be any military force at all, it comes from the whole people being armed, and from all states contributing to a national military.

I do not have a problem with the US setting an upper limit on personal arms

Based on WHAT? You, as a militia member, have the responsibility of filling in when the enemy is on our soil and our military is overwhelmed (or oppressive). At that point, there will be no source of arms beyond your own collection, you will be faced with an active formal military equipped with heavy weapons, and it will be up to you and your neighbors to stop them. In the Constitution, Congress is granted the power to issue "Letters of Marque": authorization for citizens to use their own heavy weapons on behalf of the USA; such actually-issued letters include authorizing use of already-owned battleships equipped with dozens of cannons and manned by hundreds.

This discussion inevitably runs quickly to "but what about WMDs?" They are not acceptable for personal ownership only insofar as they cannot be used responsibly on US soil. WMDs are only suitable for total war on foriegn soil, and even then only in the gravest need for defensive expediency ever seen in history. Anything less than WMDs is suitable for militia use in driving out invaders or tyrants on our soil.

I believe that "unorganized militia weapons" are civilian/police type weapons, not military weapons.

Then you completely miss the point of the militia. The militia IS a military force, and its members must be permitted (nay, have a natural right and duty) to obtain any and all arms suitable for ensuring the security of a free state (sound familiar?). Our Founding Fathers hoped to have ONLY a militia, and not a formal military; the formal military exists only to assure a certain level of military capability at any given time (as militias are notorious for neglecting their military responsibilities in peacetime).

that does not mean that I think every individual has a personal right to carry RPG's around with him.

Why? do you distrust your fellow citizens that much? do you so assume that an RPG-armed citizen is likely to, with no proper cause, launch one at you? I trust you to safely own one ... but as you project such distrust upon fellow citizens, perhaps it is you who cannot be trusted.

In practice, few would "carry RPG's around with him" - it is simply impractical. Such firepower is not likely needed at a moment's notice in normal peacetime society, and the one-shot package is awfuly awkward. That does not negate the possibility of needing one, should an active aggressor arise. In practice, one would (to paraphrase a famous quote) instead carry a pistol to fight one's way back to a rifle, and in turn fight one's way back to the RPG. Citizens would, in most cases, have ample warning to pull their heavy weapons out of storage if a situation warranted their use - which presumes the government has not actively prohibited possession of such weapons.

As it is now, a conceivable well-equipped "fifth column" attack* could not be appropriately met precisely because citizens have been disarmed** of anything more powerful than a hunting rifle. Even police have been neutered, and most of our formal military assets are overseas. What else must I say to overcome your leftist-induced view that "citizens shouldn't have military weapons"? YOU _are_ the military defense against enemy invasion & assault upon US soil! are you suitably equipped? if a real threat appeared (just because you can't predict one doesn't mean it won't happen), could you obtain such arms in time? especially with the government prohibiting you from getting them?

---

* - "Fifth column" = an enemy force rises up from within a population. Without being racist, and simply considering current events: Imagine Mexican immigrants (legal or not), present by the millions, decide to take over California. Imagine Muslims, present by the millions, decide there IS a religious war underway, sides must be taken, and the Great Satan (US gov't) must be brought down. Seems a bit far-fetched, but reasonably conceivable nonetheless. Imagine Leftists, present by the millions, decide Bush is the Fifth Reich and must be overthrown (much as they hate guns, they're willing to use 'em). If a "fifth column" is preparing, you may not know until it is too late - are you prepared for a surprise?

** - save for the tiny few who persevere their way thru NFA law.

 

[Librarian]

militia vs soldiers

to tie this back to Miller...

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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."

It is implied in the Constitution that a militia might be employed in the Service of the United States someplace other than the militia's state of origin.

In order for that to work, there has to be a "discipline prescribed by Congress." At a minimum, this has to include organization (e.g. in my militia, having a company commanded by a private and platoons commanded by colonels is likely to confuse the other militias), a reasonable expectation of the capability of a unit (e.g. if CA sends me an infantry company, it needs to be about the same as an infantry company from AL) and the militias must be able to share a supply chain, and use what is in it. If militias have the same weapons as the army (and each other), then their capabilities are more or less predictable, and spare parts and ammunition are good across the force.

It's actively detrimental to arm the militia differently from organized forces.

 

[NCP24]

This is a really good thread it covers a number of viewpoints. For me, I think I’ll go with go with the 5th Circuit Court of Appeals (United States v. Emerson) interpretation of United States v. Miller.

 

[hugh damright]

What else must I say to overcome your leftist-induced view that "citizens shouldn't have military weapons"? YOU _are_ the military defense against enemy invasion & assault upon US soil! are you suitably equipped?

Our traditional societal and cultural values are not leftist. It is one thing to say that a person has a patriotic duty to have a rifle and know how to shoot it, and is quite another to say that every person is the military and must be equipped suitably with RPG's and such. Am I suitably equipped?? If I felt like I was the military, and had a duty to own RPG's, I wouldn't be on here posting about it! But yes, I am "suitably equipped", because I own a semi-auto rifle.