First Supreme Court case re: 2nd Amendment in 70 years

[FlaSoxxJim]

BTW, you, me, and most people on Soxtalk are already members of the militia.

 

A point well-taken and one I had already noted a couple of posts earlier, via Jefferson:

 

"Every able-bodied freeman, between the ages of 16 and 50 is enrolled in the militia. .... In every county is a county lieutenant, who commands the whole militia of his county. .... The governor is the head of the military, as well as the civil power. The law requires every militia-man to provide himself with the arms usual in the regular service."

 

By 1802 the central government had collected enough data to realize that the citizens were very under-armed, and by 1808 there began to be an annual allocation of federal dollars to help arm the citizen militia. It was an amount that was not even 1% of what would have actually been required to fully arm the people, but it demonstrates early precedent for the government to assume some responsibility for arming the citizen army, ala the national Guard.

 

 

This code was revised in the 50's, so it isn't just an 18th century hold-over. It also clearly states that the militia is NOT the same as the National Guard.

 

This is the part I'm not up to speed on. If you can, please provide those pertinent bits from the 1950's revisions that clearly distinguish an American citizen militia from the National Guard. I will certainly add this information to my considerations on the subject.

 

btw, it's not just me an a handful of liberal constitutional scholars that see the National Guard as the only extant lawfully sanctioned proxy for the citizen militia Jefferson had in mind. The Guard itself points this out and is extremely proud of that heritage. They specifically cite their charter as the militia clauses in Article I, Section 8 of the U.S. Constitution.

 

Here's a really good National Guard page that sumarises all of the constitutional and federal legislative acts that sanction today's National Guard.

 

I think the actual strawman in the debate is the notion that any modern mechanism exists by which you, me, most people on Soxtalk, and the citizenry in general could be called into service in the manner Jefferson envisioned. The experiences f the American Revolution, I think, gave Jefferson a faith in a citizen militia that was entirely unrealistic, and this was borne out in any post-Revolutionary conflicts in which the militia was called into service. If, in fact, the mechanisms for a callup of the average citizen are broken, then I think it is a charade for gun-toting contingent of the population to cite the civil defense need for an armed militia as per 2A as the primary protection of the right for individual gun ownership.

 

 

[StrangeSox]

This is the part I'm not up to speed on. If you can, please provide those pertinent bits from the 1950's revisions that clearly distinguish an American citizen militia from the National Guard. I will certainly add this information to my considerations on the subject.

 

It's in the code I posted:

 

"10 USC CHAPTER 13 - THE MILITIA

 

Pertinent portion:

 

(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."

 

If the National Guard WAS the militia, that part would be unnecessary. As its written, it clearly and cleanly identifies the NG and the militia as separate entities. Also, if the NG was the militia, this code would mean that we are all members of the NG, which isn't true.

 

 

I think the founders' stance on gun control is pretty clear and that gives you a good idea on whether or not they viewed the right to keep and bear arms as an individual or collective right.

 

I think it is a charade for gun-toting contingent of the population to cite the civil defense need for an armed militia as per 2A as the primary protection of the right for individual gun ownership.

 

Don't own a gun. Don't know that I ever will. And don't make the mistake that the primary argument for individual gun ownership is based on the need for a militia. I was just refuting the idea that the NG is the modern-day militia, no matter what they may claim.

Edited March 20, 2008 by StrangeSox

[FlaSoxxJim]

It's in the code I posted:

 

"10 USC CHAPTER 13 - THE MILITIA

 

Pertinent portion:

 

(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."

 

OK, I can follow that so far. Now, where is the modern mechanism by which all able-bodied citizens are called to national service in the militia? If that is laid out equally well, I'll have to revise my opinion considerably. As of now, my belief is that a callup of average able-bodied US citizenry is not actually possible and so my citing 2A as ensuring my right to own a gun because someday I'm going to get that call is flawed.

[NorthSideSox72]

OK, I can follow that so far. Now, where is the modern mechanism by which all able-bodied citizens are called to national service in the militia? If that is laid out equally well, I'll have to revise my opinion considerably. As of now, my belief is that a callup of average able-bodied US citizenry is not actually possible and so my citing 2A as ensuring my right to own a gun because someday I'm going to get that call is flawed.

I would suggest that the flaw in your argument is that you are assuming that 2A is only valid as part of a national call-up. Quite the contrary in fact, I'd say the right is expressly the opposite - that the militia of able-bodied citizens is a check against such a thing.

 

[FlaSoxxJim]

And don't make the mistake that the primary argument for individual gun ownership is based on the need for a militia.

 

But based on the language of 2A, that IS the primary argument.

 

"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."

 

Again, there does not seem to be much debate among constitutional scholars that securing individual private ownership of firearms was not the primary objective of 2A, and that Madison inserted the language only after Jefferson objected to the absence of a security against a standing army.

 

 

 

[FlaSoxxJim]

I would suggest that the flaw in your argument is that you are assuming that 2A is only valid as part of a national call-up. Quite the contrary in fact, I'd say the right is expressly the opposite - that the militia of able-bodied citizens is a check against such a thing.

 

How so? The militia of able-body citizens was expressly cited as needed to secure a free State.

[StrangeSox]

OK, I can follow that so far. Now, where is the modern mechanism by which all able-bodied citizens are called to national service in the militia? If that is laid out equally well, I'll have to revise my opinion considerably. As of now, my belief is that a callup of average able-bodied US citizenry is not actually possible and so my citing 2A as ensuring my right to own a gun because someday I'm going to get that call is flawed.

 

National service is not the requirement and purpose of a general militia. That's the purpose of the National Guard which is a reserve unit of the Army and Air Force.

Edited March 20, 2008 by StrangeSox

[StrangeSox]

But based on the language of 2A, that IS the primary argument.

 

"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."

 

Again, there does not seem to be much debate among constitutional scholars that securing individual private ownership of firearms was not the primary objective of 2A, and that Madison inserted the language only after Jefferson objected to the absence of a security against a standing army.

 

Even if the need is no longer there (it is), the right still exists. The second clause stands on its own.

[FlaSoxxJim]

National service is not the requirement and purpose of a general militia.

 

This is where I need remedial education. If a citizen militia is explicitly stated as being necessary for national security , how could the militia possibly meet that need if it was not required to possess the ability to be called into national service??

 

 

Even if the need is no longer there (it is), the right still exists. The second clause stands on its own.

 

Is it that cut-and-dried? I don't think so, or there would be no national debate on the issue.

[StrangeSox]

This is where I need remedial education. If a citizen militia is explicitly stated as being necessary for national security , how could the militia possibly meet that need if it was not required to possess the ability to be called into national service??

Is it that cut-and-dried? I don't think so, or there would be no national debate on the issue.

 

There's your problem; its not. It's more of a state and local-level emergency response, not a national defense force. There does not need to be government action for a militia response.

Edited March 20, 2008 by StrangeSox

[FlaSoxxJim]

There's your problem; its not. It's more of a state and local-level emergency response, not a national defense force. There does not need to be government action for a militia response.

 

I do understand that civil defense and emergency response at the local level is the primary duty of state militias, so no, that's not my problem. My problem is that Article II states that the President shall be the COC of the state militias when they are called into actual service of the United States, yet I see no functioning mechanism by which the various private fringe militias can be called to national service.

[StrangeSox]

I do understand that civil defense and emergency response at the local level is the primary duty of state militias, so no, that's not my problem. My problem is that Article II states that the President shall be the COC of the state militias when they are called into actual service of the United States, yet I see no functioning mechanism by which the various private fringe militias can be called to national service.

 

The need for state militias to be called to national service is no longer necessary because we have a standing army. As far as I'm aware, whatever mechanism was used back then is still in place today. That mechanism has always been the appropriate person (governor, President) simply calling militia members into service.

 

Many of the resistance groups in Iraq (at least early on, there's a lot of foreign influence now) were militias. There was no national direction and leadership, but it was still militias of armed citizens.

 

The national security need for a militia is pretty much defunct. That is not the only need for a militia. If you act in self-defense of yourself or others, that is an act of a citizen militia.

Edited March 20, 2008 by StrangeSox

[EvilMonkey]

How so? The militia of able-body citizens was expressly cited as needed to secure a free State.

It is to secure a free state from the tyranny of its own government, like the colonists did from England. So that if the government gets too oppressive, the citizens cn protect themselves.

[Balta1701]

It is to secure a free state from the tyranny of its own government, like the colonists did from England. So that if the government gets too oppressive, the citizens cn protect themselves.

Because my .22 is going to be able to stand up to a couple of Abrams tanks and a few B-2's.

[StrangeSox]

Because my .22 is going to be able to stand up to a couple of Abrams tanks and a few B-2's.

 

See: Iraq, Afghanistan (2000's and 1980's versions)

[NorthSideSox72]

Because my .22 is going to be able to stand up to a couple of Abrams tanks and a few B-2's.

Missing the point.

 

A country's government should be afraid of its people - not the other way around. The more freedoms a people have, the less power a government has, and that is key to the security of a free state (ref 2A). The freedom of ownership of arms is a major part of that - not the end and whole of it. Its integral to the continuing freedoms we enjoy.

 

[Balta1701]

Missing the point.

 

A country's government should be afraid of its people - not the other way around. The more freedoms a people have, the less power a government has, and that is key to the security of a free state (ref 2A). The freedom of ownership of arms is a major part of that - not the end and whole of it. Its integral to the continuing freedoms we enjoy.

To my eyes, this simply makes no sense in the modern era. Having an armed populace does not in any way make the government more afraid of the people today...because the government is so much better armed. If the government felt the urge to execute every American (and could convince the army to go along with it) it wouldn't matter at all whether or not you had your small arms. Yes, it is an additional power denied to the government and I understand that. However, pretending that the 2nd Amendment is going to keep George from declaring himself King George the 2nd doesn't make sense to me, and hence, I don't see how you can consider it integral to anything. If the right to bear arms went away tomorrow and every gun in the nation magically vanished, aside from denying a few people the ability to go hunting and making a few areas more dangerous to travel because of actual wildlife, the impact on most people's lives would be practically zero, and the government wouldn't suddenly be more able to decide to become oppressive and start listening in on all my phone calls or something like that.

[NorthSideSox72]

To my eyes, this simply makes no sense in the modern era. Having an armed populace does not in any way make the government more afraid of the people today...because the government is so much better armed. If the government felt the urge to execute every American (and could convince the army to go along with it) it wouldn't matter at all whether or not you had your small arms. Yes, it is an additional power denied to the government and I understand that. However, pretending that the 2nd Amendment is going to keep George from declaring himself King George the 2nd doesn't make sense to me, and hence, I don't see how you can consider it integral to anything. If the right to bear arms went away tomorrow and every gun in the nation magically vanished, aside from denying a few people the ability to go hunting and making a few areas more dangerous to travel because of actual wildlife, the impact on most people's lives would be practically zero, and the government wouldn't suddenly be more able to decide to become oppressive and start listening in on all my phone calls or something like that.

I just disagree. I think the government is kept (somewhat) in check by the amalgam of freedoms given to its people. And being armed is among those. The effect isn't literal - you can't just look and say that on a battlefield the people would lose. That's missing the context. An armed populace changes all sorts of government behaviors - police tactics, for example. But more importantly, its an implicit check, like a nuclear option. Its just there, never likely to come into play. But its effect is still quite real, in my view.

 

[FlaSoxxJim]

It is to secure a free state from the tyranny of its own government, like the colonists did from England. So that if the government gets too oppressive, the citizens cn protect themselves.

 

I've always accepted that notion at face value, but in looking more at what the framers actually put down on paper I'm somewhat less convinced that was what they were trying to achieve. The Founding Fathers were very wary of the masses.

 

Again, I'll ask a fellow SoxTalker to indulge me because I want to figure out how much of the standard pro/con arguments here are substantiated and how much is merely assumed.

 

Do we have written confirmation from some of the Framers of the Constitution that confirms that they intended that armed citizens would serve as the ultimate check on government power?

 

It may be going back 25 years to high school American History for me, but I still think Governor Morris summed up the Founding Fathers' opinion of the mob fairly well:

 

Poor reptiles!... They bask in the sun and ere noon they will bite, depend upon it.'

[NorthSideSox72]

I've always accepted that notion at face value, but in looking more at what the framers actually put down on paper I'm somewhat less convinced that was what they were trying to achieve. The Founding Fathers were very wary of the masses.

 

Again, I'll ask a fellow SoxTalker to indulge me because I want to figure out how much of the standard pro/con arguments here are substantiated and how much is merely assumed.

 

Do we have written confirmation from some of the Framers of the Constitution that confirms that they intended that armed citizens would serve as the ultimate check on government power?

 

It may be going back 25 years to high school American History for me, but I still think Governor Morris summed up the Founding Fathers' opinion of the mob fairly well:

I think the framers were far more fearful of an oppresive government than they were the masses. See: War, Revolutionary.

 

[StrangeSox]

To my eyes, this simply makes no sense in the modern era. Having an armed populace does not in any way make the government more afraid of the people today...because the government is so much better armed. If the government felt the urge to execute every American (and could convince the army to go along with it) it wouldn't matter at all whether or not you had your small arms. Yes, it is an additional power denied to the government and I understand that. However, pretending that the 2nd Amendment is going to keep George from declaring himself King George the 2nd doesn't make sense to me, and hence, I don't see how you can consider it integral to anything. If the right to bear arms went away tomorrow and every gun in the nation magically vanished, aside from denying a few people the ability to go hunting and making a few areas more dangerous to travel because of actual wildlife, the impact on most people's lives would be practically zero, and the government wouldn't suddenly be more able to decide to become oppressive and start listening in on all my phone calls or something like that.

 

That's another straw man. The government would never conceivably do such a thing and the 2nd amendment is not there to stop such an action (never mind that large chunks of the armed forces would break off and fight back under such circumstances). It would not benefit them. The right to bear arms is a check on oppression, not genocide.

 

Again, look at what happened to the Soviets in Afghanistan and what's happening to us in Iraq. Small groups of loosely organized people who are vastly overpowered in weapons, tactics, and numbers are causing an awful lot of problems.

Edited March 20, 2008 by StrangeSox

[knightni]

But again, as the quote that Strange posted earlier states... what difference does that make? The militia was a citizens' army, not a national one. They are one in the same for this purpose. A militia is not a standing national army.

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

 

An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or State Defense Forces.

 

No but the Army Reserve and National Guard apply.

 

If you want a handgun permit or own a handgun, you have to be active in the National Guard or Army Reserve.

 

Rifles would be different. As long as you have a license and permit you can own one. However, you need to be registered and up to date on rifle safety/shooting classes at least once a year.

 

 

 

 

 

 

[NorthSideSox72]

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

No but the Army Reserve and National Guard apply.

 

If you want a handgun permit or own a handgun, you have to be active in the National Guard or Army Reserve.

 

Rifles would be different. As long as you have a license and permit you can own one. However, you need to be registered and up to date on rifle safety/shooting classes at least once a year.

I wouldn't put too much stake in Wiki's interperetation of the word. And I am not sure where you are getting that you have to be in the guard or reserves to have a handgun.

 

[StrangeSox]

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

No but the Army Reserve and National Guard apply.

You selected one definition out of several they provide. Here's the entire definition portion:

 

The term militia is commonly used today to refer to a military force composed of ordinary[1] citizens to provide defense, emergency law enforcement, or paramilitary service, in times of emergency; without being paid a regular salary or committed to a fixed term of service. Legal and historical meanings of militia include:

 

* Defense activity or service, to protect a community, its territory, property, and laws.

* The entire able-bodied male (and perhaps female) population of a community, town, county, or state, available to be called to arms.

 

* A subset of these who may be legally penalized for failing to respond to a call-up.

* A subset of these who actually respond to a call-up, regardless of legal obligation.

 

* A private, non-government force, not necessarily directly supported or sanctioned by its government.

* An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or State Defense Forces.

* The national police forces in several former communist states such as the Soviet Union and the Warsaw Pact countries, but also in the non-aligned SFR Yugoslavia. The term was inherited in Russia, and other former CIS countries. See: Militia (Police).

* In France the term "Milice" has become tainted due to its use by notorious collaborators with Nazi Germany.

 

The Army is not a militia. The National Guard is not a militia in the sense of 2A, as it is part of the Army.

 

Here is a more complete article on the United States militia. Note that in 1903, the organized and unorganized militias were split up legally.

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

 

If you want a handgun permit or own a handgun, you have to be active in the National Guard or Army Reserve.

 

Why should only military and police get handguns? Don't civilians deserve the right to defend themselves?

Edited March 20, 2008 by StrangeSox

[knightni]

I would assume that in a word definition, that all definitions would be valid.

 

True militias are unneccessary these days, it's an outdated, and archaic ammendment.