Originally posted by Toad
Again, the militia clause is a subordinate clause.
The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.
The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
That's really all there is to it, although I understand it will take an SC ruling to make plain words understandable to some of you people.
No one that as read the actual history of the writing of the 2nd amendement, coupled with the writings of the founders of this nation can honestly have any doubt about what the amendment means or the intent of the founders in writing it.
That does not mean there isn't a shipload of weasle-word lawyers that won't try to obfuscate plain language and twist the Constitution into something it was never intended to be.
The militia were not created by the common law. Militia law is statutory law. The charter of each American colony included authority to create militia units. All American colonies passed militia laws under the authority granted by their charters. All states and the federal government have militia laws. There never was a period of common law militia in America.
Interpreting statute law and the Constitution to understand the meaning of 'militia', for example, does not mean that there ever was a common law militia. Even if the Bill of Rights or the Fourteenth Amendment means that laws against unauthorized paramilitary organizations are unconstitutional the result would not change civilians into some sort of common law militiamen.
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.
The concept of the militia to remember is that it was a SYSTEM to create organized armed forces for the colony. The militia could be called out by local officials for defense purposes or called out by the colonial leadership. There was also fighting and killing done by groups that were not militia units.
The term for those within the militia system was simply the militia. A distinction was drawn between those who did their militia duty in the compulsory units and those who did their militia duty in volunteer units. The compulsory militia was known as trainbands, beat militia, or enrolled militia. The volunteer milita was known as the volunteer militia, or the uniform militia. The term 'uniform' referred to the fact that the volunteers wore uniforms.
The militia were revitalized and reorganized in the 1770's by the colonies to provide a force to counter the British Army in the growing constitutional crisis over the colonies.
"In September 1774 the Continental Congress endorsed a resolution from Suffolk County, Massachusetts, calling for the colonies to reorganize the militias under leadership friendly to the "rights of the people," setting in motion a series of provincial actions that made the militia the cornerstone of armed resistance to British policy through the winter of 1775. Massachusetts moved first to revive the militia's ancient function as the armed guarantor of the civil constitution. In October 1774, the provincial congress instructed local committees of safety to assume responsibility for the training, supply, and mobilization of the colony's militia system. It also directed the citizens in their capacity as militiamen, and "with due deliberation and patriotic regard for the public service," to elect their own company officers. Those chosen in local voting were to elect regimental officers to command the militia at the county level. The provincial congress retained the power to appoint general officers, ensuring that the military order remained ultimately subordinate to civil authority.
"Resolving "that a well-regulated Militia, composed of the gentlemen, freeholders, and other freemen, is the natural strength and only stable security of a free Government," the Maryland convention acted in December 1774 to reorganize its militia under a popularly elected officers corp. ...Six month later, in an effort to provide a source of manpower for the newly formed Continental army, Congress recommended that all states adopt the republican principles embodied in the Massachusetts militia structure. ...By early fall [1775] provincial assemblies in Maryland, New York, New Jersey, Pennsylvania, Virginia, New Hampshire, and North Carolina had taken steps to comply with the congressional recommendations.
When the Founding Fathers referred to the militia, they were referring to the state organizations that had already existed for decades or even more than a century in some states by 1787. These state organizations had extensive militia codes which regulated who would be and who would not be in the militia, how, when and where militia members would train, who would officer the militia, what the punishment for transgressions would be, how the militia could be called up, etc. Although it was common for people to refer to the state militias as consisting of all the people, since they did consist of one whole heck of a lot of the people, anyway, in actual fact, exemptions were very common, and it was easy for wealthy or privileged people to avoid militia service. These state organizations were hierarchical in nature. In some states officers were elected; in others, they were appointed by the state. The entire state was usually organized into geographical divisions which corresponded with a military division. Divisions were geographically subdivided into brigades, regiments, and companies, just like regular military units. In Southern states, regiments often corresponded with counties, and militia captains had additional civil responsibilities, such as handling elections or appointing slave patrols.
It is a mistake,to conceive of the militia merely as a mass of individual men with guns. Though indeed they were citizen-soldiers, they were as organized as eighteenth century society could organize Americans, and when they were called out, it was usually through a top-down, organized fashion
