Question regarding a "well-regulated militia" and the security of a free state:

Since the second amendment explicitly states that the existence of a militia is to protect the security of a free state, and moreover the whole concept of a citizen militia, going back to ancient Rome, is that the republic can call upon this militia when it chooses, and as both Eisenhower and Kennedy federalized the state national guard in order to enforce Supreme Court decisions regarding civil rights issues -- could the president federalize these so-called militia groups and place them under the authority of the Pentagon and make them subject to military discipline? Could the President do the same with companies like Blackwater? Conscript all the mercenaries and make them all grunts and give them standard army pay?

Anybody know what the actual legalities are on this?

it was state militias that got federalized. Federalizing unorganized militias would be tantamount to a draft.

The Militia acts are precisely the underpinning for the Selective Service, aka the "Draft". Those members of the population that are defined as the unorganized militia of the United States, able-bodied males from 18 to 45 are subject to being called up, even if at the present time it is not being done.

It is the reason your SON must register at age 18, but your daughter does not.

If you have any relatives who remember the draft, they should be able to point out that their service numbers and ID cards differed from members of the Regular Army. Root through their old stuff you will see their dog-tags had an US prefix to their service number and their ID card was AUS "Army of the United States" Guardsmen had NG service numbers while reservists were ER.

It is all in Title 10 and Title 32 of the US Code. Those who have prior military service are subject to recall to active duty until age 60, while military retirees are on the hook for life

Seems that would mean there is some form of government control??

"Well regulated" implies that something is regulated well. It offers no insight into the nature of that regulation or who will be doing the regulating. A militia could be "self regulated well". Regulation could imply oversight by some unnamed authority, or the actual practice of whatever training deemed appropriate to the members of the militia or whatever authority those members have selected.

While the designated authority and nature of regulation in the second amendment is vague, the "right of the people to keep and bear arms shall not be infringed" is quite specific.

Actually, the meaning of the word "regulated" in the 2nd amendment means basically "well trained" or "drilled". To that extent, they weren't the rabble that is trying to form up in Michigan and Oklahoma. But strangely, if Oklahoma did establish this "volunteer militia" the president would be able to "federalize" them. Now, of course, they're volunteers, so concievably they could unvolunteer.

managed to hook up with an Oathkeeper who happened to be a former DI they wouldn't be rabble any more. But they would still be civilians bound by the law of the land.

already law in Oklahoma and cant be federalized the "Unorganized Militia" in Oklahoma as remembering from school can not leave Oklahoma and is similar to a posse(instead of a sheriff forming or asking for volunteers the Governor does it) and it is used for search and rescue for state emergency's as I remember

§44-41. Composition of Militia - Classes.
The Militia of the State of Oklahoma shall be divided into three (3) classes: The National Guard, the Oklahoma State Guard, and the Unorganized Militia.


23. “State military forces” means the National Guard of the state, as defined in Title 32, United States Code, the organized naval militia of the state, and any other military force organized under the Constitution and laws of the state to include the unorganized militia (the state defense force when not in a status subjecting them to exclusive jurisdiction under Chapter 47 of Title 10, United States Code).

The people in the Colonies had weapons to hunt with and to supply food for their families. They had no standing Army. They formed militias to protect their villages and towns from invasions from the British and others. In a short time, they could be gathered together with their weapons to defend themselves from any incoming enemy. The right to keep and bear arms must be viewed in that context also.

"The Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." District of Columbia v. Heller

I think we have the right to keep and bear arms, for protection, for hunting, or for other purposes. However, I am not sure we have the right to join an unregulated and unorganized gang and call it a "militia"??

So they like to call themselves a militia because it sounds a lot better than a gang or bunch of thugs but it doesn't give them any real legitimacy.

meant at the time it was written. A person could own a firearm or a sword or a pike, but unless he was part of the organized militia he was NOT 'bearing arms'. After all, a woman or child could possess a gun for hunting, but nobody would consider them to be 'bearing arms' or part of the militia.

Just because the five RW nutbags on the SC says something is so, it does not mean they are right. Remember, a majority of the SC once said that blacks were not human beings, but property, like farm animals.

You can ONLY come up with the Heller decision if you ignore the meaning of 'bear arms' and ignore the opening phrase of the 2nd tying such arms to a well-regulated militia.

4 said that while it's an individual right, it can be regulated to the extent that DC wanted.

"The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. "

^ Stevens' dissent..

"(1) The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. See,
e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS,
J., dissenting)."

^ Breyer's dissent

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf (p68)

NOTHING to do with the 2nd amendment, which is about control of state militias.

That is why the sane 4 dissented, saying it can be subject to local regulation. And even the most rigorous regulation allows for some personal weapons - even in Chicago, DC, and NYC - for those who meet the regulatory standards.

The RW activists on the court twisted the 2nd to say something it doesn't say. The 2nd amendment is no more about personal ownership of guns than it is about personal ownership of swords - if it was, there would be uprisings about the banning of blades longer than 6 inches, the outlawing of switchblades and butterfly knives. Why hasn't the SC addressed THOSE issues based on the 2nd amendment?

Private gun ownership should be better addressed by the 4th amendment (secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...) - if you do nothing wrong the state has no grounds for seizing your weapons. Very un-ambiguous.

..switchblades.

Sure the 'knife' advocacy groups aren't as high profile, but they're working on protecting your right to carry a knife just as hard.

http://www.securitymanagement.com/news/new-cbp-rules-will-redefine-many-knives-switchblades-005825

Your statement above, the first of your post, DIRECTLY contradicts the two quotations from the dissenters. The dissenters are most definitely saying that the individual right has something to do with the Second Amendment--specifically they are saying that the Second Amendment protect the right you attempt to dismiss:

"The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. "

"(1) The {Second} Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. See,
e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS,
J., dissenting)."

You probably missed the fact that, while you present your position as a repudiation of the opinions of "five RW nutbags on the SC" it is actually a repudiation of THE ENTIRE SUPREME COURT OF THE UNITED STATES OF AMERICA. It is common for those taking a position against the Constitution and against the Second Amendment in particular to suffer from convenient reading comprehension that allows them to severely misinterpret words--always in ways that "advance" their arguments. This no longer surprises me, but I still occasionally take the time to point it out.

You are of course correct to note that the entire Court can, and indeed has, been wrong. But let's not pretend that you are not contradicting the liberal members of the Court as well as the conservatives.

Your point is that the entire Supreme Court of the United States (along with the majority of the American people and the President and the Congress) are all wrong and RaleighNCDUer is right. State your position accurately.

- Alabama Constitution


- Mississippi Constitution


- New Hampshire

If bear arms means ONLY in context of military service. How does an individual bear arms in defense of home or family?

Do they form "an army of one" and thus defending their home from attack is now magically militarys service. :)

It makes no sense to consider "bear arms" to mean only military service and then include provisions for protection of self, family, and property via bearing arms by individuals.

Replace bear arms with military service....
"All persons have the right to participate in military action in defense of themselves, their families, their property and the state"

Doesn't quite work does it?

There is no historical context to back up the claim that "bear arms" means ONLY military service. While "bear arms" CAN mean military service it certainly isn't limited to just that. There are many historical documents not just the State Constitutions but letters between founding fathers, newspaper articles, dictionaries of the time that indicate "bear arms" simply means use weapons.

You can bear arms in defense of your nations but you can also defense arms in defense of your home or family.

means to carry something, in this case a weapon.

It is already illegal to bear arms against the United States Government and any group, whether they call themselves a militia or not, will be incarcerated if they are not killed first.

History, and the rules, are written by the winners.

Not beyond an interest in historical research.

A "foreign enemy" today could be a car load of gang bangers that drove across town. The founders could not have forseen the degree of mobility, racial and ethnic intermingling, information technology and a host of other cultural complications that we have today. But they understood human nature. And they understood that people can be as barbaric and cruel as they can be noble and brave.

We have a supreme court to interpret the constitution in light of the needs of today. The mountain of case law that has been written are the regulations that define what any unorganized militia may or may not do.

but the question of "where" has never been answered to everyone's satisfaction. Even Heller used the phrase "in the home." I believe that most Americans do not have a problem with the concept of RKBA for home protection or hunting.

For most thinking people, and on first glance, open carry and CCW seem to be a social step backward. Rational proponents of open carry and CCW also need to do a better job of explaining how they are different from those right-wingers who hold armed rallies for the express purpose of threatening our Constitutionally-elected government.

Are the same people who view a person protecting themself in their own home as looking for trouble or being bloodthirsty, because they didn't take a flying leap out of their second story window to try to get away from their intruder.


I think we can safely discount anything they have to say on the matter as unbelievably biased against a person having the audacity to try to stop an attack on themself.


I also cringe every time I see some dildarian claiming that we are on the cusp of requiring a revolution. We are not. The nation is nowhere near needing that kind of response. The government isn't perfect, but it isn't a tyranny at this point by any means.

Though there are some things that REALLY need to be ended, like the war on drugs, I don't know about you but I can't abide the thought of ANY war on U.S. soil, and that particular one is rife with corruption and overstepping of legitimate government boundaries in the name of "law enforcement".

"such as in the home", indicating that the home is not the only place arms may be borne.

the decision:

On June 26, 2008, by a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, stated, "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense...

-Snip-

With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the "in common use at the time" prong of the Miller decision: since handguns are in common use, their ownership is protected.

The Court applies as remedy that "assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

The Heller decision was not a comprehensive interpretation of the Second Amendment:

The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field."

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

Various City, County, and State jurisdictions have come up with differing interpretations of 2A on their own, and the issue of open-carry and CCW has not been addressed on a National basis as yet. Both proponents, and opponents, of broader gun rights are convinced that their opposing interpretations of 2A are empirically correct. I suspect that the rational answer is, as it usually is, somewhere in the middle with the reality being that ALL "rights" come with reasonable restrictions and responsibility.

"and to use that arm for traditionally lawful purposes, such as self-defense within the home. "

http://www.law.cornell.edu/supct/html/07-290.ZO.html

Sec II A, para 2.

quoted IS actual text (look for the quote marks). Even the current SCOTUS band-of-crooks (same assholes who appointed Dubya) admitted that they did not expand, or reduce, any other 2A interpretations other than the very specific case of Heller being allowed to carry in his home, and that his firearm did not need to be "locked." They were very careful to point out that the Heller decision was not "comprehensive."

Your interpretation does not change the case law which was settled by Heller, and that specifically applied to the D.C. gun law in the home. It does not establish either precedence, or groundwork for national open carry, or CCW.

The broader ruling, for the first time, recognized that individuals have the right to own firearms (which was a given anyway). It did not, however, address where they could carry them -- except in the home.

.. is unconstitutional.

"We affirm the judgment of the Court of Appeals."

_Everything_ else is spin and interpretation.

specifically applied to handguns in the home as stated several times in the decision.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

you quote (cherry-picked?) was NOT a part of the decision summation, but a part of the reasoning. Reasoning and argument does not qualify as a part of the majority decision. They freely admitted that they purposely produced a very narrow decision restricted specifically to the Heller case. The issue in Heller was that part of the D.C. law which prohibited Heller from carrying an unlocked weapon in his home. That was also the issue in the lower court appeals case which was upheld by the SCOTUS.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.


If you believe that the specific mention of the phrase "in the home" three times in the two-sentence language of the actual decision summation is "spin," then it is SCOTUS spin, and not mine...;-)

The substance of Dick Heller's complaint was that (and I quote the ruling) "He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused." Accordingly, the SCOTUS' decision focused in the possession of a firearm within one's home, because that was what the complaint was about. That focus does not imply that the right to keep and bear arms does not apply anywhere except in the home; that particular aspect of the Second Amendment was simply not under discussion in the case.

point of my argument. Some people believe that there was much more to Heller than was actually addressed, or decided. Justice Breyer, as noted in the decision, "chided" his colleagues for not going further, and expanding the decision to interpret other "applications" of the right to keep and bear arms. In response, Scalia wrote: ..."there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us." {Emphasis added...}

I have never argued that the 2A provisions of the right to keep and bear arms should be unduly curtailed, but only that they be reasonably regulated, using the "reasonable man" criteria of established law. By and large, that standard has been, and is being, applied in most jurisdictions. The issue of open carry, and CCW in crowded public venues (as opposed to remote and rural areas) is still evolving, and produces convincing arguments on both sides.

In my entire 69-year lifespan (with the exception of duty in a combat zone) I have never seen or been exposed to a civilian openly carrying a firearm in public. As for individuals carrying concealed, I sincerely doubt that I have been around many of them either, as all of my adult life has been spent in Hawaii. I have many friends who are hunters (deer, goat, pheasant...) here on Maui, and frankly the subject of open carry and CCW never comes up.

So, contrary to what some seem to believe, it is possible to support the Constitution and its enumeration of certain restrictions on the Government pertaining to our Civil Rights, while still recognizing that ALL freedoms and rights come with social responsibilities and reasonable restrictions. It is also good to remember that convicted felons and the mentally-challenged retain their Freedom of Speech, and other civil liberties, even though they are not allowed to possess firearms.

here are the last four paragraphs of the decision taken from the link you provided:

Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

*  *  *

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

It is so ordered.

Emphasis added...

Well regulated had a meaning of in good order, functional, capable.
Watches and trains need to be well regulated to be effective.

:shrug:

In the context of not having a standing army because even in 1776 the founders knew a large standing army was dangerous and would entangle us in numerous unnecessary wars? Well on that front it has been a complete failure. Not only do we have a standing army we have the most expensive standing army in the world.

In the context of guaranteeing the individual right to bear arms? Pretty damn successful when you compare that right to other nations who had similar right codified at the same time. British citizens have (had) a right to keep and bear arms for personal defense. This was codified in English Bill of Rights of 1689 however you would be hard pressed to reconcile restrictions on private ownership today with the right codified in 1689.

Ownership of guns was for the purpose of maintaining a "Well regulated Militia" Are you suggesting that every person that owns a gun has been "well regulated"? I find that laughable.

however the clause doesn't limit the right.

If we had an amendment that said:
"A well informed citizenry being necessary to the success of a Democracy, the right of the people to keep and read books shall not be infringed."

Would you say the right to keep books was limited only to voters? only active voters? If you stopped voting could the govt seize your books?

Or would it make more sense to read it as a goal and method?
The goal is to have a well informed citizenry thus the people having a right to keep and read books facilitates that goal.

That interpenetration is what the courts have recognized. The first clause is the reason but doesn't limit the right.

You cannot become "well regulated" regarding firearms until you bear them. Can't train without first somehow acquiring the item to be trained upon.

that the word regulated, as related to firearms, specifically implies an adjunct to military service.

A watch needs a watchmaker, a train needs an engineer. They are machines governed by their physical properties and designed for a specific function. The cultural phenomena of a militia also has a function and is defined by the laws and customs of the culture in which it is formed. The real question is the purpose of that militia and how it functions in the society in which it appears.

As private citizens and members of a militia, regardless of its function, those citizens are already regulated by a ton of federal, state, and local laws regarding how it will operate. There are laws regarding what kinds of weapons may be owned, how they are obtained, and how they are transported. There are even laws defining rules of engagement between citizens with firearms. Private militias are already regulated, and those regulations are evolving all the time.

This isn't the late eighteenth century. I personally don't concern myself too much with how the founders understood a given term because the founders understood that while technology, cultures and allegiances change, people don't. The beauty of the constitution is not in its lexicon, but in its longevity through interpretation in response to a changing world.

In 1792 and again in 1795 Congress passed a Militia act. Thus the act was passed twice, once before the Bill of rights was passed, and one after. It is the same act, the sole purpose of the 1795 act was to correct typos in the act nothing more.

The 1795 act would remain the law on Militia will the Dick Act of 1903 Federalized the National Guard. Now, some people (including myself) question the constitutionally of the National Guard as it existed from the Civil War to 1902, but the Federal Government NEVER challenged its constitutionality and since the Federal Government was the only entity that had standing on the issue, the National Guard constitutionality was never challenged, The attack on the pre-1903 National Guard is that is DOES NOT MEET THE UNIVERSAL SERVICE REQUIREMENTS OF THE 1795 ACT NOR THE GENERAL CONCEPT OF UNIVERSAL SERVICE TIED IN WITH THE MILITIA (and codified in the 1795 act). The 1902 Dick Act clearly made the National Guard Constitutional either as the Militia OR as federally approved State Troops (The US Constitution forbids the State to have "Troops" unless approved by Congress, the National Guard always had more elements of being a Regular armed forces i.e. "Troops" then Militia and thus why, in my opinion, prior to 1903 the National Guard was unconstitutional.

Now, the 1795 act required all "White males" (Which by the post Civil War Amendments includes African Americans and all other males) between the ages of 18 and 45 to be members of the Militia unless exempt (and such exemptions only existed for people in political offices that needed to be filled even if the Militia was called into service). Such Militia members had to provide they own weapons, 20 rounds of ammunition and a pack to carry tent-age, blankets and food. The act restricted the weapon to be used to the standard combat weapon of the time period and set a pattern for drill etc.

At the same time the Same Congress set up the Regular Army and issued to said troops, Weapons, Clothing, tent-age, blankets and ammunition. Unless the Militia which only drilled once a month, the Regular army drilled daily.

If you compare these two you see what Congress of the 1790s thought was the difference between Militia and Troops. Troops were full time, and all equipment was supplied to them. Militia was part time and all equipment they themselves had to supply. What became the National Guard slowly took these concepts and started to say if the job was part time it was Militia, while if it was full time it was troops and thus the National Guard, despite the fact that the arms and equipment was issued to the men who enlisted in the Post Civil War National Guard, were Militia not troops. This meant the States did NOT have to get Federal approval for them as troops and as such constitutional without Congressional approval. I believe that such units where arms and equipment were issued to the men were Troops and thus unconditional without congressional permission. Now this is all moot, for since 1903 the National Guard had existed with Congressional approval, so is has been constitutional as either militia or State Troops since 1903.

I mention the above for it relates to what is the Militia. Under the 1795 act it meant the whole people of the US. Even the 1902 Act recognize this but not only calling the National Guard the Militia, it also says (and it is still the Federal law) that all men NOT in the National Guard or the regular forces, are members of the "Unorganized Militia".

Now the wording of the Second Amendment was written to shut up opponents of the federalized of the Militia under the US Constitution. It was worded to do two things, first to assure people that if the Federal Government did NOT organize the militia the state could and if the state did not the people can do it themselves. The second thing Congress wanted to do is NOT interfere with any federal organization of the Militia. Thus the wording of the Second amendment AND the 1795 Militia act. The Militia is to include everyone and called into service when and how needed.

For more on this subject see my previous posts on this subject:
A 2004 post with citation, but most cites are no longer valid:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x80353#80697

Of the cites on the General Strike of 1877 only two are active:
http://users.crocker.com/~acacia/text_gsif.html
http://www.ranknfile-ue.org/uen_1877.html

This site was move, this is the new site:
http://www.socialistappeal.org/content/view/135/55/

My cite for the Russian Revolution was still good, but my cite for the 1918 German Revolution was not:
http://www.emayzine.com/lectures/russianrev.html

My cite to the Embarrassing Second amendment was still good:
http://battleflags.tripod.com/embaras.html
http://www.law.ucla.edu/volokh/2amteach/interp.htm
http://www.saf.org/LawReviews/Dowd1.htm

The Actual Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

Copy of the Federalist Papers:
http://www.law.ou.edu/hist/federalist /

The present day Militia act (Re-written about 1902 as part of the Dick Act, and then re-written sometime after WWII to include women (probably in 1947 but I have NOT checked when it was last modified) in the active National Guard):
http://www4.law.cornell.edu/uscode/10/311.html

Patrick Henry on the Militia and the Constitution (Prior to the Passage of the Bill of Rights):
http://www.constitution.org/rc/rat_va_13.htm#henry-09

They, no doubt, feared that someday the British might come sailing back to America & take over, so it made sense to send the citizen soldiers back home with their guns, just in case they had to re-muster an army.

The guns issued to the soldiers would be better used , in their own hands, to use for hunting, & maintenance, than to be stored away in some depot, only to have to be redistributed in case the army had to re-group.

I'm pretty sure the founders did not intend for locals to band together & create their own little backwoods armies, or to run around terrorizing people they did not "like"..

and war with Canada wasn't off the table.

(Read my post #12)

private groups are beyond that kind of government control.

And why the hell would the government want such whackos in the first place??

The fear was that the federal government could effectively disarm state militias by not funding them. If the people could keep their own guns, the federal governemnt could not disarm state militias.

What do you think the Selective Service registration is all about? Members of the "citizen militia" may be called up for military service or training any time the government wants.

The government hasn't wanted to do so since Vietnam, but the system itself is still in place, and registration is still required by law.

the "citizen militia" is regulated by the federal, state, and local authorities through current gun control laws. And laws requiring members of the "citizen militia" to pass background checks and take classes in proper firearms handling and use are training (regulations) regarding rules of engagement.

I tried to research this a few years ago and came up against a brick wall. A few lawyers had tried to piece things together, but had precious little in court cases to review. Historians tried to find writings from the founders explaining the wording in the amendmwent and came up with little.

Until recently, this was the second least-litigated amendment in the Bill of Rights-- the least litigated one being the third, prohibiting the quartering of troops in peacetime.

Back then, Virginia was the largest and wealthiest colony/state and produced some of the great minds of the day. George Mason was one of them, and he wrote the Virginia Declaration of Rights, which influenced the Bill of Rights.

Here's Mason's wording:

"Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

I have no idea why the wording was changed to be so vague in the 2nd Amendment.

.. specifically http://memory.loc.gov, you can see the different drafts and the transcripts for the different versions.

It's a terribly slow slog through all of it, in flowery cursive writing (not all of it is transcribed), but it's there.

knowing that every comma in the Constitution was bitterly fought over.

.. and the rules of grammar weren't hard and fast.

I don't think there's any way to argue meaning based on commas from documents at that time.

In any case, arguing the intent of the second amendment is like arguing the intent of a stop sign based on the bolts holding it up.

what constitutes a "militia", and what can be federalized. In the case of Blackwater, this is presumably a state-chartered corporation, and is in some sense an outsourcing of national defense. It seems to me the president could, especially in a situation of national emergency, federalize this militia, just as JFK and Ike did the national guard. That in effect, citizenry trumps private ownership.

The mercenaries of backwater are legally employees of a for profit corporation.

The govt can "mobilize" the militia, the militia is composed of all able bodied members of the population. You (depending on your age likely are part of the militia and can be mobilized). That mobilization is called the draft.

A forced mobilization of selected individuals for the purpose of punitive action likely will not be found legally.

If you want to get rid of Blackwater the solution is far simpler. Blackwater exists solely because govt funds it (via contracts). No contracts = no Blackwater.

http://en.wikipedia.org/wiki/Militia_%28United_States%29



And I expect the answer to your questions is No. Not without a general draft drafting all males 17-45.

The idea was really about the citizens being called up by the government to serve as an army if needed and it was cheaper if they brought their own guns. It was a very different time and place and despite the Jeffersonian rhetoric it had nothing to do with citizens keeping guns to overthrow a tyrannical federal government.

Legally every colonist was a British citizen and as such their actions were treasonous.

History is just written by the winners. If the rebellion had failed we would still be part of British Empire and July 4th would be a day to mock those seditious scumbags (George Washington, Jefferson, etc).

But thanks for the history lesson, chief.

If citizens attempted to rebel no doubt our govt would attempt to stop them (just as British govt did).

If the rebellion failed the leaders would be considered terrorists.
If they succeeded then history would view it much differently.

The 2nd doesn't guarantee a rebellion it simply guarantees access to arms (which is necessary component of a rebellion).

The Bill of Rights was just haphazardly thrown together one night over some beers. Damn that James Madison for not proofreading.

In circa 1776 States had far more sovereignty than they do today.

The structure was closer to what EU "states" have in relationship to central EU control that what we have today.

A state militia could be used to facilitate rebellion against a corrupt central govt.

The Civil War shows us the central govt will strike back (not that I consider abolishing slavery to be tyrannical). History is written by the Winners. Had the south succeeded it is entirely possible State militias (and thus balance of power between federal & state) would be very different in the remaining United States today.

That's all well and good, but it doesn't change the original language or purpose of the 2nd Amendment. There is nothing in the 2nd Amendment about state militias rising up against a corrupt central government. The only use of militias at the time of the Bill of Rights was as a substitute for a standing army. You are seeing what you want to see.

The right is for the PEOPLE. The fact that the right is necessary for effective (well regulated) militia to exist doesn't limit the right.

The people have right to keep and bear arms. It is a rather simply (although for some people scary) concept.

Of course the genius of the document is that is it meant to be a framework subject to interpretation. You are free to have your interpretation. I have no problem with it as a practical matter. It's still not what the document said or why it was put in there in the first place.

Still the historical context, other supporting documents, court decision, and anylysis by Constitutional scholars all points towards an individual right not connected to service in Militia.

You are aware that all 9 justices ruled that the 2A protects an individual right. The only disagreement is what level of restrictions the govt can place on that right.

There is no legitimate claim that the 2A protects the rights of a militia, it protects the right of the people to bear arms.

as much as a general observation. I do usually associate Defense Lawyers with either being civil libertarians by nature or simply money hungry capitalists with low moral standards, mostly the former. I also always find it contrary to the concept of liberal interpretation of civil liberties in general, in favor of conservative interpretation of the 2nd Amendment, as the current position of the national ACLU and a few self proclaimed civil libertarian defense lawyers I have known.

can states have rights?

It certainly isn't in Amendment 2. The purpose of the 2nd Amendment is to ensure "the security of a free State" via the people keeping and bearing arms and being able to form militias.

It is one of my pet peves when other people do that and then I go and do it myself. :)

Every state constitution that I'm aware of includes a definition of the composition of its militias.

Any private citizen group that calls itself a "militia" is really just a club, or a gang.

For California:

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.



125. The following persons shall be exempt from military service:
(a) Persons exempt from military service by the laws of the United
States.
(b) Regular or duly ordained ministers of religion.
(c) Students preparing for the ministry in recognized theological
or divinity schools.
(d) Pilots and mariners actually employed in sea service by a
citizen of the United States.
The above persons shall not be exempt from enrollment but shall
file verified claims for exemption from military service in such
forms and manner as the Governor may direct.




126. The Governor shall appoint boards in number and personnel as
will best accomplish the enrollment and such boards shall be vested
with the authority and power of passing upon and determining the
claims of exemption filed under section 125. An appeal to the
Governor may be taken from the decision of the boards by the State or
any person interested in the matter and within the time prescribed
in regulations promulgated by the Governor.



127. When the National Guard and Naval Militia are on duty as a
combined force at any time, the commanding officer of the whole force
shall be designated by the Governor. When two or more officers are
on duty in the same place, camp, field, command or organization, the
Governor may assign the command to any one of such officers without
regard to seniority of rank or branch of service.



128. The unorganized militia may be called for active duty in case
of war, rebellion, insurrection, invasion, tumult, riot, breach of
the peace, public calamity or catastrophe, or other emergency, or
imminent danger thereof, or may be called forth for service under the
Constitution and laws of the United States. Whenever it is necessary
to call out any portion of the unorganized militia, the Governor may
call for and accept as many volunteers as are required for such
service, under regulations provided by this division.



129. Every member of the militia who is ordered out, or who
volunteers or is drafted under the provisions of this division and
who does not appear at the time and place designated by the Governor,
or under his authority, within twenty-four hours from such time, and
who does not produce a sworn certificate of physical disability from
a physician in good standing, is a deserter and shall be dealt with
as prescribed in the Articles of War of the United States, or by this
division.



130. (a) Members of the militia of the state shall not be
discriminated against in enlistments, promotions, or commissions on
any basis listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in Sections 12926 and
12926.1 of the Government Code, except as otherwise provided in
Section 12940 of the Government Code.
(b) It is hereby declared to be the policy of the State of
California that there be equality of treatment and opportunity for
all members of the militia of the state without regard to any basis
listed in subdivision (a) of Section 12940 of the Government Code, as
those bases are defined in Sections 12926 and 12926.1 of the
Government Code. This policy shall be put into effect in the militia
by rules and regulations to be issued by the Governor with due regard
to the powers of the federal government that are, or may be,
exercised over all the militia of the state with regard to positions
requiring federal recognition.

drug gang calling themselves a militia.

The unorganized militis is composed of all able bodied citizens.
The organized militia is composed of what the State organized.

A group of people without legitimacy forming a "club" is neither.

The call themselves, Associations of Militia Members.

so their efforts to raise militias in order to DEFY the president are traitorous sedition.

Not that anyone cares, apparently. They want to treat it as a first amendment issue rather than a second amendment (or 10th or whatever) issue.

In either case it is a bad precedent to set, to allow these crazies to display arms in defiance of their government. And they are only doing it to advance their partisan causes in November. Shameful and crass.

They also forget that these militias would be under the command of the U.S. President.

So, militia groups that form to oppose government (as per their members) would actually be controlled by the Government. That's the "well-regulated" part.

I believe our National Guard and various State Troopers in essence function as our "well-regulated militias" for the most part. Those didn't exist back then so it was necessary to form police-style militias at the time.

As well as the entire remainder of this thread....

Was actually done durring WW2 (Per the American Rifleman) those called up became coast watchers.

No, it doesn't.

Not one bit.


It states "Because existence of a militia is to protect the security of a free state, the right of the people to keep and bear arms shall not be infringed".

It IMPLIES, does not STATE, that the existence of a militia is to protect the security of a free state.

Message removed by moderator. Click here to review the message board rules.

Even correcting his awful misinterpretation of a plainly worded Constitutional Amendment is grounds for some intarwebz psychological assessments and penis evaluations.

Funny that.

Please don't shoot me.

yet.

that what Tiger did I have to ask :rofl:

Regardless of who you define as being a "militia", yes, the Federal government, though the President of the United States, is allowed to call up the State Militias for Federal service in times of need.

The reason why the founders made this a decentralized system, rather than just giving the President his own army, was so that if the President attempted to call up the militias for an unjust cause, they could refuse him, and he would have no military recourse to compel them otherwise.

In other words, no way to enforce tyranny.

Imagine how many wars we might have avoided if all the states had to agree and work in concert before engaging in them.

The draft? People being conscripted, made subject to military discipline and given standard army pay? Now, the draft is different from the unorganized militia, but with regard to the specific scenarios you presented, yes, all of that can happen.