"Miller" and the 2nd Amendment.

[unspellable]

What kind of government?

If you have majority rule, it's called a democracy. The root word of democracy is the Latin demos meaning terror. Think of the French revolution. In other words, mob rule.

The United States is a federal republic. The republic part means rule of law. The constitution is sovereign. The constitution rules. An officer of the United States military takes an oath to defend the constitution just as a British officer takes an oath to defend the queen.

The founding fathers had just as deep a distrust of democracy as they did government. That’s why we have a republic. Of course it’s a democratic republic, we get to vote. But any democracy carries the seeds of its own destruction. Sooner or later the masses find out they can vote themselves bread and circuses.

Various people have analyzed where the US is in the average life cycle of a democracy and most of them place us on the down hill side. But the fact that it's not a pure democracy is what has kept us going this long.

The American Revolution was pretty successful as such things go. Very few revolutions are. Simon Bolivar, the George Washington of South America made the comment that working for the revolution was like plowing the sea.

 

[Librarian]

If you have majority rule, it's called a democracy. The root word of democracy is the Latin demos meaning terror. Think of the French revolution. In other words, mob rule.

You might be right about mob rule, but I'm pretty sure you have the origin of the term wrong. "Democracy" is

Derived from two ancient Greek words demos (the people) and kratos (strength).

(and several other versions of Greek words with the 'krat' root - I neither speak nor read Greek.)

Possibly you may be remembering 'deimos'

In Greek mythology, Deimos is one of the sons of Ares (Mars) and Aphrodite (Venus); "deimos" is Greek for "panic".

See also this page for a bit of overkill on the word origin.

But I think I'm as happy as you are that we have a democratic republic rather than a direct democracy.

 

[ctdonath]

Amidst all the navel-gazing about the nuanced history of the term "militia", remember that the clause containing the word is a subordinate, even disposable, part of the sentence defining the right in question.

"...the right of the people to keep and bear arms shall not be infringed" IS the defining legal limit. Understanding militias helps understand why the limit is there, but fact is the limit IS there, and it is upon the government, NOT the people. ...and Congress has comprehensively stated that "the people" is not limited either. Save felons and nukes (and even those are debatable), there is no lawful reason for the government to in any way prevent Joe Citizen from wandering down to a gun shop and picking up an M4.

All "Miller" did wasy say "go gather more info" and threw it back to the lower courts - possibly in consideration of the fact that that the defendant was dead and doing so gave them a clean way to bail out of having taken a worthwhile case that turned sour when Miller didn't show. Perhaps the ruling really was that mundane ("good case, but no defendant - throw it back and hope it returns cleanly").

 

[Librarian]

I may be confused but in the sixties wasn't the NG sent into a Southern State and the State Police were mustered? Are there instances of States using their National Guard to check the US?

Maybe this one?

Three years after the Supreme Court's Brown v. Board of Education decision, which officially ended public-school segregation, a federal court ordered Little Rock to comply. On September 4, 1957, Governor Orval Faubus defied the court, calling in the Arkansas National Guard to prevent nine African American students--"The Little Rock Nine"--from entering the building. Ten days later in a meeting with President Eisenhower, Faubus agreed to use the National Guard to protect the African American teenagers, but on returning to Little Rock, he dismissed the troops, leaving the African American students exposed to an angry white mob. Within hours, the jeering, brick-throwing mob had beaten several reporters and smashed many of the school's windows and doors. By noon, local police were forced to evacuate the nine students.

When Faubus did not restore order, President Eisenhower dispatched 101st Airborne Division paratroopers to Little Rock and put the Arkansas National Guard under federal command. By 3 a.m., soldiers surrounded the school, bayonets fixed.

Little Rock or maybe

In 1963, the governor of Alabama was George Wallace. He had run for and won the office on the slogan of "segregation now, segregation tomorrow, segregation forever." In June of 1963, a federal court barred any state government interference with the enrollment of two black students, Vivian Malone and James Hood, at the University of Alabama. Despite this order, Governor George Wallace appointed himself the temporary University registrar and stood in the doorway of the administration building to prevent the students from registering. In response, President Kennedy federalized the Alabama National Guard. One hundred guardsman escorted the students to campus and their commander, General Henry Graham, ordered George Wallace to "step aside." Thus were the students registered.

In neither case was the governor able to use his NG to oppose the feds. I would not envy the NG commander in such a circumstance - but that dilemma is for another thread.

 

[unspellable]

Demos

That was a bit tongue in cheek. I believe "Demos" is the Latin varient of the Greek "Diemos". They are often translated as "terror". (One thing I have learned with languages is that there is seldom an exact translation.) The temptation was too much to resist. I have such fits of lame humor from time to time when I forget my medication.

ctdonath is right, the 2A prohibits the government from infringing upon the right of the people to keep and bear, militia or no militia.

But I'd like the left wingers to explain one thing to me. When the 2A says "people" why does it mean "government" while when the 1A says "congress" it means the people?

 

[Graystar]

Article 8 of the Constitution gives to Congress the power

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 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;

It seems pretty clear to me that part of 'organizing' is 'defining the membership', and exercising explicit constitutional power is constitutional.

I agree. That's why the National Guard is the militia.

All "Miller" did wasy say "go gather more info" and threw it back to the lower courts

They did no such thing. The question was answered. The ruling was reversed, not vacated. When a decision is reversed, it is replaced with a contrary ruling. The lower court could not have thrown the case out again on a Second Amendment issue.

 

[Librarian]

The question was answered. The ruling was reversed, not vacated.

No, it was (reversed and) remanded to the lower court so a trial could occur and establish some facts. No question was answered - that's one of the problems of US v Miller.

An indictment in the District Court Western District Arkansas, charged...

The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
...
We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

US v Miller, 307 U.S. 174 (1939) via FINDLAW

I thought someone had already posted this:

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 Prev | Next

§ 311. Militia: composition and classes
Release date: 2005-07-12

(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.

The NG is not THE militia - it's the 10 USC 311 (b)(1) 'organized militia'. Congress, in its wisdom, has also defined the (b)(2) 'unorganized militia'.

(Sorry, had to go to dinner - continuing...)

And yes, this does mean that Congress can make the 'unorganized militia' go away as part of the militia of the United States. In my opinion, that's irrelevant to individual RKBA.

 

[Graystar]

No, it was (reversed and) remanded to the lower court so a trial could occur and establish some facts. No question was answered - that's one of the problems of US v Miller.

Oy...this again...

Terms like reversed and vacated and remanded are legal terms that have well defined meaning and courses of actions associated with them. You simply cannot read these terms as if they’re nothing special and just come up with your own conclusion. That’s not how it works.

Nearly all cases are remanded. All that means is that the case may now move forward from whatever point it had come to a halt. You treat the word “reversed” like it’s inconsequential, when it fact is it the most important element of the ruling.

To reverse a ruling means to replace the original ruling with a contrary ruling. In the Miller case, reversed and remanded means that the case must move forward as if Judge Heartsill Ragon had ruled against the demurrer. Judge Ragon cannot examine the question again because his ruling was reversed.

A vacated ruling is a ruling that is set aside as if it was never made. If the Court had vacated and remanded, then Judge Ragon could have considered the question again (in a way consistent with the courts opinion.) But it wasn’t vacated...it was reversed. There was no fact finding to occur. That’s a fantasy that laypersons cling to in some desparate effort to prove that the court hadn’t decided the issue. But they did answer the question and they did so decisively. That’s why they reversed. That’s the way the court system works.

The NG is not THE militia - it's the 10 USC 311 (b)(1) 'organized militia'. Congress, in its wisdom, has also defined the (b)(2) 'unorganized militia'.

I apologize for not being more clear. I didn't mean to imply that the National was the one and only militia. I am well aware of the State Defense Forces, such as the New York Guard here in NY so I understand there are different levels of militia.

My point was simply that, regardless of level, they're all still state militias. It seemed like other people are saying that the National Guard no longer qualifies as state militias, and is in fact some form of federal forces. That is clearly wrong. The National Guard is under the control of the states until such time as they're needed by the federal government, just like the Constitution says.

 

[hugh damright]

It seemed like other people are saying that the National Guard no longer qualifies as state militias, and is in fact some form of federal forces. That is clearly wrong.

When the feds tried to force their will on Alabama, the Alabama National Guard was not on the side of Alabama, it was a federal force used against Alabama. How can anyone maintain that the Alabama National Guard is not a federal force when they turned against the Governor and the State and took orders from a US that was exceeding its powers in the first place??

Again, maybe there are cases where a State has used it's National Guard to stand up to the feds, but if anyone mentioned such a case here I overlooked it.

 

[Graystar]

When the feds tried to force their will on Alabama,

What in the world are you talking about???

 

[hugh damright]

Republicanism, Constitutionalism, & Sovereignty

The United States is a federal republic. The republic part means rule of law. The constitution is sovereign.

I believe that in a republican form of government the constitution is the supreme law but it is the people i.e. the majority that is the sovereign or ultimate authority. After all, the people have a right to alter or abolish their Constitution, and to ordain and establish a new one.

I see the States as republics, but the US is not a simple republic but rather what Madison called a "compound republic" in which the sovereign or ultimate authority is the people as fifty sovereignties i.e. the States. In the US, it is the States that are sovereign.

 

[hugh damright]

When the feds tried to force their will on Alabama

What in the world are you talking about???

From a few posts back ...

In June of 1963, a federal court barred any state government interference with the enrollment of two black students, Vivian Malone and James Hood, at the University of Alabama. Despite this order, Governor George Wallace appointed himself the temporary University registrar and stood in the doorway of the administration building to prevent the students from registering. In response, President Kennedy federalized the Alabama National Guard.

And please, the topic here is not integration and egalitarianism, we are discussing if the NG is the State Militia, and my point here is that when the Alabama NG goes up against Alabama and the Governor, they seem to me to be anything but State Militia.

 

[Graystar]

...my point here is that when the Alabama NG goes up against Alabama and the Governor, they seem to me to be anything but State Militia.

The Constitution states...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections...

The federal government could have also called forth the unorganized militia if they felt it was necessary. The results would have been the same.

The Constitution also says...

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
...
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

The governor of Alabama was violating a federal ruling...something that he took an oath to uphold. He was acting outside the authority entrusted to him by the people of Alabama. His acts qualify as insurrection. The federal government was well within its powers, as granted by the states and people of this country, to do what it did, and used the Alabama militia appropriately to suppress insurrection.

 

[Henry Bowman]

The federal government could have also called forth the unorganized militia if they felt it was necessary.

Isn't that what we call Selective Service and used to call "the draft"?

 

[hugh damright]

The governor of Alabama was violating a federal ruling...something that he took an oath to uphold. He was acting outside the authority entrusted to him by the people of Alabama. His acts qualify as insurrection. The federal government was well within its powers, as granted by the states and people of this country, to do what it did, and used the Alabama militia appropriately to suppress insurrection.

In my view, it was the federal government that exceeded its authority, and Wallace was acting to uphold the authority entrusted to him by the people of Alabama. We can't have a federal government that just invents powers and then calls it insurrection if you don't play along ... and to be more on topic, we can't be calling the NG a State Militia when it is used, not by, but against the State. Where was the Alabama Militia in June of 1963? Where was the force that was there to secure the free State of Alabama, rather than there to take it away? Here's a quote from the Southern Manifesto:

"The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.

We regard the decisions of the Supreme Court in the school cases as a clear abuse of judicial power. It climaxes a trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people.

The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment. The debates preceding the submission of the 14th Amendment clearly show that there was no intent that it should affect the system of education maintained by the States.

...

Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land."

 

[hugh damright]

The federal government could have also called forth the unorganized militia if they felt it was necessary.

How do you figure that? The unorganized Militia is the people of Alabama, and the people of Alabama cannot be called forth to suppress the people of Alabama, that is the whole idea of Militia.

I think this is a very important point here: the federal government cannot reconstruct a State using that States own unorganized militia. In other words, an Army or NG or whatever can turn against the people, as they did in June of 1963 in Alabama, but the intent of militia is that it cannot turn against the people because it is the people.

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; 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. " Virginia BOR, June 1776

 

[Jeff White]

Hugh,
Ever since the republic was founded, the militia has been a force of the state. Read the militia act of 1792, the first law pertaining to the militia after the revolution.

The militia is not the people. The militia is the people called into the service of the elected government. The elected government is the people.

The militia act of 1792 gave the president the authority to call up the militia to put down insurrections. So if the governor of Alabama or any other state was in violation of federal law, the president could legally use the militia of that state to enforce federal supremacy.

Now if that would be a good idea, politically or operationally is another question entirely, but it would have been legal even from the earliest days of the republic.

Jeff

 

[Graystar]

Isn't that what we call Selective Service and used to call "the draft"?

Exactly!

Where was the force that was there to secure the free State of Alabama,

It was doing exactly that...securing a free Alabama against a governor who was operating outside his powers and in contradiction to his oath of office.

How do you figure that? The unorganized Militia is the people of Alabama, and the people of Alabama cannot be called forth to suppress the people of Alabama, that is the whole idea of Militia.

Of course you can. That’s what an insurrection is.

I think this is a very important point here: the federal government cannot reconstruct a State using that States own unorganized militia.

You just made that up. That Constitution guarantees to each state a republican form of government. If the federal government needs to use a state’s militia to make that happen, then so be it. They do have that power.

Ever since the republic was founded, the militia has been a force of the state.
...

+1

 

[Jeff White]

I think that many people are buying into the propaganda put out by the anti-government extremists in the so called modern militia movement that the founders intended the militia to be a check on the government. Nothing could be further from the truth, the militia is and always has been a part of the government.

I don't believe that the reference to a well regulated militia being necessary for the security of a free state in any way gives the government the power to restrict firearm possession based on what may or may not be an appropriate weapon for militia use. Because the amendment goes on to state that the right of the people to keep and bear arms shall not be infringed. You don't have to have a militia or be a member of the militia (as defined in the US code) to have the right to keep and bear arms.

Jeff

 

[Graystar]

+1 again.

 

[Librarian]

A vacated ruling is a ruling that is set aside as if it was never made. If the Court had vacated and remanded, then Judge Ragon could have considered the question again (in a way consistent with the courts opinion.) But it wasn’t vacated...it was reversed. There was no fact finding to occur. That’s a fantasy that laypersons cling to in some desparate effort to prove that the court hadn’t decided the issue. But they did answer the question and they did so decisively.

Ah. I was thinking more narrowly; the district court made 2 assertions, and the SCOTUS clearly said "the objection that the Act usurps police power reserved to the States is plainly untenable." to deny the first, and spent a lot of time muddying the waters, not quite saying what it thought the 2nd Amendment means, but concluding "Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.", thus denying the second claim ("section 11 of the Act violates the Second Amendment").

So, yes, you're right - those two assertions were closed off as items usable in a further trial, and NFA will be exceedingly hard to challenge on 2nd Amendment grounds, so I mis-spoke when I wrote there were no conclusions; where I was going was that since there was no trial - the upheld demurrer stopped the proceedings before that happened - after McReynolds ruled there could have been a trial where such things as facts could have been introduced. The fates of Miller and Layton were not determined by the SCOTUS ruling. Given the attention bestowed upon the SCOTUS result, it seems that Miller and Layton were the least important participants.

 

[hugh damright]

That Constitution guarantees to each state a republican form of government. If the federal government needs to use a state’s militia to make that happen, then so be it. They do have that power.

I do not see how we can construe the guarantee that each State have a republican form of government to mean that the US has the power to call out the militia to integrate the schools by force. In fact, I think the intent was just the opposite ... if Alabama has a republican form of government, then they decide their own intrastate affairs by voting for people who represent their views, like Wallace. What the US did was a direct attack on Alabama's republican form of government. And no, the US does not have any delegated power, or any right, to do such a thing.

 

[Librarian]

What the US did was a direct attack on Alabama's republican form of government. And no, the US does not have any delegated power, or any right, to do such a thing.

I believe this argument was resolved in favor of the feds in the 'late unpleasantness' of 1860-1865.

 

[Filthy McNasty]

"Therein lies the rub. How are we, as a militia, going to be prepared to wage a fight against today's military?? Granted, semi-automatic mode is often preferred to full auto. FA wastes ammo (on the whole), provides poor accuracy, etc. But......there are times that FA mode may be required. Just like AP rounds and the like. As I see it, today's society couldn't wage an effective battle against today's troops. "

I don't see it that way.
First, you're assuming that members of the military who are sworn to uphold law (including constituional) and order are going to just turn and fire on their neighbors, friends, and families ath the whim of a politician. I think you would find a surprising number of military coming over to the civilian side.
Second, given the extremely large weaponry in the hands of private citizens, the military will not be taking on some Third World, tin horn dictator's :useful idiots". The civilian populace greatly outnumbers the military.
Third, due to a decided lack of necessarily concentrated "civilians", ordnance that relies on thes large concentratiions of people will be less effective.
Finally, I think you would have a helluva time expecting ATK or any other ammunitions manufacturer willing to tool up to support a regime run amok that is killing many of the ATK employee's aquaintances.

I strongly believe that today's citizenry would stand up quite well to the military despite the differences with the inherent ordnance superiority of the military. I realize that not all of the citizenry would necessarily take up arms, but those that wouldn't would still be cautious about a government turning on it's own citizenry.

 

[Jeff White]

"Therein lies the rub. How are we, as a militia, going to be prepared to wage a fight against today's military?? Granted, semi-automatic mode is often preferred to full auto. FA wastes ammo (on the whole), provides poor accuracy, etc. But......there are times that FA mode may be required. Just like AP rounds and the like. As I see it, today's society couldn't wage an effective battle against today's troops. "

Allright, get this out of your head right now! The militia, the legal militia, the one that is provided for in the constituion is part of the military. it is a reserve of the military and is available to the elected government in case of invasion and to put down insurrection!

If you are in a militia that thinks one of it's missions is to engage the US military in combat operations you are the insurrection that the founders created the militia to put down! That's right, you are the bad guys. The militia has always been part of the government NOT a check on the government.

If you are in a militia that is not organized and sanctioned by the laws of your state you are most likely already a criminal. Because you are not, I repeat are not in the militia that is referenced in the constitution. You are a member of a private army and in many states private armies are illegal.

Jeff