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Tue Jan 22, 2013, 04:51 PM

What The Constitution Explicitly Says About Militias

I wonder why this never comes up in discussions of what the Second Amendment meant by maintaining "a well-regulated militia.":

Article I, Section 8: Congress shall have the power:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

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;

Er, seems to me that the Constitution defines "the militia" as a GOVERNMENT-founded, GOVERNMENT-trained, GOVERNMENT-armed, GOVERNMENT-run entity. That could be a federally organized entity or a state-organized entity.

What it is NOT is Gomer and Elmer sitting out in their deep-woods shack, armed to the teeth, with no connection to any federal or state entity defending against their own government coming after them.

In fact, it would seem to me that any militia that is NOT under direct government control would be a group that - if taking up arms against its own government - would be engaged in an INSURRECTION that the Constitution says the MILITIA would be called out to put down.

Am I wrong here?

96 replies, 4856 views

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Reply What The Constitution Explicitly Says About Militias (Original post)
stopbush Jan 2013 OP
srican69 Jan 2013 #1
gcomeau Jan 2013 #2
srican69 Jan 2013 #4
HereSince1628 Jan 2013 #8
srican69 Jan 2013 #42
HereSince1628 Jan 2013 #44
srican69 Jan 2013 #45
KharmaTrain Jan 2013 #54
srican69 Jan 2013 #57
KharmaTrain Jan 2013 #58
srican69 Jan 2013 #59
KharmaTrain Jan 2013 #60
srican69 Jan 2013 #61
BlueStreak Jan 2013 #87
Bucky Jan 2013 #52
xoom Jan 2013 #34
gcomeau Jan 2013 #41
xoom Jan 2013 #56
gcomeau Jan 2013 #64
xoom Jan 2013 #96
JoeBlowToo Jan 2013 #5
Ikonoklast Jan 2013 #14
merrily Jan 2013 #70
former9thward Jan 2013 #3
stopbush Jan 2013 #6
former9thward Jan 2013 #7
Hugabear Jan 2013 #9
beevul Jan 2013 #12
former9thward Jan 2013 #20
jmg257 Jan 2013 #31
former9thward Jan 2013 #32
Benton D Struckcheon Jan 2013 #33
jmg257 Jan 2013 #36
immoderate Jan 2013 #47
jmg257 Jan 2013 #51
immoderate Jan 2013 #66
jmg257 Jan 2013 #68
NoGOPZone Jan 2013 #39
jmg257 Jan 2013 #55
DirkGently Jan 2013 #17
former9thward Jan 2013 #19
DirkGently Jan 2013 #30
Benton D Struckcheon Jan 2013 #35
former9thward Jan 2013 #77
merrily Jan 2013 #72
merrily Jan 2013 #71
former9thward Jan 2013 #79
merrily Jan 2013 #82
former9thward Jan 2013 #83
merrily Jan 2013 #85
former9thward Jan 2013 #94
merrily Jan 2013 #95
lynne Jan 2013 #10
slackmaster Jan 2013 #11
lynne Jan 2013 #13
gcomeau Jan 2013 #65
merrily Jan 2013 #74
jmg257 Jan 2013 #80
merrily Jan 2013 #81
jmg257 Jan 2013 #84
merrily Jan 2013 #86
jmg257 Jan 2013 #89
merrily Jan 2013 #90
jmg257 Jan 2013 #93
gcomeau Jan 2013 #92
stopbush Jan 2013 #18
slackmaster Jan 2013 #21
stopbush Jan 2013 #22
slackmaster Jan 2013 #25
stopbush Jan 2013 #26
jmg257 Jan 2013 #28
slackmaster Jan 2013 #37
stopbush Jan 2013 #38
slackmaster Jan 2013 #40
stopbush Jan 2013 #43
merrily Jan 2013 #73
jmg257 Jan 2013 #27
immoderate Jan 2013 #49
jmg257 Jan 2013 #53
immoderate Jan 2013 #67
jmg257 Jan 2013 #69
onethatcares Jan 2013 #15
stopbush Jan 2013 #24
wjbarricklow Jan 2013 #48
stopbush Jan 2013 #62
jmg257 Jan 2013 #63
merrily Jan 2013 #75
Auntie Bush Jan 2013 #16
merrily Jan 2013 #88
jmg257 Jan 2013 #23
Progressive dog Jan 2013 #29
bubbayugga Jan 2013 #46
beevul Jan 2013 #50
merrily Jan 2013 #76
CBGLuthier Jan 2013 #78
merrily Jan 2013 #91

Response to stopbush (Original post)

Tue Jan 22, 2013, 04:54 PM

1. well - 5 justices in the scotus disagree with you - that is all that matters.nt

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Response to srican69 (Reply #1)

Tue Jan 22, 2013, 04:57 PM

2. Until we replace some of them with rational people... -nt

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Response to gcomeau (Reply #2)

Tue Jan 22, 2013, 05:00 PM

4. there is a 47% actuarial odds that one conservative judge will die within next 4 years


so there is some hope

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Response to srican69 (Reply #4)

Tue Jan 22, 2013, 05:21 PM

8. THere's a chance of replacing a justice, that's not the same as a a chance of a rational justice

The joint probability would be a product of replacing a judge and the probability of a replacement being progressive rather than conservative

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Response to HereSince1628 (Reply #8)

Tue Jan 22, 2013, 09:02 PM

42. no this is the probability of replacing one of the 5 conservative

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Response to srican69 (Reply #42)

Tue Jan 22, 2013, 09:07 PM

44. It's the chance there will be a vacancy

If I understand it correctly

If the chance of a progressive judge being picked is 50%

The joint probability is the product of the two probabilitis.

40 whatever time 50 whatever ... the result will be 20 whatever

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Response to HereSince1628 (Reply #44)

Wed Jan 23, 2013, 07:30 AM

54. Almost Anyone Is Better Than Scalia...

...who is 76 and I swear is starting to show some dementia (like that hat he wore to the Innaguration) and Anthony Kennedy is 74...thus those are the two conservative Justices more likely to retire within the next 4 years...and on the other side there's there's Justice Ginsburg who is also in her 70s and battling cancer and Justice Breyer who also is putting on the age mileage. I think the President will have at least one from each of these sides to replace in the next couple years. His selection will depend on who he has to replace...I would imagine it'll be easier to confirm a Progressive to replace a Justice Ginsburg while there could be a strong Senate fight on who is selected to replace a Scalia. But on the whole I feel a hell of a lot better knowing its President Obama who will be making those selections than Mittens...

Cheers...

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Response to KharmaTrain (Reply #54)

Wed Jan 23, 2013, 09:53 AM

57. scalia will not retire in the next 4 ... he hates liberals with a passion and will not let

Obama pick his replacement.

I think the next election is going to be super critical

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Response to srican69 (Reply #57)

Wed Jan 23, 2013, 10:05 AM

58. Every Election Is Critical...

Hopefully that's the lesson of 2010. You may be right...he's become more emboldened over the years as the "leader" of the far right on the court. He goes Aaah...and Thomas and Alito go "choo". I don't expect he'll leave the court other than toes up...I'm far more concerned about Justice Ginsburg's health.

Cheers...

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Response to KharmaTrain (Reply #58)

Wed Jan 23, 2013, 10:08 AM

59. I expect her and justice stevens to retire this term ... and hopefully one

scumbag from the conservative bench croaks as well....

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Response to srican69 (Reply #59)

Wed Jan 23, 2013, 10:36 AM

60. Judge Stevens Retired in 2010...

...his place is now taken by Justice Kagan.

Here's the list of current Justices and their ages:

Justice Date of Birth Appointed by Sworn in
Antonin Scalia 3/11/1936 Age: 76 yr 10 mo Ronald Reagan 9/26/1986 Served: 26 yr 3 mo
Anthony Kennedy 7/23/1936 Age: 76 yr 6 mo Ronald Reagan 2/18/1988 Served: 24 yr 11 mo
Clarence Thomas 6/23/1948 Age: 64 yr 7 mo George H. W. Bush 10/23/1991 Served: 21 yr 3 mo
Ruth Bader Ginsburg 3/15/1933 Age: 79 yr 10 mo Bill Clinton 8/19/1993 Served: 19 yr 5 mo
Stephen Breyer 8/15/1938 Age: 74 yr 5 mo Bill Clinton 8/3/1994 Served: 18 yr 5 mo
John G. Roberts 1/27/1955 Age: 57 yr 11 mo George W. Bush 9/29/2005 Served: 7 yr 3 mo
Samuel A. Alito, Jr. 4/1/1950 Age: 62 yr 9 mo George W. Bush 1/31/2006 Served: 6 yr 11 mo
Sonia Sotomayor 6/25/1954 Age: 58 yr 6 mo Barack Obama 8/8/2009 Served: 3 yr 5 mo
Elena Kagan 4/28/1960 Age: 52 yr 8 mo Barack Obama 8/7/2010 Served: 2 yr 5 mo


http://www.thegreenpapers.com/Hx/SupremeCourt.html

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Response to KharmaTrain (Reply #60)

Wed Jan 23, 2013, 10:39 AM

61. I meant Stephen breyer ... i am getting old

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Response to HereSince1628 (Reply #8)

Wed Jan 23, 2013, 01:53 PM

87. Please send lots of pork rinds and cookies to the SCOTUS

See if we can raise that 47% a little.

My guess is that there will be no vacancies among the insane 3 + Kennedy and Roberts while Obama is in power. If we can win in 2016, however, the odds go WAAAAAAAY up that we can flip that majority, with 2 or 3 of the conservative 5 leaving the bench one way or another.

2012, 2014, and 2016 are all absolutely crucial to the future of this country.

Imagine where we would be today if there were only 3 of the crazy conservatives and 6 reasonable people.

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Response to srican69 (Reply #4)

Wed Jan 23, 2013, 07:01 AM

52. creepy

I know, I know. But still... creepy

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Response to gcomeau (Reply #2)

Tue Jan 22, 2013, 08:24 PM

34. So once you replace them they can just change the meaning?

 

Not as easy as you make it seem.

Edit: spelling

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Response to xoom (Reply #34)

Tue Jan 22, 2013, 08:59 PM

41. What?

Once you change them they agree on what the plain freaking meaning already is.

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Response to gcomeau (Reply #41)

Wed Jan 23, 2013, 08:34 AM

56. Is it really that easy?

 

Or doesn't there need to be a case that makes it way up to the SCOTUS, then they can decide the "plain freaking meaning"

Not as easy as you think... Sorry.

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Response to xoom (Reply #56)

Wed Jan 23, 2013, 11:53 AM

64. Oh yay, we're being intentionally obtuse today.

Of course you need a freaking case. That's a given. Case + sane justices = rational implementation of law. Cases can be produced any time, but there's no point pushing it with conservative partisans stacking the court right now.

So what do we need? To replace some of them with rational people. Get it?

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Response to gcomeau (Reply #64)

Wed Jan 23, 2013, 07:42 PM

96. I did from the start... I was seeing if you did. I understand completely.

 

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Response to srican69 (Reply #1)

Tue Jan 22, 2013, 05:03 PM

5. You are mistaken...SCOTUS has said very little about militias...

 

what they did do is make up a right, separate from the "well-regulated militia" for Americans to arm themselves for self defense. There is not one word about this in the Constitution.

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Response to JoeBlowToo (Reply #5)

Tue Jan 22, 2013, 06:37 PM

14. You are correct. For some of those judges to say they are 'strict' about interpreting the

Constitution, it certainly seems odd that they found something that just is not there.

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Response to Ikonoklast (Reply #14)

Wed Jan 23, 2013, 01:11 PM

70. You mean. like the Framers intended corporations to be people?

Scalia is excellent at making up crap and claiming it was the intent of the Framers.

As if they all had the same intent anyway. Most of the wording in the Constitution is compromise language.

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Response to stopbush (Original post)

Tue Jan 22, 2013, 04:59 PM

3. Yes, you are wrong.

The reserve militia or unorganized militia was created by the Militia Act of 1903 and it consists of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. Former members of the armed forces up to age 65 are also considered part of the "unorganized militia" per Sec 313 Title 32 of the US Code.

So if you are a male you are part of the militia whether you like it or not. In addition the Supreme court has interpreted laws which say "males" to also include females. The only way to get out of the militia is to leave the country.

In addition almost all state Constitutions have similar provisions which state any able bodied residents are part of the state militia.

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Response to former9thward (Reply #3)

Tue Jan 22, 2013, 05:12 PM

6. But are not all of we "unorganized militia" still subject to oversight

as a militia by the government? Who would call us out as a militia? Elmer? Gomer? Wouldn't it be the government?

IF you are considered to be part of a state militia, then by definition, are you not under the control of that state?

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Response to stopbush (Reply #6)

Tue Jan 22, 2013, 05:16 PM

7. No, that is why they call it "unorganized".

The unorganized militia is only called for use in an extreme national emergency. The National Guard is used in ordinary emergencies.

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Response to stopbush (Reply #6)

Tue Jan 22, 2013, 05:25 PM

9. Silly, quit thinking that the "Well-Regulated" part of the 2nd Amendment really means anything

You see, when the 2nd Amendment refers to a "well-regulated militia", it doesn't actually mean that, we're supposed to give that an extremely loose interpretation.

But when it says "shall not be abridged" - well by God, that is absolute GOSPEL, and must be construed literally.

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Response to Hugabear (Reply #9)

Tue Jan 22, 2013, 05:54 PM

12. The preamble actually affirms that view. N/T

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Response to Hugabear (Reply #9)

Tue Jan 22, 2013, 07:11 PM

20. You don't know what the word "regulated" meant in the 1700s, do you?

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Response to former9thward (Reply #20)

Tue Jan 22, 2013, 08:03 PM

31. Sure we do...and UNorganized ain't part of it.

Damn if 'unorganized' isn't almost the opposite of well regulated.

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Response to jmg257 (Reply #31)

Tue Jan 22, 2013, 08:07 PM

32. I don't don't who "we" is.

I love how people think they speak for everyone. "regulated" meant "trained" in the 1700s. They did not know the word "regulations". It did not exist.

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Response to former9thward (Reply #32)

Tue Jan 22, 2013, 08:23 PM

33. That is grammatically impossible.

...also logically. I mean, come on.

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Response to former9thward (Reply #32)

Tue Jan 22, 2013, 08:43 PM

36. Sure OK, I agree - "we" obviously doesn't mean you.

14: To make Rules for the Government and Regulation of the land and naval Forces;
US Constitution

Obviously the framers heard of "regulations". They only use it like 5 times or so...

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

"...but the Congress may at any time by Law make or alter such Regulations..."

"..and make all needful Rules and Regulations respecting..."
etc. etc.

Mr Sherman In Congress 1790
"What relates to arming and disciplining means nothing more then a general regulation in respect to arms and accoutrements."

I am pretty sure he knew what "regulations" were, don't you?


The Milita Act of 1792 (An Act of the Second Congress)

"And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia.
XI. Be it enacted, That such corps retain their accustomed privileges subject, nevertheless, to all other duties required by this Act, in like manner with the other militias."


Sure seems the rest of the Congress knew what regulations were too; but even if you find that usage here is a little...iffy, certainly
they heard of these: Regulations for the Order and Discipline of the Troops of the United States; since these were how they decided the Militias were to be disciplined/trained.


As for enacting and putting to good use those Regulations for organizing and training...well - just who is doing all this regulating? The government that's who. The federal government and the State governments.

"The Congres shall have the power: 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;"

UNorganized is definitely NOT well regulated.

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Response to jmg257 (Reply #36)

Wed Jan 23, 2013, 12:22 AM

47. From Federalist 29 -- A Hamilton.

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.


Well regulated here means "trained" or "qualified." And the Second Amendment allows citizens access to weapons so they can get well regulated on their own time.

--imm

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Response to immoderate (Reply #47)

Wed Jan 23, 2013, 06:52 AM

51. 'Trained under the authority of the State'...not quite on their own time.

'To the discipline prescribed by Congress'...

"It shall be the duty of the Commanding Officer {appointed by the State} as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."


How the Militias become well regulated:

Organized:
"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...
...That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct;"


Armed:
"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service..."

Disciplined:
"And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."

"The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.
An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States."


All as mandated in the Constitution.

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Response to jmg257 (Reply #51)

Wed Jan 23, 2013, 12:07 PM

66. So what does "provide himself with a good musket..." mean?



--imm

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Response to immoderate (Reply #66)

Wed Jan 23, 2013, 12:21 PM

68. Just that...It means they must provide themselves with a musket (pistol, sword) for militia duty.

So they can be 'under arms' when they are disciplined/trained by the States, according to the regulations prescribed by Congress.

(edit: 'they' being the people who were mandated to make up the militias)

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Response to former9thward (Reply #32)

Tue Jan 22, 2013, 08:53 PM

39. It didn't exist in the 1700s, yet it's in the Constitution.

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Response to former9thward (Reply #32)

Wed Jan 23, 2013, 08:20 AM

55. The links between Organization and Regulations and Well Regulated continue...

Last edited Wed Jan 23, 2013, 08:59 AM - Edit history (1)

"The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.
An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States."


Hamilton 1788

"THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense...and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "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."
...
If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation.
and at the disposal of that body which is constituted the guardian of the national security...
...What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia"

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Response to former9thward (Reply #3)

Tue Jan 22, 2013, 07:03 PM

17. A 1903 law doesn't define terms of the 2d Amendment.

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Response to DirkGently (Reply #17)

Tue Jan 22, 2013, 07:09 PM

19. The "1903 law" remains federal law.

But the 2nd amendment stands on its own and doesn't need a subsequent law to define it.

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Response to former9thward (Reply #19)

Tue Jan 22, 2013, 08:00 PM

30. Right. Your post has zero to do with the 2d Amendment.

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Response to former9thward (Reply #19)

Tue Jan 22, 2013, 08:25 PM

35. Once again, entirely incorrect.

Statute law, that is, laws passed by Congress to define what is meant in the Constitution, are held in very very high regard by the SC, and aren't overturned by the SC for any old trivial thing.

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Response to Benton D Struckcheon (Reply #35)

Wed Jan 23, 2013, 01:27 PM

77. Who is overturning a law or advocating that?

Your post is nonsense.

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Response to former9thward (Reply #19)

Wed Jan 23, 2013, 01:13 PM

72. So what if it remains federal law? It still says zip about the Constitution.

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Response to former9thward (Reply #3)

Wed Jan 23, 2013, 01:12 PM

71. What does a statute enacted in 1903 have to do with what the Constitution means?

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Response to merrily (Reply #71)

Wed Jan 23, 2013, 01:29 PM

79. The poster I was replying to seemed to think the 2nd A only applies to the National Guard.

It applies to everyone.

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Response to former9thward (Reply #79)

Wed Jan 23, 2013, 01:37 PM

82. Whatever your opinion is, a 1903 statute has nothing to do with the meaning of a 1789 Constitution.

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Response to merrily (Reply #82)

Wed Jan 23, 2013, 01:41 PM

83. The statute is a 2013 law.

Just because it was written in 1903 does not mean it has vanished. The 2nd A applies to everyone whether you like it or not.

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Response to former9thward (Reply #83)

Wed Jan 23, 2013, 01:44 PM

85. A 2013 law has nothing to do with what a 1789 Constitution meant either.

That should be self evident.

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Response to merrily (Reply #85)

Wed Jan 23, 2013, 03:16 PM

94. Really don't know your point.

The 2nd amendment applies to everyone is mine.

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Response to former9thward (Reply #94)

Wed Jan 23, 2013, 03:27 PM

95. Your citing a 1903 law to prove your point about a 1789 Constitutional provision is not meaningful.


That is my point. I don't know why seeing that seems so difficult for you.

No one wrote or ratified the Second Amendment in 1789 bases on a law passed over 100 years later. To understand what the Second Amendment meant, you have to look at what people who wrote it, passed it in the Constitutional Convention of 1787 and ratified it in the 13 colonies in 1789 thought it meant. Not a law that Congress passed long after all that happened.

That is my point.



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Response to stopbush (Original post)

Tue Jan 22, 2013, 05:25 PM

10. What made up the militia -

- at the time of the American Revolution and near the time of the Constitution - is much different than what we think of as a militia today. I discovered this as I was researching my family history and looking at original documents in both Virginia and Maryland.

During the revolution, we had the Continental Army. In addition to the Continental Army were the militias. The militias were made up of most every man standing that wasn't of either age or fitness to be in the Continental Army. Young men, old men, wounded soldiers no longer fit for the battlefield - that was the militia at that time. They were in addition to the standing army. Their focus was local - guarding bridges, goods, warehouses, etc.

Not sure how they defined "well regulated" but they did keep records of sorts and they had specific spots that the militia was charged with guarding, etc. There were also "Committees of Safety" that the militia reported to, which would have been a form of regulation. However, the Committees of Safety were made up of local land and business owners, not military or government individuals.

This is the militia that is described in the 2nd amendment. Certainly not a militia that we've needed in our lifetimes and hopefully not one that we'll ever need again.

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Response to lynne (Reply #10)

Tue Jan 22, 2013, 05:44 PM

11. Composition and classes of the federal militia per the United States Code

 

There is no mystery about it whatsoever.

10 USC § 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.


http://www.law.cornell.edu/uscode/text/10/311

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Response to slackmaster (Reply #11)

Tue Jan 22, 2013, 06:12 PM

13. I was speaking of the militia at the time the 2nd amendment was written -

- it was clearly different than how the militia is defined today.

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Response to lynne (Reply #13)

Wed Jan 23, 2013, 11:57 AM

65. Militia Acts of 1792...

http://en.wikipedia.org/wiki/Militia_Acts_of_1792

...The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack. Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen. Otherwise, men were required to report for training twice a year, usually in the Spring and Fall.

The militias were divided into "divisions, brigades, regiments, battalions, and companies" as the state legislatures would direct. The provisions of the first Act governing the calling up of the militia by the President in case of invasion or obstruction to law enforcement were continued in the second Act. Court martial proceedings were authorized by the statute against militia members who disobeyed orders.....




Very, very, VERY different than today. Which is what makes the 2nd amendment archaic to the point of obsolescence. But nobody will touch it because half the country treats it like holy scripture handed down from the SACRED FOUNDERS instead of like an amendment to a document that was INTENDED to be amended as times freaking changed.

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Response to gcomeau (Reply #65)

Wed Jan 23, 2013, 01:17 PM

74. You cannot look to a statute adopted after the Constitution to determine what the Constitution means

For one thing, Congress adopts a statute, while the Constitution was ratified by every colony/state that existed at the time.

To determine what a document that went effective in 1789 meant, you have to look at things before 1789.

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Response to merrily (Reply #74)

Wed Jan 23, 2013, 01:30 PM

80. I would not agree completely. What better way to see the intent of the Constitution

then to view the resultant statutes which were immediately enacted (often by the same founders)?

Combined with the debates over such acts, we can know with a great degree of certainty how the different clauses were intended/interpreted.

I agree the debates re: the constitution, the ratifying conventions etc. help too.

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Response to jmg257 (Reply #80)

Wed Jan 23, 2013, 01:36 PM

81. My prior post already addressed that.

But, I will repeat and elaborate.

The intent of the Congress of 1792 not only does not equal the intent of the drafters of 1787, it does not equal the intent of the people in the 13 colonies that ratified the Constitution. You have to look at the newspapers they read, the discussions they had, etc.

Moreover, the Framers did not have one intent. They disagreed with each other. That is why so much of the language of the Constitution is vague. It is compromise language.

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Response to merrily (Reply #81)

Wed Jan 23, 2013, 01:43 PM

84. We will disagree, then. From research it appears the intents are wonderfully in tune

re: the militias.

Of course there is some discrepency in the 2nd with some minority opinions in the state conventions, but for the most part, many were 'on the same page' with regards to the resultant act. Always minor squibbiling over details, but the intent is quite clear.

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Response to jmg257 (Reply #84)

Wed Jan 23, 2013, 01:51 PM

86. If you were correct, there would be no controvery about the meaning of the second amendment, yet

there was plenty of controversy in the Heller case. At no judicial level was the decision unanimous, including the SCOTUS level.

But, I guess posters who never set foot in law school know more about the "clear" meaning of the Constitution than people who sit on the SCOTUS and the the many law firms that filed amicus briefs in the case on both sides.

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

No, the intent is not quite clear.

Also, I notice you did not link to the research you supposedly consulted.

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Response to merrily (Reply #86)

Wed Jan 23, 2013, 02:19 PM

89. Of course there would be controversy, caused by anyone who wants it mis-read their way.

I listed the research...the debates in Congress, the Militia Acts, the ratifying conventions, etc..
And those documents clearly show the intent of the 2nd, and the related clauses in the Constitution.

Doesn't take a law degree to see it, just the ability to read, and an open mind.

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Response to jmg257 (Reply #89)

Wed Jan 23, 2013, 02:28 PM

90. Again, SCOTUS Justices dissented, as did lower court justices.

And your mind is no more open than anyone else's, especially people who are trained in law.

They read the same sources you claim you read and cited them in their briefs.

Moreover, I simply don't believe that you actually read all that material.

I think you've seen bits and pieces taken out of context by sources that have an agenda.

At this point, we are just both repeating ourselves.

I don't see the point in going around this same circle another time.

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Response to merrily (Reply #90)

Wed Jan 23, 2013, 02:58 PM

93. Exactly...as I said we will disagree, especially since you are now calling me a liar.

So do the research yourself, form your own opinion..it really isn't that hard.

The documents are interesting as hell if you have any interest in this type of stuff. If there was an easy way to copy over my 'favorites' folders' links on all this I would, but you seem clever enough to find the docs on your own.
You can start here:

http://memory.loc.gov/ammem/amlaw/lwaclink.html#anchor1
http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=0
http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=002/llac002.db&recNum=378
http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=002/llac002.db&recNum=286
http://www.constitution.org/dhbr.htm
http://www.constitution.org/mil/mil_act_1792.htm
http://www.virginia1774.org/MilitiaActof1785.html
http://oll.libertyfund.org/?option=com_staticxt&Itemid=29
http://candst.tripod.com/1stdebat.htm
http://www.usconstitution.net/madisonbor.html
http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss10.html
http://www.gwu.edu/~ffcp/exhibit/p7/p7.html
http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc012110))
http://www.virginia1774.org/Militia1777.html
http://www.firearmsandliberty.com/fedcases.2nd.html#SC1
http://memory.loc.gov/cgi-bin/ampage?collId=rbpe&fileName=rbpe00/rbpe000/00000600/rbpe00000600.db&recNum=0&itemLink=r?ammem/rbpebib:@field(NUMBER+@band(rbpe+00000600))&linkText=0
http://www.constitution.org/fed/federa29.htm
http://memory.loc.gov/ammem/amlaw/lwdg.html
http://www.constitution.org/uslaw/judiciary_1789.htm
http://www.virginia1774.org/Militia%20Act%20of%201757.html
http://press-pubs.uchicago.edu/founders/documents/v1ch14s26.html
http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=39
http://candst.tripod.com/origntro.htm
http://candst.tripod.com/origp3.htm

etc. etc. etc.

Or just try google.

Good Luck!

edit: more links added for you

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Response to merrily (Reply #74)

Wed Jan 23, 2013, 02:55 PM

92. The question...

..was what the Founders meant when they were talking about 'militias'.

This was the SECOND US Congress. It was stacked with actual real life Founders. THIS is what they thought "militia" meant. We know because they wrote it right down there for everyone to read.

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Response to slackmaster (Reply #11)

Tue Jan 22, 2013, 07:08 PM

18. Thanks for that info.

My question remains: who has the authority to call out the "unorganized" militia?

I read the Constitution as saying that "Congress shall have the power" to call out the militia.

Does that not mean that if Congress does not call out the unorganized militia, that any taking up of arms by that unorganized militia would be seen as insurrection?

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Response to stopbush (Reply #18)

Tue Jan 22, 2013, 07:11 PM

21. State governors

 

Here is the applicable section of California's Military and Veterans Code:

MILITARY AND VETERANS CODE
SECTION 120-130

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General.

124. Enrollment shall be made upon such notice and in such manner
as the Governor may direct. Every person required by such notice to
enroll who fails or refuses so to do is guilty of a misdemeanor.


http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=120-130

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Response to slackmaster (Reply #21)

Tue Jan 22, 2013, 07:19 PM

22. Thanks again.

So, if i read this right, anybody or any group of people in CA who believed that they could take it upon themselves to exercise their "second amendment remedies" without first being called out by the Governor to fulfill their obligation as an unorganized militia would be doing so outside of the law. They would be engaging in insurrection.

Correct?

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Response to stopbush (Reply #22)

Tue Jan 22, 2013, 07:33 PM

25. Yes, I believe your interpretation of the law is correct. Insurrection against a legitimately...

 

...elected government is a crime, possibly treason if it's against the federal government.

However, there are other purposes for the unorganized militia. In the absence of a formal chain of authority, people can organize themselves into ad hoc groups for self-defense, shoring up levies, or whatever else needs to be done. That is the enduring mind-set of the militia system.

Regardless, we all retain the right to keep and bear arms in defense of ourselves and others, or for any other lawful purpose.

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Response to slackmaster (Reply #25)

Tue Jan 22, 2013, 07:37 PM

26. Would another purpose of the unorganized militia be

that if push really came to shove, and this nation were under attack - say the way Japan and Germany were under attack on their own soil at the end of WWII - that the US government could call up the "folks army" as a last line of defense against people attacking us?

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Response to stopbush (Reply #26)

Tue Jan 22, 2013, 07:55 PM

28. Yes - the President has the power to call up the militia.

So called Insurrection Act:

`Sec. 333. Interference with State and Federal law
`The President, by using the militia or the armed forces, or both, or by any other :means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--
`(1) so hinders the execution of the laws of that State, and of the United States...
...



The Congress did NOT have to power to call forth the militia, they had the power to provide for calling it forth. In the 1st Militia Act they said the President would do so, and there has that power remained:

Militia Act 1792

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion,"

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Response to stopbush (Reply #26)

Tue Jan 22, 2013, 08:50 PM

37. Everyone is potentially subject to conscription when the shit hits the fan

 

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Response to slackmaster (Reply #37)

Tue Jan 22, 2013, 08:52 PM

38. I was subject to the draft when I was in HS during the Nam years.

I won that lottery - my number was WAY down the list of who might be drafted.

Hope I don't need to go through that again!

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Response to stopbush (Reply #38)

Tue Jan 22, 2013, 08:56 PM

40. I happen to have been born in the three-month period in 1958, that caused me to miss...

 

...the Vietnam era draft registration, and the one that replaced it shortly thereafter.

When I was in 10th grade nearly all of the male juniors and seniors (11th and 12th grade) had to register. Many of my classmates did as well, but I was a bit younger than most of them because I skipped a grade earlier.

I remember it well. The situation was terrible for many young men who I knew - Not being certain whether they would get sent to the war or not.

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Response to slackmaster (Reply #40)

Tue Jan 22, 2013, 09:06 PM

43. The kid who lived behind us got drafted, was sent to Nam

and got blown up two months later by a mortar shell during a nighttime attack. On his birthday.

A few days after his death, his parents received a letter from him detailing how terrified he was.

So sad.

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Response to slackmaster (Reply #11)

Wed Jan 23, 2013, 01:14 PM

73. That statute does not govern what the Constitution means.

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Response to lynne (Reply #10)

Tue Jan 22, 2013, 07:50 PM

27. "well regulated"...

"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia",

Federalist #29

In the Constitution, the Congress was given the power to come up with the guidelines for how the Militias would be regulated (provide regulations for arming and discipline and organization), and they would be trained/disciplined under the authority of the States. Hopefully they would thus become uniformly well-regulated.

The well regulated militia in the 2nd amendment is the same Militia of the several States as declared mandatory in the body...they were the 1st line of defence in securing our liberties, given very vital roles of establish justice/enforcing the laws, ensure tranquility/supressing insurrections, and common defence/repealing invasions.

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Response to jmg257 (Reply #27)

Wed Jan 23, 2013, 12:40 AM

49. Hamilton goes on to say...

"would be a real grievance to the people, and a serious public inconvenience and loss. "


Which means the states could not afford it. But if the people are armed, Hamilton says:

"This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."



--imm

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Response to immoderate (Reply #49)

Wed Jan 23, 2013, 07:12 AM

53. Unfortunately for Hamilton, they didn't do it his way...

as far as a 'select militia' goes.
They did follow his advice on how they would be regulated though.

"THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects...This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority.


We can read the Militia Acts and the constitution to see just how the Militias were to be regulated, and under whose authority and expense they would be organized and become disciplined

Of course the people did have to provide their owns {as prescribed by congress} for Militia service...less chance of the Militias being disarmed (and less expense to the govt).

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Response to jmg257 (Reply #53)

Wed Jan 23, 2013, 12:11 PM

67. Yes. They had to get 'well-regulated' using their own guns.

--imm

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Response to immoderate (Reply #67)

Wed Jan 23, 2013, 12:24 PM

69. Yep - under arms when being trained by the State, and of course armed when called forth

in actual service of the Union, or the State.

Our freedoms depended on it.

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Response to stopbush (Original post)

Tue Jan 22, 2013, 06:53 PM

15. I would have changed one thing on your post to:.

"what is is not, is Gomer and Elmer sitting out in their deep-woods shack, armed to the teeth, with no connection to any REALITY"

carry on.

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Response to onethatcares (Reply #15)

Tue Jan 22, 2013, 07:21 PM

24. I also should have written

"armed to the teeth while having no teeth of their own."

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Response to stopbush (Reply #24)

Wed Jan 23, 2013, 12:36 AM

48. Liberal tolerance...

 

Cute. Typical of the left. You're no better than the Democrats before the 60's who used generalizations to marginalize blacks and gays.

My name is not Gomer or Elmer, and I have all my teeth except for a wisdom tooth that was extracted by an oral surgeon. I believe in my rights as an American citizen. Right to free speech, right to assembly, right to habeus corpus, freedom from unreasonable search and seizure. And yes, the right to bear arms.

It's also funny that the left seems to view each of the Amendments of the Bill of Rights as applying to individuals except this one. That one enumerates the right (power, actually) of the government to form an organized militia? As opposed to the general militia?

I don't think so. Supreme Court doesn't think so either.



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Response to wjbarricklow (Reply #48)

Wed Jan 23, 2013, 10:53 AM

62. Troll

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Response to wjbarricklow (Reply #48)

Wed Jan 23, 2013, 11:09 AM

63. Of course the right applies to individuals...you want to join the Militia, have at it!

Haven't heard anyone trying to infringe all that much on your ability to do so yet.

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Response to wjbarricklow (Reply #48)

Wed Jan 23, 2013, 01:20 PM

75. This is a left board. Why are you here, if you don't like the left?

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Response to stopbush (Original post)

Tue Jan 22, 2013, 06:59 PM

16. That is exactly the same way I would interupt it.

Last edited Wed Jan 23, 2013, 01:58 PM - Edit history (2)

Thanks for that info. I always thought militia referred to those sick armed Right wingers hoarding guns and ammo...ready and waiting for the big bad Gov. to take their guns.

I hope someone points that fallacy out to them. Great post!


(Side note- Thanks Klook)

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Response to Auntie Bush (Reply #16)

Wed Jan 23, 2013, 01:54 PM

88. I am sure you are much too polite to interrupt.

Sorry, I could not resist.

That is exactly the kind of thing I would post, only I would have made more errors.

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Response to stopbush (Original post)

Tue Jan 22, 2013, 07:20 PM

23. For the most part you are right, as I have posted numerous times in numerous threads here.

Don't forget an important enumeration in Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

This is where you err:
The Militia (plural) were State entities. There is NO definition of 'the Militia' in the Constitution because they already existed...just like 'State', 'people', 'United States', etc.. They had existed for decades in the commonwealths and had been more recently codified as mandatory 'for the Union' in the Articles of Confederation.

Article VI
"No vessel of war shall be kept up in time of peace by any State, except ... but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered..."


Constitutionally the Militias could only be these State entities - those were THE Militia given the vital role of securing our liberties, as made mandatory in SA1S8; the Militia of the several States, the only ones the President SHALL be CinC of as in A2S2, and the militia which were declared necessary in the 2nd. What is defined in the Constitution are the powers Congress was given over them to better ensure they would be well-regulated. And of course the power to provide for them being called forth, etc. The Congress did NOT get power to create or recreate the Militias, as they eventually would do with the Dick Act.

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Response to stopbush (Original post)

Tue Jan 22, 2013, 07:59 PM

29. It does say that

but there is no reasoning with those who will keep every gun with every feature. They will argue that SCOTUS agrees with them (which it sort of does, for the first time in history), that later laws trump the Constitution (read other responses like those citing 1903 laws), etc. etc.. When that fails, they will try the "you're safer if we have the guns" argument. Next come the appeals to pragmatism. It is fascinating to watch.

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Response to stopbush (Original post)

Tue Jan 22, 2013, 11:26 PM

46. what's the difference between a GOVERNMENT-founded, GOVERNMENT-trained, GOVERNMENT-armed, GOVERNMENT

 

run entity and a standing Army? Why make the distinction in the second amendment if there was no distinction? I am no more in favor of a large standing Army than the the Jefferson Republicans of the 1790s as opposed to the federalist's, led by Alexander Hamilton who favored a large standing army. Jefferson rightfully felt that a large standing army would give rise to the kind of government abuses they had just fought a war to avoid. Hamilton was less worried about it. Over the years, and especially in the post WW2 cold war era, we have turned into a militaristic nation. President Eisenhower warned us about this but it happened anyways. I was under the impression that democrats were generally opposed to this militarism so I am always surprised to hear democrats defending the large standing Army federalist model.
I personally don't want to pay for the military and I don't want to pay for wars that inevitably result from their existence. We have better things to spend our money on. The militia system guarantees that if the casus bellum is unjustified, the war doesn't happen (think Iraq). The militia system also promotes a defensive position rather than an offensive one which I think we all agree is preferable(again, think premptive war in Iraq). the militia system also prevents the country from going bankrupt as it struggles to feed the ever growing "monster" (thank you steppenwolf).

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Response to stopbush (Original post)

Wed Jan 23, 2013, 02:53 AM

50. Because amendment 2 isn't tied to militias the way you think it is.

Amendment two is a restriction on federal government now also incorporated against the states, nothing more, nothing less.

Its a restriction on government, contained in a laundry list of restrictions on government, otherwise known as the bill of rights.

The nature, purpose, and intent, of the document itself, is to restrict government.

The framers even took the trouble to spell that out explicitly in the preamble to the bill of rights:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

http://billofrights.org/

Written in modern language, it would read:

Because 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 infringed.

People that think amendment 2 "authorizes" anything, or "grants" anything, need to brush up on constitutional theory.

Clearly, the framers considered infringement of the right of the people to keep and bear arms, misconstruing or abusing the power of government, or they wouldn't have authored amendment two and placed it 4 inches below a paragraph stating their intentions to prevent government from doing just that.

Various state constitutions mirror and echo that exact sentiment as well, many putting a finer point on it, many of them written and enacted around the same point in history.




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Response to beevul (Reply #50)

Wed Jan 23, 2013, 01:26 PM

76. IOW, you did not understand the OP.

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Response to stopbush (Original post)

Wed Jan 23, 2013, 01:27 PM

78. It really does not matter, if the second amendment means no limits then it is broken

and needs repealing. We have repealed amendments before and we must again or this country will be over within 100 years.

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Response to CBGLuthier (Reply #78)

Wed Jan 23, 2013, 02:34 PM

91. "Well regulated" means, well, well regulated. And "well regulated" does not mean no limits.

The Republican appointed Justices make decisions on the basis of politics, not the wording of the Constitution nor the original intent.

I think everyone can agree on that.

The Democratic appointed Justices seem to do the same these days, though. It's simply that they are in the minority.

For now.

ETA. However, if anyone wants to settle for unlimited, authentic muskets, I'll stretch a point.

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