The law governing militias in the United States

[ConstitutionCowboy]

gc70

You may be correct. Your accusation that I do not believe the Second Amendment protects the rights of the people to keep and bear arms may be libel. I am not certain whether something said on the internet is legally considered published or spoken.

The Second Amendment of the US Constitution prohibits the Federal government from infringing on the people's right to keep and bear arms. State governments (New York and California come to mind) can infringe the heck out of the right to keep and bear arms without being in any way in legal conflict with the Second Amendment... because the 2nd has not been incorporated to apply to the states.

If you believed that the Second Amendment protected the RKBA, you'd have to believe it protected the right across the board. A right not protected across the board is a right not protected.

I have neither slandered nor libeled you. There is nothing malicious, damaging, defamatory, or unjust to your reputation in what I have written. I haven't even abridged anything you have written.

Woody

 

[gc70]

Woody, I believe that the Second Amendment (which is a restraint only on the Federal government) protects the people's right to keep and bear arms (i.e. precludes a Federal ban on all firearms) and I am very thankful that it exists.

I wish that the US Constitution prohibited Federal AND state infringements on the right to keep and bear arms, but that is not what the Constitution says. Reading and trying to understand the Constitution rather than just believing how I wish things were does not make me some kind of heathen disbeliever.

But enough of this personalization; that's the sort of thing that gets threads closed and our discussion is much too stimulating for that to happen.

A right not protected across the board is a right not protected.

Not necessarily true. The 2nd protects us from Federal predations by the likes of Ted Kennedy and Diane Fienstien. I'm pretty happy with the way my state constitution and state legislators protect my right to keep and bear arms at the state level. The combination of the federal and state levels actually give people choices; folks who don't like guns can choose to live in states that are not gun-friendly and folks like us can live in states that are gun-friendly. I think that is what the Founders probably had in mind when they created our republic.

 

[ConstitutionCowboy]

gc70

I'd like to hear(read) your logic on why you believe the 2A only forbids the Union from infringing the RKBA. I'll post my logic tonight.

It's not about liking or disliking arms, or having a choice. It's about not loosing the choice.

Woody

 

[gc70]

It all started with the states. Each state held all power within its borders and had its own state constitution that provided for whatever rights the people of the state wanted. The states agreed to a contract (the US Constitution) to form a national government. The states only gave up certain limited powers to the national government and kept all other powers for themselves.

The US Constitution defines: the structure of the national government; the powers given to the national government by the states; and, the powers denied to the national government. Some people thought 'natural' rights (i.e. freedom of speech) were so obvious and generally recognized that they did not have to be specifically mentioned in the US Constitution. Others insisted on the adoption of the Bill of Rights to spell out limits on the national government's ability to interfere with 'natural' rights.

Power over the right to keep and bear arms was originally held by the states (thankfully, most state constitutions recognize the right to keep and bear arms and prohibit state governments from fooling with that right). The states did not give the national government any authority over the right to keep and bear arms in the US Constitution. In fact, the Second Amendment specifically tells the national government to keep its nose out of the right to keep and bear arms. So, any authority over the right to keep and bear arms is still held by the states.

Addendum: Of course, this is a technical analysis of governmental power over the right to keep and bear arms. The reality is that the Federal government HAS usurped power, not granted by the Constitution, over the right to keep and bear arms and the cowardly Supreme Court has refused to address the constitutionality of infringing laws.

 

[cropcirclewalker]

Yeah, what he said.

That is why NFA34 and GCA68 have no force in law.

 

[glummer]

hugh damright

Tyrants don't lay down rules of rebellion, they deny the right. We made up our own rules, and our rule is that the majority of Virginians have a right to alter/abolish Virginia government, but the majority of Americans do not have a right to alter/abolish US government. Or are you telling me that you personally believe that the US is a national government i.e. a State and that the people of the whole US have a right to rise up as one and take over the US government?

Trick question. It assumes that uprisings against tyranny have to assume some specific form, which, you seem to imply, is predetermined by the form of the existing government.
As you, yourself, pointed out, "We made up our own rules ...". We did not rebel formally, as colonies under a king, in order to establish other colonies, under another king. We rebelled more or less piecemeal, and changed the form of the government. Any future rebellion would undoubtedly do the same, no matter what the composition of the successful rebellion was. "The People" precede the existence of any government; we are not necessarily citizens of any particular State, or Nation, or Federation, and we do not have to rebel in any particular configuration.
Rebellions are, by definition, unlawful. Therefore, current laws, and court rulings, will not give a complete picture of the "Revolution Insurance" function of the militia.

 

[ConstitutionCowboy]

There Is Only One Way The Second Amendment Can Be In Complete Accord...

...with the rest of the Constitution, and that is if it forbids the several states to infringe the RKBA as well as it forbids the Congress to infringe the RKBA.

I hear a lot of people touting that the 'Bill of Rights" only applied(applies) to the Union. No one has ever provided proof of that, other than for the obvious First Amendment prior to the Fourteenth Amendment.


The Second Amendment and the Tenth Amendment protect our right to keep and bear arms. First, per the Tenth, there is no power delegated to the federal government in the Constitution that would allow it to control the people's keeping and/or bearing of arms. Next, the Second Amendment - a prohibition on legislation that would infringe the people's right to keep and bear arms - would come under the heading of a power prohibited to the states as well as the federal government. Thirdly, Article I, Section 8, Clause (16), gives the Congress power to actually provide the militia - that's We the People who are not in the regular military services - with arms.


With that in mind, refer to Article I, Section 10, Clause 3 of the Constitution where it says, "No state shall, without the consent of Congress,.....,keep troops,..., in time of peace.


Now, to whom shall the federal government provide those arms if the states are forbidden to keep troops? Why, to the people, of course! The only force a state may hold is something authorized by Congress. However, the militia is to remain forever ready to be called forth by Congress as authorized by Article I, Section 8, Clause 15. And what comprises the militia? The people. This is still true even in the light of the National Defense Act of 1916 which provided for organizing a part of the militia to be held ready for employment in the service of the United States. That Act did neither eliminate the need for a well regulated militia nor has the Constitution been amended to cancel or to ignore or deny in any way that the militia exists. Now, that truth calls forth another undeniable truth.


THE MILITIA existed prior to the Constitution and any of the states. The militia is spoken of in the Constitution in that preexistent tense. The Constitution did not create the militia. None of the states created the militia. The Second Amendment did not create the militia. The Constitution only talks of arming, organizing, disciplining, and calling forth the militia. The Second Amendment protects the Right of the People to Keep and Bear Arms so that the militia might be well regulated (armed and trained) in their use to maintain freedom. And, again, who is the militia? The people.


One undeniable truth often spoken of is that states do not have rights. States have powers. Though many claim the Second Amendment applies only to the federal government, the premise is demonstrably false. The Second Amendment protects a right of the people. It does not grant a power to the states. It does not reserve a power to the states. Anything in the Constitution denying a power to a state is specifically written in that context. Anything in the Constitution denying a power to the federal government is specifically written in that context as well. Anything in the Constitution not specifically singled out to deny a power to a state or the federal government denies said power across the board. Only individuals have rights. The Second Amendment protects the right of the people and forbids any power of the state to infringe upon that right. No power ever trumps a right on any level.


Now, let us hearken back to Article I, Section 8, Clause (16), where Congress is given power to arm the militia. In the light of that, and the fact that the Constitution is the supreme law of the land, where would a state find power to supersede power granted to the United States government? Where would a state find the power to forbid, or even ever so slightly infringe upon, the duty of the militia(that's us) to keep and bear arms as imposed upon us(the militia) by power SPECIFICALLY granted to Congress in the Constitution? It is nowhere. If Congress decided to arm each and every member of the militia with a .50BMG, a 1911, and an M16, any state law to the contrary would have to go bye-bye. In fact, any state law currently existing to the contrary is, on its face, unconstitutional right now. Then, of course, there is the Second Amendment forbidding any and all branches and level of government to infringe upon the Right to Keep and Bear Arms. Make no mistake. The restrictions in the Second Amendment applies to all levels of government. Even if it didn't, no state law could ever(should never) be written that interfered with power granted to the federal government.


Disarming the people(the militia) doesn't even make sense. If a national crisis were to develop on any given day, requiring an immediate defense, we'd be hurting rather badly in several strategic states. Helpless civilians(disarmed militia) running from an invasion, rather than armed and standing ground, would impede the National Guard and the Military. Streets clogged with vehicles driven by helpless civilians(disarmed militia) will make it rather difficult for our Military and the Guard to come to the rescue.


As a footnote, I'd like to point out that the "Bill of Rights" is not a separate entity having any force or effect upon the laws, rights, privileges, or powers of anyone, or to any level of government. The separate Articles in the "Bill of Rights" are, as specified in the original "Bill of Rights"," Articles in addition to, and Amendment of the Constitution ...: and as such are as much an integral part of the Constitution as any of the original Articles. Therefore, these added Articles(amendments to the Constitution) have as much weight and bearing on any and all levels of government created by or subservient to this Constitution. That would include any and all levels of state government. All the scholarly interpretation or construing(misconstruing?) of these facts is just that - scholarly interpretation or construing(misconstruing).


Here is actual law in the US Code where Congress recognizes that any right - ANY right - secured by the Constitution is supreme, and these laws provide for punishment for anyone who violates these laws:

18 USC 241, Conspiracy against rights:


"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured - They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."


18 USC 242, Deprivation of rights under color of law:


Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 USC 242 is of particular note, in that it covers the deprivation of any right, etc, under the color of any law....ANY law. It doesn't say any law of the United States, nor does it exempt the law of any state or political subdivision thereof. It simply says "...any law,...".

Here is one where the Court got it very wrong: In U. S. v. Cruikshank, the SCOTUS said, "The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.(and does not bind the states)" (italics mine.) The SCOTUS has gotten this wrong. Nowhere in the Second Amendment does it say that the said Second Amendment applies to the federal government alone. The statement I italicized refers to previous decisions and the SCOTUS in this instance accepted that statement carte blanc.
The logic is simple here. How can anyone say that the only source of tyranny would come on the federal level? It is patently and provably FALSE! The tyranny the slaves lived under...Pardon me...Existed under was at the STATE level! Don't anyone give me the argument that the slaves were not considered to be people, either. Sodamn Hinsane didn't consider the Kurds as people. Sodamn Hinsane was a tyrant. Ipso facto! In my opinion, the Cruikshank decision purposely avoided the application of the Second Amendment to the states because, in 1875, the SCOTUS didn't have the guts to force the states to adhere to the Constitution.


Further, the SCOTUS contradicted itself in Cruikshank in that it stated that the rights enumerated in the Constitution are preexisting to the Constitution but ignored the fact that those same rights are preexisting to the states as well! The illogic of this boggles my mind. How could the founding fathers have recognized the Right to Keep and Bear Arms, placed protection of it in the Constitution, and done so only as an academic exercise? Every citizen of this country is a citizen of a state. It is pure fallacy to claim a preexisting right, protected by the Constitution for the security of the people, cannot be protected from infringement by the states by that same Constitution that all states agreed to adhere to!


There is much more along these same lines, but space and time won't allow all of it to be printed here.


Woody


"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this nation, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

The US Constitution defines: the structure of the national government; the powers given to the national government by the states; and, the powers denied to the national government. Some people thought 'natural' rights (i.e. freedom of speech) were so obvious and generally recognized that they did not have to be specifically mentioned in the US Constitution. Others insisted on the adoption of the Bill of Rights to spell out limits on the national government's ability to interfere with 'natural' rights.

Was it a faux pas or did you purposefully omit the fact that there are powers forbidden to the states in the Constitution?

 

[Zoogster]

If citizens feel that these rules are unjust, they can change the elected government to one that they think is better

I hear similar sentiments repeated often, but in a 2 party system where often either available choice poorly represents the majority, yet is thier only practical choice through design of our current system of politics. You cannot as a people choose who you want to represent you, only pick out of those available. Modern politics are ruled by a necessary large cash flow to utilize current media (which itself is not nuetral and has agendas.) No longer are politics waged through texts to the masses, but through less logical flashy commercials designed for knee jerk voting reactions rather than logic based thought. Since they have a few seconds to influance you each they focus on emotion and misleading statements designed to provoke quick illogical decisions. They often do not even have to be substantiated as the average american does not heavily research the massive amount of candidates we have in our ever growing government. But instead relies on what they are told by the media and thier opponents or supporters.


Keep in mind the founding fathers were criminals, people breaking from a government that was on its way to conquering much of the world. They were therefore suspicious of the growth of power whenever not absolutely necessary because they realized it leads to an entity disconected from the people that rules for itself (and employees thereof) while trying to keep the population complacent if it was allowed to grow beyond a certain point.

They therefore tried to decentralize government as much as possible by having militia that could quickly form out of the general populance to defend at the local level rather than centralized standing military that could become a government entity centraly controlled with actions contrary to local desire.
They wanted to balance being vulnerable to conquer from outsiders by having everyone armed and capable of uniting to defend, but with limited standing government controlled military.
This whole argument is mute now though as the creation of agencies like the FBI, ATF,DEA and now Homeland Security are essentialy government military forces left standing tasked with domestic work. Were in fact very controversal at thier forming because of this and restricted to investigation only, but later allowed to militarize and police because of the highly publicized rescuing americans had from gangsters(organized crime of the prohibition era vs FBI.) Originaly they were allowed only as 'investigation bureaus' without teeth. Now they have 'hostage rescue teams' and similar forces composed of former commandos and practicly identical in strategy to military.
State and Federal 'SWAT' type units are the very centralized military used to control citizens that the founding fathers created the militia concept to avoid. We legitimized these institutions for so long they are now key American persausive and powerful domestic military and intelligence forces we rely on. I don't see this changing.They exist, so the concepts the founding fathers had when creating the legislation no longer apply. So arguments about what they meant are meaningless in the modern sense.

 

[gc70]

Was it a faux pas or did you purposefully omit the fact that there are powers forbidden to the states in the Constitution?

Neither; the powers specifically forbidden to the states (Article 1, Section 10) are powers that the states gave to the national government. They are powers that could potentially be exercised by either the states or national government. Some types of power can't be shared (unitary powers) and the Constitution carefully recites the powers the national government is granted that the states will not also be able to hold (i.e. to enter into a treaty).

Since I mentioned that the states had granted powers to the national government in the Constitution, it would have been redundant to mention that the states were prohibited to exercise those unitary powers granted to the national government.

Now, to whom shall the federal government provide those arms if the states are forbidden to keep troops?

To a state-controlled armory? Even in colonial times, the militia either brought their personally-owned arms or drew arms from a government-controlled armory. The battles at Lexington and Concord took place when British troops marched from Boston to seize the arms and ammunition stored in the armories in Lexington and Concord.

*****

Here is one where the Court got it very wrong: In U. S. v. Cruikshank, the SCOTUS said, "The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.(and does not bind the states)"

If you are not informed by the painfully detailed explanations contained in Supreme Court decisions, there is no hope that my meager explanations will sway your beliefs.

 

[ConstitutionCowboy]

gc70

Neither; the powers specifically forbidden to the states (Article 1, Section 10) are powers that the states gave to the national government. They are powers that could potentially be exercised by either the states or national government. Some types of power can't be shared (unitary powers) and the Constitution carefully recites the powers the national government is granted that the states will not also be able to hold (i.e. to enter into a treaty).

Since I mentioned that the states had granted powers to the national government in the Constitution, it would have been redundant to mention that the states were prohibited to exercise those unitary powers granted to the national government.

Not quite "complete" or accurately factual. People are able to keep ships of war without permission from Congress. If those powers were "unitary" as you claim, granting them to Congress would have negated any need to forbid them to the states. The Constitution would only have needed to say "Congress shall have THE power;" but, instead, the Founding Fathers chose to list powers granted to Congress and separately list those powers they wished the states not to share with Congress. That way, the people still retain all those powers the people decided to share with Congress.

As for those armories in Concord and Lexington, they existed before the Constitution forbade the states to keep troops and ships of war.

If you are not informed by the painfully detailed explanations contained in Supreme Court decisions, there is no hope that my meager explanations will sway your beliefs.

Nice duck.

Those decisions would have taken no more than a paragraph or two had they been in conformance to and/or compliance with the Constitution. I've read those "painfully detailed explanations" and can only conclude that those "decisions" in defiance of the Constitution are just that. There are many instances where the Court has "gotten it wrong". But, you first. Pony up or admit defeat and forever hold your peace. No one gets off that easy!

....and our discussion is much too stimulating for that to happen.

Woody

To be liberal is to live in a cloud of delusion fraught with fantasy, and a disregard for the law and fair play. Alas; clear fact, unambiguous consensus, scrutiny, and researched reason does prevail and keeps me in touch with who is who, what is what, and explains why I am conservative. B.E.Wood

 

[hugh damright]

"The People" precede the existence of any government; we are not necessarily citizens of any particular State, or Nation, or Federation, and we do not have to rebel in any particular configuration.

Again, you might personally feel that the people of the whole US have a right to rise up and take over the US, but Federalist 39 explains why this is false.

You seem to be saying that the people of one State have a right to alter/abolish the government of another State ... but that is completely foreign to the idea of free government which the right to alter/abolish government regards. The principle is not that any people can take over any government, but rather that the people of a free State have a right to alter/abolish their own government.

It's almost as if you describe imperialism and call it rebellion.