Well regulated militia

[Stryder50]

Well regulated militia can be created on the basis of the police. The US police are subordinate to the state and independent of the federals. Armed male can be trained by the police, and participate in police operations as an auxiliary force. This is the shortest way to create a militia.
The constitution says that the creation of a militia is necessary.
View attachment 594923

First is an obvious failure to grasp some basics of history about 245 years ago, or language terms and usage of that past period.

1) The original 13 colonies of England on the Eastern shores of North America (future USA) had very few soldiers of England stationed in the colonies, nor any formal regiments of "militia" raised by the colony governments. Along with personal self-defense, local community defense was based upon a local and community militia, a body of armed men willing to defend their community from attack. In most cases this was from local indigenous, native Americans ("Indians").

2) Standard weapon/firearm of the time was a muzzle loading musket/rifle. Usual deployment of a body of armed men was to form two or more ranks facing your enemy, where the first/closest rank would fire their weapons, then move through the files to the rear of the formation to reload. The second rank would then "Present Arms" and "Fire" as needed or per command. Then they would move through the files to the rear of the formation to reload, while the next(third) rank would advance a step or two, Ready-Aim-Fire, and so on.

This was common battle drill or in the words of the time, how a "well regulated" militia was trained and would perform if deployed in a line of battle. Further regulation might find them organized into "squads" that would be the ranks when in line of battle formation.

In more broken terrain, rigid block formations might not be possible so you'd find a more "free form" sort of engagement, such as moving through the brush and firing(ambush) from woods, etc.

3) in the case of the War for Independence, local militias were called upon to form larger regiments and compose/augment the Revolutionary Army. Prior to 1775, as England sent more troops to garrison the colonies and enforce Crown Laws, the colonists and their militias began to organize and prepare for possible conflict. It was a cache'/store of cannons and munitions that the British from Boston were marching to seize and to which local militia, "MinuteMen", responded, resulting in battles of Lexington and Concord. Part of the start of the WoI.

 

[LuckyDuck]

Well regulated militia can be created on the basis of the police. The US police are subordinate to the state and independent of the federals. Armed male can be trained by the police, and participate in police operations as an auxiliary force. This is the shortest way to create a militia.
The constitution says that the creation of a militia is necessary.
View attachment 594923

Any senior non-coms that have served in the field, have the ability to train a well-regulated militia, with the intent to protect their "free" state, from an enemy, whether foreign or domestic.

 

[Abatis]

Why do you call the State Defense Forces a pseudo-militia?

Because SDF's are not militia, in law, SDF's are considered "other troops".

We need to start with what "militia" is in law . . . Remember, the Militia Act of 1903 (commonly referred to as The Dick Act) rescinded the Militia Act of 1792, essentially decapitating the state militias, relieving the citizens of all militia obligations. This put the states into limbo as far as having a body of men to call on, able to respond to the state's needs of civil order and emergency response. This orphaning of state interests were solidified with the prohibition of overseas deployment of the State Guards being lifted in 1908 with years of squabbles to follow . . .

In 1916 Congress acted again with the National Defense Act; that law was the final legal nail in the coffin of the idea and function of state militias. That 1916 law federalized the former State Guard units and created the National Guard. That law also established in law what the composition of the militia is.

In 1916, the law as originally enacted declared:

Link to screengrab above:

https://uscode.house.gov/images/stat/39/197.png

That's it, no other entities can be legally called militia; only the members of the National Guard and Naval Militia and the unorganized militia. The law has been modified over the years and now states (this section was previously designated Title 10 U.S.C. §311):

Title 10 U.S.C. §246. Militia: composition and classes​

(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.​

​

(b) The classes of the militia are—​

​

(1) the organized militia, which consists of the National Guard and the Naval Militia; and​

​

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.​

​

​

How are they not a "real" (cl's 15 & 16) citizen militia?

As stated above, that militia no longer exists; its hollowed-out corpse is stood-up in the dusty corner of Title 10 and the Title 32 National Guard has stolen its name-tag and assumed its identity, without a shred of its original character remaining.

State Defensive Forces are a creation of Congress cribbed into Title 32, the law that established the National Guard, a stepchild of the US Army . . .

Specifically, SDF's are created in 32 USC §109: Maintenance of other troops by language from a law created on August 11, 1955, to be inserted in a new subsection, (c) added to §109.

Link to screengrab above:

https://uscode.house.gov/statviewer.htm?volume=69&page=686

Interestingly, §109's single original sentence's original purpose was to enforce the Constitution's prohibition on states maintaining other troops . . . Congress put an exception, drawn from the law they used to create the National Guard, into that prohibition to allow troops, not to recognize or grant the states' the ability to organize and maintain militia.

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[LuckyDuck]

Governor DeSantis of Florida has announced that he will be recreating the Florida State Militia, one that isn't tied to the federal government and thus focus solely on state emergency needs, whereas the National Guards in all states, come under the purview of the federal government when the federal government wants them to serve as a federal troop multiplier.

 

[there4eyeM]

However it is basic human nature to categorize others based upon their words and actions.
Like it or not, want it or not;
... all are categorized, placed into a niche/slot.

In USA terms, "The Left" is those whom are on the psuedo-liberal, pro-socialism/communism ideological divide, mostly being Democrats or more extreme such as BLM, AntiFa, etc.

Unfortunately, ideology defines scale and scope of "wisdom" and such varies based upon position on the political divide.

If the word "wisdom" is to have any meaning, it is rather what defines ideology, and not the inverse.

 

[Open Bolt]

Because SDF's are not militia, in law, SDF's are considered "other troops".

I don't think it really matters whether they are officially given the title of militia in a statute or not.

So long as they can fulfil the role of a well regulated militia, that should be enough to satisfy the Second Amendment.

You keep calling this a "right" but nothing can happen with regard to organized militia without law authorizing action. There are no militia "rights" for anyone under the Constitution.

"Right" may be the wrong word. What I am referring to is what you were talking about when you said: "This put the states into limbo as far as having a body of men to call on, able to respond to the state's needs of civil order and emergency response. This orphaning of state interests"

If you'd prefer calling it states' interests instead of states rights, fine.

Your phrasing there "seems" to recognize this, you keep saying "right" but then you refer to a provision in law creating and giving what you say is a right . . . that makes no sense.

If federal law did not provide for those states' interests that you referred to, the states could sue and have the Dick Act struck down as unconstitutional.

The existence of State Defense Forces provides for those states' interests, so the states have no basis for complaint.

My argument, directed to those claiming the 2ndA protects the states from federal intrusion of their "militia rights"

The mistake that the gun control movement makes when they argue that the Second Amendment protects the states is, they wrongly claim that that is the only thing that the Second Amendment does.

The Second Amendment is broad, with many facets to it. It simultaneously protects the rights of states, the rights of individual militiamen (Miller ruling), and the rights of individual citizens (Heller ruling), all at the same time.

was that the Dick Act was grounds for states to sue the feds. Congress removing their claimed powers/rights to organize, maintain and direct their militias, would have been a violation of the 2ndA IF the 2ndA protected state militia interests!

Except the existence of State Defense Forces was good enough to satisfy the states' interests. Therefore the states had no grounds for complaint.

Of course the 2ndA never protected state interests which is why no state sued in 1903-1916 as the Article I, §8, cl. 15 & 16 militia was completely extinguished.

And yet it is correct. Militia powers are only conferred in Art I, §8, cl's 15 & 16 and Art II, §2; the 2ndA has never been inspected to inform or held to direct any militia powers.

No, it doesn't . . . The only thing you are doing repeating these fantasies is proving the old adage, anything is possible when you don't know what you are talking about.

The Founding Fathers left behind a lot of documentation showing that they intended the Second Amendment to protect the effectiveness of the militia so that the states would be able to rely on the militia.

And yet when it has happened we see no actions being brought.

The State Defense Forces are enough to satisfy the interests of the states, so there is no cause for action.

The cause for action would come if there were no State Defense Forces.

So you agree that SDF's are special carve-outs in federal law that Congress created to give states a runner-up prize because states could never organize and maintain cl. 15 & 16 militias (and because of Congress and the Dick Act, no longer exist) and that states were forbidden by the Constitution, (Art I, §8, cl. 10), to keep troops without the consent of Congress . . . OR "allowed" by Congress, as you say, by making a law, under the authority of cl. 12, Congress' power "To raise and support Armies" and writing said law creating SDF's under US Code, Title 32 which created the National Guard of the US Army.
BUT IT"S A RIIIGGHT!!!

I do not see the State Defense Forces as a runner up prize.

They fulfil my criteria for a proper militia. The only problem I have with them is that currently they are not well regulated.

And yet upheld, even addressing association, multiple times by SCOTUS for going on 136 years, now with zero chance of being revisited . . .

I think if anyone in the government tries to prosecute the militia movement for being an illegal body, the matter of freedom of association and freedom of speech will be revisited very quickly.

 

[Abatis]

I don't think it really matters whether they are officially given the title of militia in a statute or not.

What doesn't really matter is your opinion whether they are officially given the title of militia in a statute or not. Statute says only the members of the National Guard and the Naval Militia and members of the unorganized militia meet the legal definition of militia.

So long as they can fulfil the role of a well regulated militia, that should be enough to satisfy the Second Amendment.

Can someone just decide to grab a USPS jeep and deliver mail?

The only way to "satisfy" the 2nd Amendment is for Congress to never make or enforce any law violating the right of the people to keep and bear arms. There is no positive law aspect of the 2nd Amendment that needs to be satisfied or fulfilled by any person's (government or citizen) directed action.

"Right" may be the wrong word. What I am referring to is what you were talking about when you said: "This put the states into limbo as far as having a body of men to call on, able to respond to the state's needs of civil order and emergency response. This orphaning of state interests"

If you'd prefer calling it states' interests instead of states rights, fine.

But whatever 'that' is, it does not flow from the 2nd Amendment. Whatever residual powers states possessed over their militia was a circumstance of cl. 16 and the Militia Act, not the 2ndA.

As disputes over control and direction of militia (between the feds and the states) were decided, the feds claims were always held supreme and preemptive over state claims . . . See; Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917), and of course, Perpich v. Department of Defense, 496 U.S. 334 (1990).

While this law review article was directed to rebut the anti-gun "state's right" interpretation, it also rebuts yours since, on it's foundation, your theory is identical (except for end game, to negate the right to keep and bear arms part).

Please read it.

Exposing the Second Amendment: Federal Preemption of State Militia Legislation

guncite.com

If federal law did not provide for those states' interests that you referred to, the states could sue and have the Dick Act struck down as unconstitutional.

An attractive theory but totally destroyed by SCOTUS, (field preemption), read the link above . . .

The existence of State Defense Forces provides for those states' interests, so the states have no basis for complaint.

That was the reasoning for creating them. I don't dispute that they do serve a purpose, I just disagree with any statement that they are constitutionally grounded militia.

The mistake that the gun control movement makes when they argue that the Second Amendment protects the states is, they wrongly claim that that is the only thing that the Second Amendment does.

Well, the entire theory was disingenuous (along with the "militia right" interpretation) and was argued in the lower federal courts for the singular purpose to give them an excuse to reject, without analysis or discussion, the claims of an individual right to keep and bear arms by citizens of the USA.

The theory was inserted in federal law* and employed to dismiss and ignore SCOTUS in Miller, to avoid enforcing the 2nd Amendment and invalidating gun laws. It worked in the theoretical and practical for 66 years but then SCOTUS failed to continue the mission after 2008, so for most practical purposes the cancer still continues . . .

* For the "state's right", U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), for the "state's right", Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)

The Second Amendment is broad, with many facets to it. It simultaneously protects the rights of states, the rights of individual militiamen (Miller ruling), and the rights of individual citizens (Heller ruling), all at the same time.

No, the 2ndA has only one "facet" and I'm happy to see you think SCOTUS has some authority!

SCOTUS in Cruikshank and Presser said, ("it" refers to "the right of the people to keep and bear arms"):

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . "​

Where does Miller mention any "rights of militiamen"? Miller said nothing about the men's militia status and we sure know neither ever claimed any militia status in their defense.

Except the existence of State Defense Forces was good enough to satisfy the states' interests. Therefore the states had no grounds for complaint.

My argument was facetious. It was made to ridicule and insult the anti-gunner's undeveloped argument, I wouldn't attach yourself to it in any way.

The Founding Fathers left behind a lot of documentation showing that they intended the Second Amendment to protect the effectiveness of the militia so that the states would be able to rely on the militia.

Correct, in a perfect world the federal government would have been diligent in fulfilling its cl. 16 duty to the states and keeping the militia operational; unfortunately, the feds and the states allowed the militia fall into an ill-regulated mess . . . That made killing the citizen militia not just easy, but an imperative to raise a standing army on its ruins.

The object of the 2ndA was to preserve the general militia principle. The framers did that by securing that the people, from whom the militia would be assembled if called, shall have the right to keep and bear arms.

I think if anyone in the government tries to prosecute the militia movement for being an illegal body, the matter of freedom of association and freedom of speech will be revisited very quickly.

They already have. Every state has some kind of law criminalizing private militias or armed assemblies. Earlier this year, Idaho's lawmakers introduced a law repealing their laws.

Here's a graphic showing the types of laws in the different states, link below is an extensive examination of all those laws and is the source of the graphic (1.49MB pdf):

https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2018/04/Prohibiting-Private-Armies-at-Public-Rallies.pdf

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[Open Bolt]

What doesn't really matter is your opinion whether they are officially given the title of militia in a statute or not.

I've not offered any opinion about that. I am sure you quoted the law accurately.

Statute says only the members of the National Guard and the Naval Militia and members of the unorganized militia meet the legal definition of militia.

Statutes say all sorts of untrue things. They refer to semi-autos as assault weapons. They refer to assault weapons as machine guns. They refer to small bombs as weapons of mass destruction.

Can someone just decide to grab a USPS jeep and deliver mail?

They can if the law is written to allow them to do so (much like the law is written to allow State Defense Forces to fill in for the militia).

The only way to "satisfy" the 2nd Amendment is for Congress to never make or enforce any law violating the right of the people to keep and bear arms.

That satisfies the second half of the Second Amendment.

There is no positive law aspect of the 2nd Amendment that needs to be satisfied or fulfilled by any person's (government or citizen) directed action.

I see the first half as something that needs to be satisfied as well.

But whatever 'that' is, it does not flow from the 2nd Amendment. Whatever residual powers states possessed over their militia was a circumstance of cl. 16 and the Militia Act, not the 2ndA.

It is not so much that the first half of the Second Amendment protects the states' authority over the militia, but that it ensures that the militia is there to begin with.

As disputes over control and direction of militia (between the feds and the states) were decided, the feds claims were always held supreme and preemptive over state claims . . . See; Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917), and of course, Perpich v. Department of Defense, 496 U.S. 334 (1990).

While this law review article was directed to rebut the anti-gun "state's right" interpretation, it also rebuts yours since, on it's foundation, your theory is identical (except for end game, to negate the right to keep and bear arms part).

Please read it.

Exposing the Second Amendment: Federal Preemption of State Militia Legislation

guncite.com

An attractive theory but totally destroyed by SCOTUS, (field preemption), read the link above . . .

That the feds can preempt the states does not mean that the states don't have any interests regarding the militia. State interests still exist where the feds have not preempted them.

I haven't exhaustively reviewed the cases referred to in that article, but I think it is likely that some of those rulings are wrong. It is certainly illegitimate to make the National Guard part of the US Army. I am also highly skeptical that drafting individual militiamen into the Army is legitimate.

That was the reasoning for creating them. I don't dispute that they do serve a purpose, I just disagree with any statement that they are constitutionally grounded militia.

The purpose that the State Defense Forces serve for the states is the same purpose that the militia was intended to serve for the states.

Well, the entire theory was disingenuous (along with the "militia right" interpretation) and was argued in the lower federal courts for the singular purpose to give them an excuse to reject, without analysis or discussion, the claims of an individual right to keep and bear arms by citizens of the USA.

The theory was inserted in federal law* and employed to dismiss and ignore SCOTUS in Miller, to avoid enforcing the 2nd Amendment and invalidating gun laws. It worked in the theoretical and practical for 66 years but then SCOTUS failed to continue the mission after 2008, so for most practical purposes the cancer still continues . . .

* For the "state's right", U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), for the "state's right", Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)

SCOTUS has resumed their mission of enforcing the right to keep and bear arms.

I think they will apply Strict Scrutiny to the right this summer.

I think what happened is Kennedy lost his nerve after McDonald v Chicago, and they lost their fifth vote for awhile. But they got that fifth vote back with Kavanaugh, and now a sixth vote with Barrett, so now everything should be full speed ahead with enforcing the right to keep and bear arms.

SCOTUS in Cruikshank and Presser said, ("it" refers to "the right of the people to keep and bear arms"):

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . "​

The Second Amendment does do that. I just contend that it does more than that.

Where does Miller mention any "rights of militiamen"? Miller said nothing about the men's militia status and we sure know neither ever claimed any militia status in their defense.

Where they said: "has some reasonable relationship to the preservation or efficiency of a well regulated militia"

My argument was facetious. It was made to ridicule and insult the anti-gunner's undeveloped argument, I wouldn't attach yourself to it in any way.

The anti-gunners are wrong to suggest that the existence of states' rights precludes the existence of individual rights. But I don't think they are wrong to argue for the existence of states' rights.

Correct, in a perfect world the federal government would have been diligent in fulfilling its cl. 16 duty to the states and keeping the militia operational; unfortunately, the feds and the states allowed the militia fall into an ill-regulated mess . . . That made killing the citizen militia not just easy, but an imperative to raise a standing army on its ruins.

That's why the Founding Fathers wrote the first half of the Second Amendment. They wanted to mandate that such a thing never be allowed to happen.

The object of the 2ndA was to preserve the general militia principle. The framers did that by securing that the people, from whom the militia would be assembled if called, shall have the right to keep and bear arms.

And also by mandating that there always be a well regulated militia.

They already have.

I am unaware of any modern prosecutions of private militia for being illegal bodies.

 

[Abatis]

I've not offered any opinion about that.

Of course you have. You have repeatedly made claims that the declaratory clause of the 2nd Amendment "mandates" or "requires" the government to always provide for a militia and keep it in good working order.

Mandates and requirements for government to act only flow from positive law / legislation / statutes, not the 2ndA's legally inert, "A well-regulated militia being necessary to the security of a free state; . . . " statement of principle.

Even in the provisions of the Bill of Rights that unquestionably demand / mandate / require government to act, in the 4th, 5th, 6th, 7th and 8th Amendments, none of those mandates are self-actualizing. They all need expansive exercise in law to make them real and actionable and to provide the protections recognized.

There's a very good reason why the 2ndA's declaratory clause has never been inspected to inform or held to "mandate" anything; you should pay attention to that.

Statutes say all sorts of untrue things.

And again, your personal opinion of what is "true", is of zero significance when faced with longstanding legal realities, repeatedly expressed in multiple laws and judicial decisions. States fought for militia autonomy and independence and federal preemption extinguished their claims of authority and they repeatedly lost. Like it of not, that is real and true.

They can if the law is written to allow them to do so (much like the law is written to allow State Defense Forces to fill in for the militia).

My question was referring to the link to Georgetown I provided earlier, that reviews all the different state prohibitions.

It noted that ALL states expressly prohibit private militias and/or private paramilitary activity and/or forbid private citizens to assume the duties of a peace officer or member of the military or to wear a military style uniform.

Pretty much everything you say there is a right to do, there are laws expressly declaring it illegal.

I see the first half as something that needs to be satisfied as well.

Sorry, it just isn't there . . .

cont>>>

 

[Abatis]

It is not so much that the first half of the Second Amendment protects the states' authority over the militia, but that it ensures that the militia is there to begin with.

The organized militia is a product of Art. I, §8, cl's. 15 & 16 of the Constitution ONLY. It only existed and functioned within, and for as long as Congress and federal law allowed it to exist and function.

Today, the law no longer allows the framer's conception of militia to exist and function; the Dick Act in 1903 and the National Defense Act of 1916 extinguished that militia and raised the national standing army the framers detested, on its ashes.

That the feds can preempt the states does not mean that the states don't have any interests regarding the militia. State interests still exist where the feds have not preempted them.

Well, given the feds have left no true militia powers standing for the states to fight over, your argument is moot.

The states never could and certainly can not now, organize their own militia independent of federal law. Currently, since no true militia law exists, no entity can call-up citizens and organize them as militia.

States are only allowed to form SDF's which are a special carve-out by Congress in federal law creating the National Guard, written to avoid the conflict of states keeping troops when the Constitution expressly prohibits states to keep troops.

You have invented a novel definition of "militia" to serve your personal opinions that is not represented in law. Certainly you are free to call SDF's "militia" but that personal opinion does not make it so. While SDF's do provide a few functions that were originally the organized militia's, that limited usefulness does not make them militia because SDF's can not perform all the security functions of militia.

Your argument is essentially one of, well, your town has a police force now, so there's no need for regular citizens to have the right to self defense. Not only that, because the police have relieved you of self defense, we will be calling the police the citizen's self defense force . . . Same thing right???

I haven't exhaustively reviewed the cases referred to in that article, but I think it is likely that some of those rulings are wrong.

Or you are wrong . . .

It is certainly illegitimate to make the National Guard part of the US Army.

And even worse, SDF's are part of the National Guard . . .

cont>>>>

 

[Abatis]

I am also highly skeptical that drafting individual militiamen into the Army is legitimate.

From 1788, original, constitutional militia could be "called into actual service of the nation" and that event was the only condition whereby the federal government could directly control that part of the militias of the states (the President becoming Commander in Chief and Congress' power to "govern").

After 1903, the state militias (and the members) were absorbed, consumed by the National Guard (US Army) and whatever limited, residual powers that could be claimed by the states to dirct the actions of those units and men, were completely erased.

After 1933, anyone joining their state's National Guard unit undergoes a duel enlistment condition; they take an oath to serve two entities with one (the federal) being the master. In 1952, Congress removed a governor's power to veto overseas training deployments of their Guard units, it was that event that forced the creation of SDF's in 1955 . . . So, it wasn't so much a Guard member being "drafted" into the Army, it is just a case the real boss is exerting its complete, unquestionable authority and the states surrender.

The purpose that the State Defense Forces serve for the states is the same purpose that the militia was intended to serve for the states.

Are you arguing SDF's can legitimately defend the state against federal overstepping of authority, AKA tyranny? Because that defensive function was an integral part of the militia concept as envisioned by the founders / framers of the Constitution, (see Federalist 29 & 46).

SDF's can not fulfill "the same purpose that the militia was intended to serve for the states" unless you are saying that --fighting the out of control federal government-- function survives in SDF's -- if so, please explain.

 

[Abatis]

SCOTUS has resumed their mission of enforcing the right to keep and bear arms.

We will see . . .

I think they will apply Strict Scrutiny to the right this summer.

If the Court does issue a comprehensive RKBA / 2ndA decision, I expect them to reject all scrutiny based applications.

Going by oral arguments and since it seems a sure thing Justice Kavanaugh is writing the NYSRPA majority opinion, we will hopefully see a simple "text, informed by history and tradition" guidance ordered by the Court.

I think what happened is Kennedy lost his nerve after McDonald v Chicago, and they lost their fifth vote for awhile. But they got that fifth vote back with Kavanaugh, and now a sixth vote with Barrett, so now everything should be full speed ahead with enforcing the right to keep and bear arms.

Certainly Kennedy was the squishy Justice that caused even pro-2ndA Justices to vote to deny a slew of petitions for certiorari since Heller.

Hopefully, SCOTUS will move the ball forward. I'm hoping, besides NY state's discriminatory permit scheme, the Court negates / invalidates the federal Circuit's "two-step inquiry" which would force dozens of challenges in the Circuits on decisions sustaining assault weapon bans and LCM bans etc,. Those decisions would be reheard using "text, informed by history and tradition" guidance and will be reversed in those Circuits, no further hearings by SCOTUS will be necessary.

The Second Amendment does do that. I just contend that it does more than that.

That is an opinion maintained in conflict with hundreds of years of legal philosophy and practice.

cont>>>

 

[Abatis]

Where they said: "has some reasonable relationship to the preservation or efficiency of a well regulated militia"

WHAT specifically is the Court referring to that, "has some reasonable relationship to the preservation or efficiency of a well regulated militia"?

Was the Court talking about the issuance of militia regulations or any mandate that forces someone to have as their focus "the preservation or efficiency of a well regulated militia"?

No . . . The thing that the Court is saying must have "some reasonable relationship to the preservation or efficiency of a well regulated militia" is the type of arm and whether its possession could preserve the general militia principle and its use could promote the efficiency (in fighting) of those forces.

The sawed-off shotgun in Miller was not eligible for Second Amendment protection because the Court said it heard no evidence that, "this [type of] weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Had someone showed up to argue that a shotgun with a barrel length under 18 inches was a type of arm that would be useful in battle, the posssession and use of that type of gun would have been protected.

The anti-gunners are wrong to suggest that the existence of states' rights precludes the existence of individual rights. But I don't think they are wrong to argue for the existence of states' rights.

But like any interest, if the power over that interest has been conferred to Congress, no "right" to that interest remains for any entity to claim. That works for both states and citizens in both directions . . .

The interests "We the People" have conferred to Congress, (see Art I, §8), neither the people or the states can claim as a right, OTOH, those interests for which no power has been conferred, rights have been retained and government can not claim any power over. The principle of this rule is recognized in the 9th and 10th Amendments.

cont>>>

 

[Abatis]

That's why the Founding Fathers wrote the first half of the Second Amendment. They wanted to mandate that such a thing never be allowed to happen.

The provisions of the Bill of Rights are an amalgam of a bunch of proposals sent to Congress by the states; Madison wasn't the author, he was the editor.

For the RKBA, if you look at those suggestions and the provisions of the states, you see state constitutions lumped themes with similar objects (intents) together in their bills of rights.

Most of the states had a provision that had the intent of binding government in the area of military affairs in multiple ways, these provisions were three pronged. a) The citizens retained a right to bear arms, b) standing armies in time of peace were not to be maintained and c), the military should always be subordinate to the civil authority. A typical one was my state's:

• 1790 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

Again, the framers were very accustomed to legally inert, inactive declarations of principle in constitutional provisions; nobody believed these provisions really forbade the forming and maintaining of a national army; these were state constitutional provisions with zero effect beyond the state line. They were merely stating an ideal . . .

The declaration, "A well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment . . .

The 2ndA's declaratory clause only re-affirms what once was a universally understood and accepted maxim of republics; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).

And also by mandating that there always be a well regulated militia.

That action and effect just isn't there . . .

I am unaware of any modern prosecutions of private militia for being illegal bodies.

And yet the laws prohibiting private militas exist and the 2nd Amendment is not a claimable immunity to repel prosecution if and when the authorities decide to prosecute, see Presser and Heller.

 

[Open Bolt]

Of course you have.

I see nothing significant about statutes that purport to define the militia, and I have expended no energy thinking about any such statutes or forming opinions about them.

In my view the only definition of the militia that matters is what the Constitution describes. And the Constitution describes a body whose only federal role is enforcing the law, suppressing insurrection, and repelling invasion. It also describes militiamen as having the right to keep their own weapons instead of leaving them under government control when they are not being used.

You have repeatedly made claims that the declaratory clause of the 2nd Amendment "mandates" or "requires" the government to always provide for a militia and keep it in good working order.

Yes. But that does not mean I have paid any attention to statutes that purport to define the militia.

Mandates and requirements for government to act only flow from positive law / legislation / statutes,

I disagree. I think that constitutions are allowed to mandate things directly.

Even in the provisions of the Bill of Rights that unquestionably demand / mandate / require government to act, in the 4th, 5th, 6th, 7th and 8th Amendments, none of those mandates are self-actualizing. They all need expansive exercise in law to make them real and actionable and to provide the protections recognized.

If so, then the courts are not doing their job of enforcing the Constitution.

There's a very good reason why the 2ndA's declaratory clause has never been inspected to inform or held to "mandate" anything; you should pay attention to that.

I am unaware of any good reasons for this.

And again, your personal opinion of what is "true", is of zero significance when faced with longstanding legal realities, repeatedly expressed in multiple laws and judicial decisions.

I disagree. I think people should remain aware of reality even when laws say things that aren't true.

My question was referring to the link to Georgetown I provided earlier, that reviews all the different state prohibitions.
It noted that ALL states expressly prohibit private militias and/or private paramilitary activity and/or forbid private citizens to assume the duties of a peace officer or member of the military or to wear a military style uniform.
Pretty much everything you say there is a right to do, there are laws expressly declaring it illegal.

State Defense Forces are not private militias. They are organized by state governments under authority provided by federal law. Any laws regarding private militias would not apply to them.

Well, given the feds have left no true militia powers standing for the states to fight over, your argument is moot.

State governments still have the power/authority/right (choose your preferred term) to use the militia to enforce order within their own state.

You have invented a novel definition of "militia" to serve your personal opinions that is not represented in law. Certainly you are free to call SDF's "militia" but that personal opinion does not make it so. While SDF's do provide a few functions that were originally the organized militia's, that limited usefulness does not make them militia because SDF's can not perform all the security functions of militia.

I was going to ask what security functions a SDF could not perform, but you answered that below.

I don't see why, if the states were at war with the feds, a state could not order their SDF to fight against the feds.

Your argument is essentially one of, well, your town has a police force now, so there's no need for regular citizens to have the right to self defense. Not only that, because the police have relieved you of self defense, we will be calling the police the citizen's self defense force . . . Same thing right???

It's not the same thing. Self defense is for protection when the police are not present.

Or you are wrong . . .

A ruling that allows a standing army to count as the militia is clearly contrary to the intent of the Framers. It is much more likely that it is the ruling that is wrong.

And even worse, SDF's are part of the National Guard . . .

How are State Defense Forces part of the National Guard?

From 1788, original, constitutional militia could be "called into actual service of the nation" and that event was the only condition whereby the federal government could directly control that part of the militias of the states (the President becoming Commander in Chief and Congress' power to "govern").
After 1903, the state militias (and the members) were absorbed, consumed by the National Guard (US Army) and whatever limited, residual powers that could be claimed by the states to dirct the actions of those units and men, were completely erased.
After 1933, anyone joining their state's National Guard unit undergoes a duel enlistment condition; they take an oath to serve two entities with one (the federal) being the master. In 1952, Congress removed a governor's power to veto overseas training deployments of their Guard units, it was that event that forced the creation of SDF's in 1955 . . . So, it wasn't so much a Guard member being "drafted" into the Army, it is just a case the real boss is exerting its complete, unquestionable authority and the states surrender.

Being part of the Army means that the National Guard is not the militia.

When I said that I was skeptical that drafting militiamen was legitimate, I was referring to the drafting of members of State Defense Forces.

I think the Constitution forbids drafting active militia into a standing army.

Since I count SDFs as active militia, I think the Constitution forbids drafting members of the SDFs into the US Army.

Therefore I consider the ruling that allowed this to happen, to have been wrongly decided.

Are you arguing SDF's can legitimately defend the state against federal overstepping of authority, AKA tyranny? Because that defensive function was an integral part of the militia concept as envisioned by the founders / framers of the Constitution, (see Federalist 29 & 46).
SDF's can not fulfill "the same purpose that the militia was intended to serve for the states" unless you are saying that --fighting the out of control federal government-- function survives in SDF's -- if so, please explain.

Actual civil war between the federal government and some (or all) of the states would be a pretty dire situation. But if such a situation ever developed, I see no reason why state governments could not order their State Defense Forces to go to war with the federal government.

it seems a sure thing Justice Kavanaugh is writing the NYSRPA majority opinion,

Why do you say that?

I count four justices who haven't yet written an opinion for the November sitting.

I count six conservative votes, so I'm sure it's not Sotomayor. But Thomas and Barrett also haven't written a majority opinion for November.

WHAT specifically is the Court referring to that, "has some reasonable relationship to the preservation or efficiency of a well regulated militia"?
Was the Court talking about the issuance of militia regulations or any mandate that forces someone to have as their focus "the preservation or efficiency of a well regulated militia"?
No . . . The thing that the Court is saying must have "some reasonable relationship to the preservation or efficiency of a well regulated militia" is the type of arm and whether its possession could preserve the general militia principle and its use could promote the efficiency (in fighting) of those forces.
The sawed-off shotgun in Miller was not eligible for Second Amendment protection because the Court said it heard no evidence that, "this [type of] weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Had someone showed up to argue that a shotgun with a barrel length under 18 inches was a type of arm that would be useful in battle, the possession and use of that type of gun would have been protected.

Yes. Thus my referring to Miller as representing the militia aspect of the individual right (whereas Heller represents the self defense aspect of the individual right).

But like any interest, if the power over that interest has been conferred to Congress, no "right" to that interest remains for any entity to claim. That works for both states and citizens in both directions . . .

I don't accept that this is a universal rule. There are some cases where the feds have sole jurisdiction. There are other cases where jurisdiction is shared. Federal laws against murder, for example, do not prevent states from also having laws against murder.

In the case of the militia, a state government's power to use the militia to keep order within their own state state is a power that has never been conferred to the feds.

Also, the power that was conferred to the feds in Article 1 Section 8 was subsequently modified by the Second Amendment.

The provisions of the Bill of Rights are an amalgam of a bunch of proposals sent to Congress by the states; Madison wasn't the author, he was the editor.
For the RKBA, if you look at those suggestions and the provisions of the states, you see state constitutions lumped themes with similar objects (intents) together in their bills of rights.
Most of the states had a provision that had the intent of binding government in the area of military affairs in multiple ways, these provisions were three pronged. a) The citizens retained a right to bear arms, b) standing armies in time of peace were not to be maintained and c), the military should always be subordinate to the civil authority. A typical one was my state's:

• 1790 Pennsylvania:That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

Again, the framers were very accustomed to legally inert, inactive declarations of principle in constitutional provisions; nobody believed these provisions really forbade the forming and maintaining of a national army; these were state constitutional provisions with zero effect beyond the state line. They were merely stating an ideal . . .

I interpret such a provision as actually forbidding a peacetime standing army.

Being part of a state constitution, I don't think it has any power over the feds however.

And yet the laws prohibiting private militas exist and the 2nd Amendment is not a claimable immunity to repel prosecution if and when the authorities decide to prosecute, see Presser and Heller.

The First Amendment will be claimable as immunity to repel prosecution. Freedom of association and freedom of speech.

That's not to say that private militia cannot be prosecuted if they actually attempt to carry out law enforcement functions. But so long as all they do is get together and proclaim themselves to be militia, they will be safe from prosecution.

 

[woodwork201]

Big Army has never sent all or even a majority a state's National Guard assets and personnel overseas at the same time. There are plenty for state defense, or natural emergency response. The state governors and AG are on signed commitments to support other states, if those state request it, also. So, they are always available to answer the call of the state or states, performing that state defense mission.

Who said anything about sending a majority or all of a state's National Guard personnel overseas at the same time or at any time? The Constitution does not give the Federal Government the authority to send a single militia member overseas. Not all, not the majority, and NOT ONE. The National Guard is regular army reserve and subject to deployment overseas and are often sent overseas. This means that the National Guard is NOT the militia. Your post is pure nonsense.

 

[woodwork201]

That's not what "government interest" means here though.

If the state can establish that a regulation would actually save a lot of lives, that would pass muster as being a legitimate state interest.

Gun regulations that cannot be established as saving a lot of lives on the other hand would be unlikely to pass muster.

So laws against pistol grips or flash suppressors will be out. There is no way that such laws save any lives.

The same also for New Jersey's law against hollow point ammo. And the various laws against .50 caliber guns. Those laws do not plausibly save any lives.

Laws against machine guns though will probably stand. People can make a credible case that machine guns can do a lot of damage in the hands of a bad guy.

It is exactly what "government interest" means here. And there are no "government interest" exceptions to the Constitution. It doesn't matter if it saves one life or a million lives, the right to keep and bear arms SHALL NOT be infringed.

 

[woodwork201]

During Reconstruction, Congress completely disbanded the militias of some southern states. Of course in 1903, Congress completely absorbed the state militias into the federal Army, in 1933 demanded duel enlistment and in 1952 finally robbed the states and their governors their authority over the federalized "state" guards . . . No state sued this overreach of federal power until 1990, the federal government was sued by a governor, fighting the deployment of "his" state guard overseas for training, Perpich v. DOD, 496 U.S. 334 (1990).

As had been done every previous time SCOTUS ruled on "militia" disputes, it said federal powers are supreme and preemptive of claims by the states.

Today, there are no powers and certainly no "rights" to be claimed by any entity, federal, state or "the people" (citizens) to call-up, organize, train or deploy citizens as militia.

States posses a power granted to them by Congress to form and deploy "State Defensive Forces" but those bodies (like the National Guard) are created under the Constitution's authority of clause 12 (To raise and support Armies) and Title 32 of the US Code which creted the National Guard, which means the supposed autonomy and exclusion of SDF's from federal call-up is in question. Neither the National Guard or SDF's are militia, at least how the Constitution contemplated and codified "militia".

The States absolutely have the right to create and control their own militias. The Constitution grants Congress some authority over "such Part of them as may be employed in the Service of the United States". The clear intended implication is that there is part of the militia that is NOT in the service of the United States and is, therefore protected under the 10th Amendment, a power of the States.

In fact, for much of the history of the United States, Congress chose not to exercise their legitimate power to arm, train, and discipline the militias according to the discipline prescribed by Congress - and still the militias existed in the States.

Congress' authority over the militias only extend to those parts in the service of the US and that service can only be insurrection, invasion, and to enforce the law of the United States.

 

[C_Clayton_Jones]

In my view the only definition of the militia that matters is what the Constitution describes.

In your personal, subjective, and irrelevant view.

The only definition of the militia that matters is what the courts decide – ultimately the Supreme Court.

But you’re entitled to your opinion, no matter how wrong.

 

[AZrailwhale]

We have a well regulated militia. It is called the National Guard.

Nope the Guard is part of the military. It ultimately answers to the president. Just ask the ghost of Orval Faunus who had Ike federalize the Arkansas National Guard right out from under his orders when he used it to enforce segregation. I believe the same thing happened in Alabama.