frigidweirdo
Diamond Member
- Mar 7, 2014
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Im sure you’ll continue to be surprised in the future. Just when you though you’ve seen it all...There was both a right and a duty.
The duty was the state needed you.
However the Militia was seen as the ultimate check and balance against a tyrannical govt. As such a duty to fight a tyrannical govt isn't really there, because the Militia can be called up to the Federal or State govt's control.
What they wanted was a check which the people could use. Therefore it was a right, to fight against tyranny of their own government.
The right to be in an ad-hoc, citizen formed militia is not claimable / actionable for as long as the Constitution is in force -- there can be no militia organized except that as set-out in Art I, §8, cl's 15 & 16.
Yes, the people retain the right to throw off a tyrannical government, but the first step in that is taking back the powers granted to government (including the power to organize and call-up the militia) and invalidating any protections afforded to government by the Constitution (supremacy, preemption, prosecuting sedition and treason). So, until the people have rescinded their consent to be governed there is no right to be in a militia because the people have conferred that power/right to the federal government.
If the people are exercising this right to form a militia and are fighting a tyrannical government, that means the organized militia is no more, the armed forces are no more, the government, as it existed is no more . . . Simply because that government is no longer "the government established by the Constitution", it is something else, something foreign and dangerous -- which is why we are fighting it.
Now, there might have been a duty to be in the militia, but then there would have also been a duty to own arms. Was anyone COMPELLED to keep arms? No. .
Yes. Once enrolled and notified a man was required to "provide himself" with an appropriate firearm. The Militia Act of 1792 mandates:
- "That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, . . . "
Therefore if individuals have the right to KEEP ARMS, they also have the right to be in the militia
The right to keep and bear arms has no relationship with militia duty or service. The pre-existing right is recognized and secured because an armed citizenry affords the state a body of properly-situated citizens, (with arms in their hands), able to be called up at a moments notice to aid the civil government in time of need -- while the government is operating properly. Again there is no right for citizens to form their own militia and train and drill.
You don't understand Presser v. Illinois.
I understand it and I understand how the Constitution works. There can not be a power granted like federal militia powers (a power that enjoys near field preemption) and then say that a concurrent "right" exists to do the same thing . . . That's just not how it works and Presser explains it.
- "The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject."
There is ONE MILITIA (or 50, depending on how you look at it), it's described in Article 1, Section 8.
This is because they didn't want to destroy freedom by having any old militia walking around. It was a militia which had certain controls on it too.
"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;"
This militia has state appointed officers, and training as authorized by Congress.
This is the Militia you have a right to be in.
SMH . . . Now you are changing your argument from saying the people have a right to make a militia to fight a tyrannical government to now saying the people have a right to be in the organized §8 cl. 15 & 16 militia . . .
You seem to get -here- that the ONLY militias allowed under law are those organized by Congress (which sets the rules of discipline and conduct and the regimen for training) and commanded by officers chosen by the state governments, . . . and now you say there is a right to be in that militia?
Not sure how this ridiculous premise would work, especially with the complete lack of attention and concern the states and federal government exhibited towards the organized militia. Surely some citizen or group of citizens would have brought action against the federal and state governments for disregarding the militia and depriving the citizens this "right". Can you point to one instance of this right being claimed and argued to compel the federal and state governments to fulfill their constitutional militia obligations?
The actual situation of being enrolled in the militia alters the status of the citizen; when one is called up some circumstances change. Being in actual service works to roll back rights; a private citizen's 5th Amendment rights are not extended to a militia member. If one commits a crime when an enrolled militia member in time of danger, the UCMJ is the applicable justice system. Are you claiming a right to be court martialed?
The whole text is about that, read it.
I prefer to follow the foundational constitutional principle that the right to keep and bear arms is not granted, created, given or otherwise established by the 2nd Amendment thus it does not in any manner depend on the Constitution for its existence. Trying to "interpret" the 2nd Amendment's words to see what it "allows" citizens to do (or own), is illegitimate.
SCOTUS has been affirming this principle for going on over 140 years:
- "The right . . . of "bearing arms for a lawful purpose" . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, . . ." (Cruikshank, 1876)
" . . . the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, . . ." (Presser, 1886)
"the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .” (Heller, 2008)
This principle also means that the right to arms can not be argued to have any militia conditioning or qualification placed on it. The right can't in any manner depend on something (like the militia structure that cl. 15 & 16 sets-out) that is itself, entirely, completely dependent on the Constitution for its existence.
Also, they made the "unorganized militia" in the Dick Act of 1903, because they knew if they made the National Guard, that individuals could demand to be in it, reducing the effectiveness of the militia. So they "unorganized militia" was a way of saying "you have your right to be in the militia, see you're already in it, so stop complaining" while keeping them away from the actual effective militia.
In 24 years of debating gun rights on-line, I thought I saw it all.
The Dick Act put the final nail in the coffin of the §8, cl. 15 & 16 militia. It also answered unequivocally any question . . . that there are no "militia rights" for anyone (states or citizens) to claim.
Yes, he might actually learn something if he keeps his mind open.
Those who have an agenda however, will just mock and insult.