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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsI found an interesting line in the Constitution
This is in Article I, Section 8: Powers of Congress
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...
We all know that the Second Amendment says this:
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.
If Article I says the government shall be responsible for organizing and arming the Militia, which means among other things deciding what guns the Militia should have, and the Second Amendment says that this Militia is necessary to the security of a free State, could it then not follow that the government can decide it should not be equipped with weapons like Bushmasters and AK-47s?
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JimDandy
(7,318 posts)
brush
(53,787 posts)The National Guard, state troopers, county sheriff departments, local police, not to mention the armed services are our regulated militia. We don't need unregulated yahoos stocking up on small arms and ammo and thinking they are going to take out the government, but sometimes deciding to take out small kids or movie patrons or shoppers in a mall.
ToxMarz
(2,169 posts)
harmonicon
(12,008 posts)Maybe we could forward them a pdf of the entire thing. There might be some more stuff in there.
A HERETIC I AM
(24,370 posts)Now I have beer running out of my nose!
LiberalFighter
(50,950 posts)use lemon juice and heat to find more stuff that was invisible
Wednesdays
(17,380 posts)
JaneyVee
(19,877 posts)Of course this is somewhat common knowledge, which is why the RWNJs seem INSANE when they equate assault weapon bans with Hitler and the confiscation of all guns. Until the Govt even suggests repealing the 2nd Amendment or confiscating all guns from all citizens I shall continue to look at them like psychotic deranged nutjobs with zero grasp of reality.
AAO
(3,300 posts)I'm glad I wasn't drinking hot coffee when I read that.
obxhead
(8,434 posts)If this bit was common knowledge, we wouldn't even be discussing laws regarding firearms.
JaneyVee
(19,877 posts)Jenoch
(7,720 posts)out there who havexstudied EVERY SINGLE WORD in the U.S. Constitution. Referring to that part of the constituttion as being 'discovered' is like claiming that Columbus was the first to discover the 'new world'.
jmg257
(11,996 posts)And the powers Congress was given concerning the militias (but not the people as a separate entity).
Spryguy
(120 posts)I would storngly support a repeal or alteration of the 2A and the confiscation of weapons wholesale. They'll stil be nut jobs. Maybe we can find a nice place in Gitmo for all the gun loving tea baggers.
jmg257
(11,996 posts)Constitutional roles of securing our liberties (also in section 8). The govt can not make them ineffective by causing them to use sub-par arms (they would not be 'well regulated').
Since they now also serve as reserves for the standing armies, it would not make sense to cripple their capabilities.
IF you want to start stressing the people's role in the Constitutional Militias of the Several States, then all the people would have access to the same military arms...M4, M16, M14, M9, etc. Things like gun free zones, municipalities, cities, etc would also take a hit.
MrModerate
(9,753 posts)The National Guard is a Part of the militia under this clause: 'for governing such Part of them as may be employed in the Service of the United States . . .' and hence can be armed in whatever way is necessary to perform its function, while civilians ('potential militia members,' and hence another 'part') are armed much more restrictively.
jmg257
(11,996 posts)Entities, that were only called forth for federal service for very specific reasons...(insurrections, invasion, enforce the laws).
These days the Guard Serves that role, and is identified in federal law as the "Organized militia", and the rest of us catch a bone as the "UNorganized militia". Only one group is well-regulated. And that organizing arming and disciplining is per the provisions provided by Congress, under the autority of the states.
Without the historical connection to the well regulated (govt sanctioned) militias, the people's right to arms really shouldn't be considered secured by the 2nd.
jmowreader
(50,560 posts)From Wikipedia:
The term militia (pron.: /mɨˈlɪʃə/),[1] or irregular army, is defined in the American Heritage Dictionary as an army composed of ordinary citizens[2] rather than professional soldiers or the whole body of physically fit civilians eligible by law for military service to call for service in times of emergency.
The Wolverines of "Red Dawn" were a militia.
The National Guard is a governor's army. We pay them, tax money buys their equipment, and they can be brought into federal service.
jmg257
(11,996 posts)That existed for decades in the commonwealths, always under a governing authority, and had been codified as mandatory just recently 'for the Union' in the Articles of Confederation.
The Constitution gave THOSE existing Militias of the Several States very specific roles to fill, and provided for very specific guidelines to how they would be regulated, and called forth for federal service.
Bubba and Patrick Swayze running around the woods with ARs have no association to the constitutional Militias. And We The people decided years ago that the true Militia role would indeed be filled by the National Guard.
No worries though, Bubba & Pat get thrown a bone just like most others - they can be part of the UNorganized militia.
pandr32
(11,588 posts)Militia, a noun, means:
1) a : a part of the organized armed forces of a country liable to call only in emergency
b : a body of citizens organized for military service
2): the whole body of able-bodied male citizens declared by law as being subject to call to military service
The way I see it is as long as the military is made up of citizens who have volunteered to enlist, instead of being drafted, the 2nd Amendment requirement is met. Besides, back in the 18th century we used Minutemen because we did not have The National Guard.
DeltaLitProf
(769 posts)I never got that memo.
another_liberal
(8,821 posts)As has been noted before: "The Constitution is not a suicide pact."
Of course the Government can choose what weapons its militia (the National Guard) is armed with. Nothing in the 2'nd amendment requires us to let violent felons, the insane or neo-Nazi types stockpile weapons and ammo.
Honeycombe8
(37,648 posts)or at least those that we consider assault weapons.
ZombieHorde
(29,047 posts)
Bay Boy
(1,689 posts)a full automatic weapon, right? And full automatics are VERY strictly regulated. And Bushmasters aren't used by the army.
They use select fire M-16s.
Bay Boy
(1,689 posts)...but I don't get it.
derby378
(30,252 posts)...the majority ruling seemed to indicate that an M-16 might be considered a legitimate militia weapon. From page 55:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Now, having said this, I've seen the pictures of the goofball carrying the AR-15 through JCPenney's - and he didn't even have the decency to sling it right, not to mention not enter the store with the rifle. This is clearly not the "well-regulated militia" that was intended when the Second Amendment was ratified. But if the government were to issue legislation that told me I had to hand in my Kalashnikov, and in return I'd be issued an AR-type rifle in context with the needs of an American militia (I know of only one law enforcement official in America who keeps an AK as his duty weapon, and he's out in godforsaken Loving County, TX), it would be a more understandable argument that, although it does limit me to certain weapons, both affirms my right to keep and bear arms and reminds me of my broader responsibilities to the militia.
Someone said on DU a couple of days ago that the Second Amendment was akin to a grand experiment to see if an armed society can keep it together. For the most part, we've handled it well, but when you get clusters of massive shootings such as Sandy Hook and Aurora in fairly close proximity to each other, it's easy to see where the patience of many Americans with the experiment can run out.
Nevernose
(13,081 posts)Using their constitutionally granted eminent domain powers? Never been tried and it wouldn't go well, but it's an interesting thought experiment.
derby378
(30,252 posts)This can result in decisions such as Kelo v. City of New London, which I personally find repusive in its reach, but the Supreme Court went along with it. But it only involved the seizure and subsequent sale of non-blighted private property to a for-profit developer.
another_liberal
(8,821 posts)Weapons are seized from criminals all of the time. If owning an assault weapon was made a crime, why couldn't the authorities seize them?
RB TexLa
(17,003 posts)another_liberal
(8,821 posts)But what's your point?
RB TexLa
(17,003 posts)obtained when the item was legal.
It would be akin to not allowing people to register cars that do not have seat belts or airbags made before such were required.
Forfeiture laws do not target guns, they are intended to serve as a punishment as well as a revenue stream for law enforcement. Most of the guns seized are later sold to the public (except for those that are illegal to posses of course).
another_liberal
(8,821 posts)LSD was legal for decades before it became a crime to have it in the mid-1960s. I don't remember any formerly held stockpiles of Acid being grandfathered in by the cops. If a law is passed making the ownership of assault weapons a crime, the ownership of assault weapons will be a crime. I don't see how else you can cut that.
RB TexLa
(17,003 posts)I didn't say it was not possible.
another_liberal
(8,821 posts)During Prohibition it was still legal for private individuals to make small quantities of beer and wine for their personal consumption. That was not the case with LSD, and I doubt it would be for assault weapons. A few gallons of wine is one thing, but a single Bushmaster assault rifle can kill dozens of innocent people in just a few minutes.
RB TexLa
(17,003 posts)I'm not for banning guns. I don't care to have that argument because I have no real fear that it will happen.
I was just discussing the legal aspects of property confiscation.
ReRe
(10,597 posts).... (and I am not arguing on the side of the gun-nuts. I say this because someone chewed me up and spit me out while ago because they thought I was a gun nut when I asked someone a question.)
... I think they can seize any weapon they have on them if they are caught with it and are on parole? Also, maybe when they are caught with an unregistered weapon? Just thinking out loud.... 
another_liberal
(8,821 posts)I guess that's true. Still, if having an assault weapon is the crime itself, the police surely won't charge someone with the crime and then let them keep the assault weapon? What sense would that make?
ReRe
(10,597 posts)You're right. It wouldn't make any sense. Of course they would take any gun if they were caught with it in their hands/on their body in the commission of a crime. As far as going door-to-door looking for assault weapons? I don't think that is what is going to happen. I assume gun manufacturers will not be allowed to make them or sell them anymore? Maybe someone else on this thread can answer all these questions.
2naSalit
(86,647 posts)and from what I hear regarding current policy proposals...
In some states and in some federal cases when someone is arrested/convicted of a crime... say for illegal drugs let's say, and like in California, all assets can be seized... your house your car and other valuable possessions, period. If a felon is arrested for committing a crime with a firearm, that and all others may be confiscated, period.
Regarding current gun safety proposal of late; there will be no confiscation of any assault weapons already in the public domain from law abiding citizen (those not on parole or having been arrested for violent crimes etc.) though they may be required to register them so there can be a database constructed so keep track of them and their possessors so that should something untoward happen with such weapons involved, the owners can be found and held accountable for their use... especially if used in a criminal act. There will be no door to door collections attempts. you're more likely to be taken out by a drone than having the FBI, ATF or whomever come and personally take them from you.
These are not unreasonable proposals by any means. If you have to endure a background check to board an aircraft, why would such a requirement be so outrageous for gun purchases and transfers? Really? Car have to be registered upon dealership or private sale...
I would like to see the NRA be castrated and Grover Norquist, LaPierre and wango tangoman be banished from the country and the airwaves of the world for their treason and attempts at subjugation of our government. I think that would be a great start to our "cleaning up our act" as a nation.
ReRe
(10,597 posts)Yes I do know that all property can be confiscated, in my state, if Mary J is grown on your land, even if you didn't plant it there.
And yes, all guns must be registered. That way the gun can be traced back to the owner, if a crime has been committed with that gun. But I understand that there isn't a registry that can be checked for this purpose? The ATF is almost not there, I gather, for all intents and purposes, and left more or less emasculated/emaciated by the inner workings of the NRA in our Congress. I had no idea that we hadn't had a permanent ATF Dept head since 2006 until a couple weeks ago. (This is because of McConnell's filibustering of all nominations, including man many judgeships?)
Your last paragraph? Right Onnnnnnnnn! And that is the best word that you could have used concerning the NRA: CASTRATE It! CUT. IT. OFF. Period.
2naSalit
(86,647 posts)I was almost ready for some comment on wango tangoman, who is brought the c-word to mind! And regarding that, I think the operation should be conducted without anesthesa and with a dull, unsterilized blade... just because... you know, all those dead children and all.
Yes, Cheney wasn't interested in limiting his gun mfg buddies/business associates so there was never even a real appointee to ATF after the one before was finished at that role that I can recall. And I think that he personally assigned turtlehead to be primary obstructionist when he left DC.
ReRe
(10,597 posts)...Evidently a Kenneth Melson was the previous ATF chief, appointed by Holder in 2009. That's according to Wikipedia. Now I don't know if he too had not been confirmed by the Senate when he resigned over the "Fast and Furious" case brought up by Issa. I can't remember when the Repubs changed the position (ATF Chief) into one that had to be confirmed by the Senate. Dambit! Another question!
2naSalit
(86,647 posts)I'll have to look that up tomorrow. I've been staying up too late and getting up too late so I have to get offline and go to bed.
Good conversation though, much appreciated.
nytol.
ReRe
(10,597 posts)I need to get off here too. DU is addicting! 
Need to get up in the AM and watch the festivities in DC all day! 
Cleita
(75,480 posts)interpreting what was meant.
shenmue
(38,506 posts)
Yay, someone who likes to read!
yodermon
(6,143 posts)If not, this actually a *bad* idea, because "the people" can then be allowed to keep & bear whatever the Army is allowed to keep & bear.
Alternatively, though, all citizens who choose to bear arms are de Facto members of the Militia, so all gun owners could be conscripted into the army and sent to Afghanistan without touching a hair on the precious head of the 2nd Am. Goes along nicely with the Article I sec. 8 clause you cited too!!
jmowreader
(50,560 posts)The same part of the Constitution specifies Congress' power to raise and support Armies, and to provide and equip a Navy, separate from the Militia.
Jumping John
(930 posts)(Federal) Government is the one doing the "arming", it is logical to conclude that the keeping is done on a military base.
I am sure that the militias (national Guard units) of today do not allow people who populate the guard to carry the arms (which are fully automatic weapons and machine guns) home to keep.
So if the 2nd amendment would be fully explained and revealed, then it does not really allow the citizens a right to privately purchase and own firearms.
jmg257
(11,996 posts)The 1st Militias under the new constitution did provide their own arms and did keep them and did bear them during service.
There are numerous compliants by the framers against the government doing just what you say...controlling the arms of the people...too easy for the people to be disarmed.
Of course the people decided a long time ago we just don't care so much about all that constitutional State Militia stuff, and prefer a select militia system, and federal controlled at that, cause its just one less thing we have to be bothered with.
Jumping John
(930 posts)ammunition by the citizen and not the Federal government.
Here is a pdf site that talks more about this.
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEgQFjAE&url=http%3A%2F%2Fwww.saf.org%2Fjournal%2F16%2Fcolonialfirearmregulation.pdf&ei=xL_8UNWrNbO_2QWmt4GQAw&usg=AFQjCNEjSH-M2fj9OMmJdX3M629jbwy5yg&bvm=bv.41248874,d.b2I
So if the state allows a person to own a firearm, would that mean that the federal government would also? Seems a little muddy.
Especially as we see the feds are presently busting state approved Medical MJ dispensaries.
jmg257
(11,996 posts)The States agreed to give congress the power to provide for organizing arming and disciplining the Militias. The Militias served very specific very vital role in defense of the people when in federal service. They also were the only martial entity a state could keep for their own defense. The States could not control the arms and ammo the Congress said the people MUST provide themselves with. The feds could also not infringe on the right of the people to serve (or the states to maintain a Militia). To do so could destroy the constitution itself by depriving the government the only entities mandted by law with the tasks of securing our liberties.
Well regulated Militias were necessary.
Jumping John
(930 posts)sympathizers were excluded. Weren't they called Tories?
NutmegYankee
(16,199 posts)And Tories were often chased out of their communities.
Jumping John
(930 posts)3.3 Was duty in the militia voluntary in the American colonies?
A. No, white able-bodied free males were required by law to belong to the miliita by the statute law of the colony. Whether or not they actually served in militia units is another question. Sometime the militia laws were strictly enforced, sometime laxly. The requirement for service could be met by joining either the colony's militia in your local area or joining (if they would have you) a volunteer militia unit. These companies were allowed under colonial legislation and were, of course, subordinate to the authority of the colony. Some colonies provided religious exemptions to militia duty.
http://www.adl.org/mwd/faq3.asp
NutmegYankee
(16,199 posts)jmg257
(11,996 posts)Which were already shown to need better regulation then existed under the Articles.
I'll have to check out the paper!
on edit: apparently from that paper, there was very little colonial/state control of private arms - for most it seems they were mandatory for having on hand militia duty. No wonders the Congress continued that practice, as well as the typical notions of who would serve, how they would muster etc. They weren't given powers to recreate the Militias, only to provide for them to be well regulated.
NutmegYankee
(16,199 posts)Today it requires a lot more training and sophistication than the average person would have off the street. Tactics are more complex because the weapons are far more deadly.
jmg257
(11,996 posts)Intent behind the militia powers given to congress and the 2nd amendment. Provide for a well regulated effective force and still reduce the need for a large professional army.
Think it Took the Spanish War to convince the people the State Militias just wouldn't cut it.
Firebrand Gary
(5,044 posts)
Shankapotomus
(4,840 posts)can it be extrapolated that the founders are implying "the right of the people to keep and bear Arms shall not be infringed" was meant to extend only to citizens entering formal militia and military service since you can't have a properly armed military with limited access to weapons or their right to keep and bear Arms infringed. And if you take the whole sentence, "...the right of the people to keep and bear Arms..." is directly attached to the service of "the security of a free State", through a "regulated Militia."
The founders are only mentioning "the right to keep and bear Arms" only in regards to the security of the State, which is the militia's/military's job. They say nothing about keeping and bearing Arms for the use and service of one's personal purposes.
NutmegYankee
(16,199 posts)It was a general Common Law principle at the time that citizens could own firearms for personal use. The reason to protect that right was that any citizen was subject to getting called up (getting Drafted in modern speak) to suppress an insurrection or invasion. If you had no knowledge of weapons, you were not going to be useful at all. This comes out of deep dislike of standing armies, not unreasonable given that the British used theirs to occupy the colonies.
You see other examples of this in state documents such as:
Virginia declaration of Rights - XIII 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 be governed by, the civil power.
Pennsylvania Constitution -Right to Bear Arms
Section 21.The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
Connecticut Constitution - SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.
limpyhobbler
(8,244 posts)good idea
bluerum
(6,109 posts)"governing as such part of them that may be employed by the state in the service of the united states"
This can be taken to mean what is now called the National Guard. I am sure you don't mean to send them into field without adequate means to defend themselves.
I think that you also need to look at the relative dates of ratification of 2A and the article that you quote.
Craig Whitney has written in great detail about the second amendment in his book "Living With Guns, A Liberals Case for the Second Amendment". He provides a lot of historical detail on how the 2A has come to mean what it does today.
Benton D Struckcheon
(2,347 posts)Stare at that for a while. It's actually very very interesting and there was a lot of commentary on it in the Federalist Papers. It's intimately related to the militias, which means it's intimately related to the 2nd Amendment.
Response to Benton D Struckcheon (Reply #25)
PoliticAverse This message was self-deleted by its author.
jmg257
(11,996 posts)the need for Armies.
That is why Militias were necessary, and Armies weren't.
Am I missing something, or is that it?
Benton D Struckcheon
(2,347 posts)As Hamilton made clear, the two years sunset clause was so that if the Congress authorized an Army it would have to reauthorize it at least once in any subsequent term. It was an attempt to put a speed bump in to an authorization of a permanent standing army. Standing armies were highly distrusted by the anti-Federalists who were against the Constitution. Militias were far more favored.
I just read post 79 and the post linked to there, brilliant stuff. I'd recommend reading that. It's the first time I've ever read a good practical suggestion as to how to rein in the gun nuts.
jmg257
(11,996 posts)His take on the effectiveness of bolt actions in leiu of semiautos, and the president's 'power' to remove semis from the market because they inhibit people from getting a bolt action(?) for militia duty, are highly suspect. Also, where in the constitution does it say that when congress is derelict in their duties, that the power to do so transfers to the president?
History proves the US did not give up anything, and in fact gained a superiority in firepower by going to the M1 Garand in 1936. A reliable semi for normal use was a desire of the military for decades. Faster reloads, higher capacity, highly reliable, same range and accuracy, better sights, easier maintainence, etc. etc.
Ask the US Marines on Guadalcanal what they preferred...their old '03s from WWI, or the new Garands the army brought with them. Very few would have stayed with the 1903. And none of them did as the semi proved its battle effectiveness.
The M14 adopted in the late 50s would also be argued as a yet another improvement in arms, as even higher capacity and simpler faster reloads was added. Garand himself started these mods during the war.
Anyway, gun porn history aside..there is no real logical way having a semi available for purchase could be justifed as interfering with people buying a 1903 in 7.62. The costs would be minimal, and any person could simply have both.
elleng
(130,974 posts)'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.'
To answer your question, Yes, it could, imo.
PoliticAverse
(26,366 posts)NutmegYankee
(16,199 posts)The militia would need additional supplies if called into an action, such as the whiskey rebellion. http://en.wikipedia.org/wiki/Whiskey_Rebellion#Militia_expedition
The Blue Flower
(5,442 posts)If the first clause you posted is the beginning of a statement and the second is the ending, then the way I read the two together is that it is the right of the government to regulate that shall not be infringed.
jmg257
(11,996 posts)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.
Spitfire of ATJ
(32,723 posts)They've been very naughty....
H2O Man
(73,559 posts)demonstrates a profound lack of understanding of the Constitution, Congress does have the ability to make some laws that limit the types of weapons that individuals may own.
BainsBane
(53,035 posts)The federal government can regulate weapons. It just can't restrict entirely, according to Heller, an individual's right to own guns entirely.
Heimer
(63 posts)Just in to say this has been one of the more thoughtful discussions I've read as a new member to this forum.
intheflow
(28,477 posts)one of the most civil discussions on the topic. Hope our usual rancor doesn't drive you off. Welcome to DU, Heimer.
SunSeeker
(51,572 posts)The U.S. bowed to reality and got a standing army fairly early on and no one felt the need to delete this anachronistic and no longer applicable Amendment. For about two centuries, the 2nd Amendment was read this (correct) way, as simply referring to militias that were no longer used. Then the right wing nutters and gun manufacturers got a hold of it and started propagandizing. Then the Supreme Court repeated their swill, although not until relatively recently. It is no coincidence that the same Supreme Court majority who declared corporations people declared guns a fundamental right.
Ruby the Liberal
(26,219 posts)Well Regulated - written in the days of muskets and no anonymous internet mass ammo purchases.
Ghost in the Machine
(14,912 posts)is so hard for some of you here to understand?? Does "We, the people..." mean only militias??
Prior to the Revolutionary War, the US did NOT have a standing army. During, and after the war, we now had a standing army, or militia. As a new Nation that had just fought a battle to gain Independence from an oppressive tyrant, and in the process gained a standing army, our Forefathers gave us... THE PEOPLE... the right to keep and bear arms, just in case this standing army, or anyone else, decided they held the power to oppress us themselves. They gave us the right to defend ourselves, and I'm sure the fact that MANY citizens hunted to feed themselves also contributed to giving *THE PEOPLE* the right to keep and bear arms.
Pure and simple: The 2nd Amendment gave us, THE PEOPLE, the right to defend ourselves against tyranny, defend ourselves and our families against assaults/threats by others and the right to hunt for food to feed ourselves and families.
Ghost
jmg257
(11,996 posts)it secures an existing right & privilege the people already had.
Second - the militia was NOT the standing army. One was a state entity, the other a federal entity. States could NOT maintain "Troops", but they could have Militias (well regulated ones). The Congress could raise an Army, and maintain a Navy, but they were to call forth the State Militias for federal service in defending our liberties.
Third - the 2nd secures, to the people, 'the right to keep and bear arms', a right which is VERY HIGHLY connected to the duty and right to serve in the Militias...almost as if the 2 are interchangable.
In Congress 1789
Mr Scott: "objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army."
'Keeping arms' and 'to bear arms' here obviously refers to Militia service.
Mr Gerry: "Now, I am apprehensive, sir, that this {religious exemtion} clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."
'Bearing arms' here obviously refers to militia service.
Our right and duty to serve in the Militia is what allows us to 'fight tyranny'...because it reduces the need for that martial power of tyrants - a large standing army. This is what the 2nd secured for the people, their role in defending their freedoms.
No doubt the people have 'the right to keep and bear arms'. And IF there is any confusion about what the restriction clause means, then one refers to the preamble cause...'well regulated militias being necessary'. Obviously that right is associated with Militia service. As debates in congress over the amendments clearly shows.
happyslug
(14,779 posts)When Von Steuben entered in Service of George Washington he wrote the "Blue Book" which was how the US Army units were to be organized to fight. As a general rule, in armies of the time period, books like the "Blue Book" were classified Top Secret if not higher. The reason for this is given the nature of the weapons, while the main weapons that caused most injuries were cannon and musket fire, the Bayonet was still viewed as the weapon that won battles, The Bayonet would retain that position till the invention of the Rifle Musket (and the Minie ball) in 1848 (and that was due to the adoption of the Percussion firing system, invented in 1806, adopted by the British Military in 1830, US Army in 1842).
The key to a bayonet charge was to hit the other side in flank of a unit. Units would fall back on their centers, thus if you hit two units in each other flanks both would retreat toward their own centers and open a gap between the unit, that the attacking units could exploit. Thus in defense, units lined up in such a way as to appear to be one continuous line. Thus any charge would not know where two units meet and thus the attacking unit did not know if it was attacking one unit at its center, which would force the unit backward but united, or between two units, so that the flanks would retreat toward each unit's center.
Thus army units were given four flags, two at the center and one on each flank. The flanks of each unit would be covered by two flags, one from each unit. Thus when the enemy looked at your line, all they saw was a serious of two flags with the men behind the flags (one flag from each unit on that unit's flank, and then two in the center that the men were taught to rally around.
What flag went where was important, thus classified. The men of the unit were taught the importance of each flag, but only as far as needed (i.e. the unit's flag was the one the men were taught to rally around, the other three flags were known but ignored by most of the men as unimportant).
Given the above, in all armies the equivalent of the "Blue Book" was classified as to be known only to regimental commanders and to be destroyed if the unit was over run, This was the classification Von Steuben wanted his "Blue Book" to be given by George Washington. George Washington decided instead to publish it, so that militia commanders could buy copies and form they militia units along the same line.
This "Tradition" was known to the authors of the Constitution AND the First Congress which wrote the Bill of Rights. It was also known that Militia could have weapons other then what the US Army had, but it was preferred that the Militia have the same weapon due to the ease that makes in re-suppling the army in the field. In fact the US Army during the Revolution switched from .75 caliber Brown Bess muskets, Colonial American had used when the British was the main source of Weapons used by American forces, to .69 caliber muskets when France became the main source of US weapons. Both were still in use when Congress passed the 1792 and the 1795 Militia act . In Both acts Congress ruled every "free male" was in the Militia and had to have a .69 caliber musket (And exception was made for Rifleman, but Rifle units had to be supported by at least two musket equipped regular infantry units, another rule issued by George Washington based on experience during the Revolution).
Now, in the recent opinions of the Supreme Court the above was ignored by both the majority and the dissent. One reason was none of the above were the result of any LEGAL decisions by the Courts. In my opinion both Sides were uncomfortable with the idea that the understanding of how the Militia was to be formed and organized and gone through a radical rewrite during the Revolution and that George Washington's handling of the "Blue Book" was part of that change.
On top of the above change, the Court also did not want to accept that how the Militia was organized north and south of the Mason Dixon line were radically different for over 15o years by the time of the Revolution. In the North, the Militia was as good as any regular Army unit and that had been the tradition since the 1600s, thus military function was its most important function (Strengthen by the fact the French were in Canada till 1763).
In the South the Militia's main job was NOT to perform military operations but its related function as the "Sheriff;s Patrol". The main function of the Sheriff's Patrol was to prevent slave revolts by spending a night a month patrolling an assigned area (often a road intersection), with free range to due as they saw fit to any non-white (This included killing any non-white). Thus when you read about the "Useless Militia" during the Revolution it is always in reference to the Southern Militia for when you compare it to the Northern Militia it was "useless".
In many ways the Constitutional Convention wanted to expand Northern Militia standards to the South, but the South resisted the move, so instead it was agreed to leave the First Congress be given the option on how the militia was to be formed. The First Congress did the same, wrote how the militia was to be formed, but then told the states to do so. This was the Militia Act of 1792. The Militia Act of 1792 was the law till 1903 when the present Federal Act came into play. The present act divided the Militia into two groups, the members of the National Guard and the "Reserve Militia". All males between the ages of 18 and 45 are in one or the other. The reason for this was to provide legal cover for the National Guard (Some question if the National Guard was constitutional before 1903). The rest of the Militia was to be organized as and when needed as per Hamilton in the Federalist papers.
On the other hand, during the ratification of the US Constitution, the opposition to the US Constitution made a big deal about the centralization of the Militia with the Federal Government. This was a BIG deal in Pennsylvania, the last colony to organize its militia, Pennsylvania only did it in 1758. This was AFTER four year of fighting on the frontier after Braddock's defeat in 1754. During that four year period, the Pennsylvanian Frontier was undefended. The Quakers that controlled the PA General Assembly refused to form up the Militia. To address this problem Ben Franklin told the people on the frontier to form their own Militia units. Thus when opponents to the US Constitution brought up the Militia clause, it made a big effect in Pennsylvania. In many ways the Second amendment was adopted to address the fear of what would happen if the Federal Government did NOT form up the Militia. i.e. if the Federal Government did what it in 1903, those parts of the Militia NOT in the National Guard, can be formed as the State sees fit, or if the state does NOT form up the Militia , the people themselves can.
On the other hand, the authors of the Second Amendment also did NOT want the Second Amendment to interfere with how the FEDERAL GOVERNMENT would form up the Militia. Thus the wording of the Second, to maintain maximum right of the Federal Government to form up the Militia but permit the states and the people to form up the Militia but only if the Federal Government does not.
The above would indicate that the Reserve Militia could be restricted to a certain type of weapon, but it would have to be compatible with what is used by the Regular US Army. i.e the M16. On the other hand an argument can be made for another position, see the following:
http://www.democraticunderground.com/?com=view_post&forum=1014&pid=370038
