Reply #190: yes,

[hansberrym]

See Silviera V. Lockyear for the Collective rights point of view,
and see US V. Emerson for individual rights point of view.
See also US v. Miller for the US Supreme Court's definition of the term "militia" .


The State Rights and Collective Rights advocates urge (reasonably enough)that the term "Militia" is the same in the 2nd Amendment as elsewhere in the Constitution. And they urge that "Militia" is equivalent to "state militia". It is this addition of the word "State" in front of "militia" that Professor Amar objects to in the quote which is the topic of this thread. I show the full quote in an earlier response. Please read Mr Amar's actual words and decide for yourself if MrB is making an honest argument.



As to the Silviera argument, I do not find it persuasive because the Court does not explain the problems of grammer that are created by their definition.

If "militia" = "state militia" or maybe even "State militias" when it suits.

1) then Aricle II,sec 2 becomes redundent - ...STATE MILITIAS OF THE SEVERAL STATES... (?)
2) the 2nd mention of "militia" in Article I, sec 8 is also strained since "part" is singular, but by the Collective
rights definition we have more than one "State militia", so we should have more than one "part".
3) The plural/singular usage of militia is problematic if one assumes, as the Collective right do, that we are talking about A single state military force in the Second Amendment, but at other times state military forceS. The Silviera court uses the plural form "militiaS" to avoid the problem, but the plural form is not used in the Constitution.




Also the 9th Circuit court is being very coy about what they mean by "State militia", they seem to imply possession, as in state ownership and control of the militia, but they do not come out and say this. If they did, it would be silly since the National Guard (which the 9th Circuit court claims is the modern militia) is at the service of the Nation -the US Federal Government has ultimate control.

The reference to "the militia of the several states" (in Art II, sec 2) is more likely a referece to the residence of the persons serving. Three examples can readily be cited; one from the Virginia militia act 1785 (see US v. Miller) which refers to “the militia of the counties west of the Blue Ridge”, and another from the federal Militia Act of 1792 which reads “ …each and every free able-bodied white male citizen of the respective states, resident therein, …shall be enrolled…” ; and a third from the New York (Laws 1786, c. 25) cited in Miller “That every able bodied Male person being a citizen of this state, or of any of the United States, and residing in this state, and who are of age…Shall be enrolled…”.


Furthermore, the Silveira court offers no proof that their definition is correct, or that the definition arrived at by the Supreme Court in Miller is wrong, other than to repeat the phrases “state militias”, “state entities”, and “state military forces” over and over. Even to the point of inserting them where they do not appear in the original. On page 45 of the opinion the court cites language nearly identical to (US Const. art 1, sec 8) but inserts "state" before "militias" - note that they also add an 's' to "militia" to make it plural. This is at best sloppy, and at worst an attempt to deceive the reader. The only thing preventing the Court’s statement from being a outright falsehood is that quotes are not used . However the language is so nearly identical to the given citation that it would be hard to notice the difference from the original if one were not directly comparing with the actual wording of this section of the Constitution.

Note that nowhere in the Constitution does the phrase “state militia” appear, yet the Silviera court repeats this phrase ad nauseum. And if “Milita” really means “state military force” why does the court need to refer constantly to a "state militia" ?, wouldn’t that redundantly refer to a STATE STATE MILITARY FORCE ?




A look at some of the postings of Bulldozer will give more background on the legal definition of the term "militia". I do not think it a good argument to say that the laws and regulations that Congress has passed in the last 200 plus years, pursuant to thier authority under the same Articles and section of the Constitution that you have cited, are not relevant to the meaning of the term "militia")

Particularly interesting to look at is the (US) Militia Act of 1792 (first)for what is meant by "arms", who is to supply them, and who is to keep them.