A well-regulated militia -- The Federalist Papers # 29

[JDPriestly]

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. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; 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."

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. 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. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.

More, lots more from Alexander Hamilton

http://thomas.loc.gov/home/histdox/fed_29.html

[elleng]

1. Supremes don't want to be confused with 'legislative history'

when they don't want to be confused with 'legislative history.'

[gejohnston]

2. It is an essay explaining how Hamilton thought a militia

should be organized and why. I'm not sure what you are getting at. Are you using it as evidence for the collective rights theory? I really don't think it does anymore than "states rights" SCOTUS decisions like Presser does.

[rrneck]

3. Its been forever

since somebody dredged up FP#29. I love it when the gungeon gets rebooted.

[Clames]

4. Shhh...he thinks he's being original.

[GreenStormCloud]

5. The collective right theory of 2A is dead. The funeral has already been held.

Do what you want, it won't rise from the dead.

[safeinOhio]

7. Only one SC Justice away

from bringing back the country's traditional legal view of the 2nd.

Go Obama.

[GreenStormCloud]

8. Stare decisis.

If you read the agument in Heller you will find that the individual rights theory IS the tradition legal view. The collective rights theory that you gun controllers love started in the 20th century.

[hack89]

9. If Scalia, Thomas and Roberts can't overturn Rove v Wade

I wouldn't be so certain Heller is going to disappear anytime soon.

[safeinOhio]

10. Heller can remain, it's the details on

the prefatory clause of the 2nd. Just read Saclia's comments on Chicago. Local governments and state government can regulate types of weapons, sales and where weapons are allowed. Regulations on magazines, CCWs and possession outside of the home can and will stand. Weapons can be regulated. New challenges to any of those will be shot down.

[gejohnston]

12. they are regulated now

The Chicago case was not really a 2A case. It was a 14A case.

[hack89]

13. Perhaps - lets see what the voters actually want

so far nationally the tide is running strongly in favor of increased gun rights not less.

[gejohnston]

11. define traditional

the collective theory was created in the 1930s, but was never accepted by the court in Miller even in the one sided argument that was Miller. Every time I asked a collective rights fan to show a SCOTUS decision that supports that view, I get a list of pre incorporation of "states rights" decisions like Presser.

[rDigital]

6. Yawn......................snore. nt

[X_Digger]

14. And that has what to do with the right protected by the second amendment?

Hamilton was trying to make the case for stronger federal control over the militia. That's one paper in a series of point / counter-point arguments between those who saw a strong role for a federal government and those who saw a weaker role.

It has fuck-all to do with the right the second protects, or the scope of the right.

Washington wrote an essay on the proper way to maintain a tobacco farm- that doesn't mean Washington was against cigarette legislation, either.

[JDPriestly]

15. What does Hamilton's statement in the Federalist Papers have to do with the 2nd Amendment.

Conservatives like Scalia claim that we should look to the meaning of words at the time the Constitution and Bill of Rights were written in order to interpret those documents correctly.

The Second Amendment states:

As passed by the Congress:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.[8]

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

Congress is authorized in Section 8, Article I of the US Constitution to:

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;

http://www.law.cornell.edu/constitution/articlei#section8

I posted this to remind us that little groups of people are not authorized by the 2nd Amendment to go out and form private "militias." That is the point of my post. Very few DUers need this information, but a few DUers my run into people who do need to understand that you can't just form a violent gang, call it a militia and think you are doing the work of the Founding Fathers. You aren't. The well-regulated militia discussed in our Constitution is supposed to be called, organized, armed and disciplined by Congress, not by rogue right-wing fools or anarchists.

That's my point. Tell your friends. If you are posting on DU, you are not likely to form a self-styled "militia" under the 2nd Amendment.

[X_Digger]

16. So it's a bit of a strawman. Okay.

When someone on DU posts that they're starting their own militia, I'll be sure to point them your way.

Of course, as a male citizen between 18 and 45, I am part of the unorganized militia, per the Dick Act of 1903.

Congress has the power to organize, call up, arm, and discipline the militia- but that power is not exclusive of congress. Perhaps you don't understand how the powers of government work. No 'power' is exclusive unless explicitly defined as such.

Each state has its own means for establishing militias. There are multiple legal 'militias' in various states. (Texas State Guard or the Pennsylvania State Military Reserve, for example.)

The second amendment doesn't *authorize* anything. That's not how the bill of rights works. It is a limit to the federal (and states via incorporation) government.

See the preamble for a clarification-

[div class='excerpt']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.

Abuse of whose powers? Declaratory and restrictive clauses against whom?

The bill of rights is not a 'the people can' document- it's a 'the government can't' document.

eta: You still didn't answer my question. Hamilton's musings on strong militia control v weak has what to do with the right protected by the second amendment??

[gejohnston]

17. it is still a set of negative rights

I posted this to remind us that little groups of people are not authorized by the 2nd Amendment to go out and form private "militias." That is the point of my post. Very few DUers need this information, but a few DUers my run into people who do need to understand that you can't just form a violent gang, call it a militia and think you are doing the work of the Founding Fathers. You aren't. The well-regulated militia discussed in our Constitution is supposed to be called, organized, armed and disciplined by Congress, not by rogue right-wing fools or anarchists.

so they don't give authorization, it tells the State what it can't do. It would be more accurate to say the founders did not have private armies and gangs in mind when writing it, but it doesn't ban private groups.

[JDPriestly]

20. What makes you think they did not havge private armies and gangs in mind when they wrote it?

Those aberrations have existed throughout history.

Here -- from the 14th century.

John Hawkwood -- mercenary and terror to the countryside

If not paid, mercenaries like Hawkwood could threaten their employers with desertion or pillage. However, part of the White Company's reputation was built upon the fact that Sir John's men were far less likely to desert in dangerous situations than other mercenaries and Hawkwood soon grew much richer than many other condottieri. He bought estates in the Romagna and in Tuscany, and a castle at Montecchio Vesponi. Despite all this, it is claimed that he was illiterate. His education was rudimentary at best; contemporaries specifically remarked on his lack of oratorical skills, and much of his business and correspondence was done by proxy and later by his wife.[2]

In 1375, when Hawkwood's company was fighting for the Pope against Florence in the War of the Eight Saints, Florence made an agreement with him and paid him not to attack for three months.

In 1377, Hawkwood led the destruction of Cesena by mercenary armies, acting in the name of Pope Gregory XI. One tale claims that he had promised the people that they would be spared, but Cardinal Robert of Geneva ordered them all killed. Shortly after, he switched allegiance to the anti-papal league and married Donnina Visconti, the illegitimate daughter of Bernabò Visconti, the Duke of Milan. A quarrel with Bernardo soon ended the alliance, and Hawkwood instead signed an agreement with Florence.

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

According to Barbara Tuchmann in A Distant Mirror, Hawkwood and lesser brigands like him formed little groups and just terrorized the countryside with their killing and stealing. When hungry, they took what they wanted.

Fascinating book. I highly recommend it. The US has been blessed with very few instances of marauding gangs preying on people -- at least in modern times. But they have existed in the past. Gangs are a reality. And gangs that claim to espouse some political cause are very dangerous.

[4th law of robotics]

18. Here's a fun game: let's find the collective rights enshrined in the bill of rights

Does the first amendment ensure the right of the government to establish presses in order to preserve our collective right to state run freedom of speech?

No? What about any of the other rights. Do any of them state what the government is allowed to do collectively rather than what it may not do to us?

[Atypical Liberal]

19. What is the point you are trying to make by posting this familiar passage?

I can't tell what you are reaching for here by quoting this familiar passage.

Hamilton is basically saying that the state militias, made up of people from their respective states and lead by officers from their respective states, can be used by the federal government in times of crisis in lieu of a standing federal army.

I have no problem with this concept. The idea here was to have a decentralized military system with each state having its own army made up of citizens loyal to their respective states. Yes, the central federal government could call upon these militias for a national cause but it is understood here that being decentralized and loyal to their respective states they would not be easily wielded to suppress the people of the states. Otherwise, why not just have a central federal militia?

The problem with this concept when looking at the right to keep and bear arms today is that there are virtually no state militias that function in that manner any longer. State National Guard units today are not beholden to the states, they are actually reserve military power and functions as an adjunct to federal military power not a counter to it.

I have no doubt this is why the second amendment was written with the right to keep and bear arms reserved to the people, and not the militias, just in case this very thing happened - the militias were usurped and corrupted by the federal government.

This is why the people are the ultimate repository of arms in the second amendment.