What is a Militia?

[lazs2]

bingalong...  I don't think that even you would say that "need" is a condition of rights.   I don't think that anyone would say that a .50 was not useful as a militia arm or for recreation... or for defense for that matter.   That does not mean that is could not be regulated.. it would mean that no one could be barred or unreasonably "infringed" from owning one.

I don't follow what your problem is with some types of weapons over others.   machine guns and .50's have never been a problem to the public.   Is your criteria "need" or is it "potential for harm"  you don't seem very clear.

"Need" is a slippery and elusive slope...  who determines "need"?  "need" for what?  for home defense a single shot shotgun is probly good enough for absolute "need".. for street.. a revolver.. for militia.. a machine gun.

And.. as for the militia.. the current defenition.. is the organized and the unorganized militia.   it is two part.   Those not in an organized militia are by default, in an unorganized one.  

Even by the first definition in 1792.. we were all part of the militia.. it was up to the states to organize it.   Not the "peoples" fault if they didn't.. we did our part.. we had the guns.

I am sure that you are right on one thing tho.. no matter what is ruled.. that it is an individual right.. there will always be some micromanager who thinks he has the right to determine what the rest of his fellows "need".

lazs

[lazs2]

damn.. musta been writing when charon was... I don't think we can expect an answer on what is "needed" and what bingalong would allow us to have or why.

He would probly do like fienstein and just look at a gun digest and throw out every gun that looked sinister.

lazs

[Bingolong]

You dont need a 50 or a machine gun to hunt!  you want it!
It's not what I will allow, why do you feel the need to make this personal.

The law states that you are not the militia anymore  Go sign up show me your enlistment in your militia  

restrictive and definitive definition of militia,
I misspoke I'm sorry is this not the law of the time?



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, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.


III. And be it further enacted, That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General's office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and bugler. That there shall be a regimental staff, to consist of one adjutant, and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one serjeant-major; one drum- major, and one fife-major.

IV And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.

been over this before

[lazs2]

you are still not getting it.. the second is not about hunting or about need.. it is about rights.

We have been over the militia thing.. the current federal definition is...

"§ 311. Militia: composition and classes
How Current is This?
(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."

Why am I not a member of the unorganized militia again?  

And again.. the original 1792 definition was an unfunded mandate.. the feds couldn't force the states to do it.   I would be fine with that tho... go ahead and sign me up so long as all I have to do is keep my guns and show up when their is an invasion.

The militia is simply every able bodied man... a pool to draw from.   in order for us to have that pool.. in order for us to have a pool worth having... The right of the people to keep and bear arms shall not be infringed.

Now.. if you want to say that every state is in noncompliance with the federal militia law.. that is fine too.   Not my fault.. I have done my part by being the "people" and having arms.

lazs

[Arlo]

Originally posted by lazs2

Further.. I have a draft card.   At one time we all did.  (At one time?) It said that I could be called to service...  even tho I did nothing but sign up.   In fact.. the draft still looms over all of us.   it could happen again next week.   If a militia is so outdated then so is the draft.  we don't need to draw from the citizens.
 

Why do you wanna shoot your "argument" in the foot by saying selective service made the minute men of the revolutionary war a useless practice?

[Arlo]

Originally posted by lazs2

And.. as for the militia.. the current defenition.. is the organized and the unorganized militia.   it is two part.   Those not in an organized militia are by default, in an unorganized one.  

Your rationale for your argument. Nothing more. Unless the SC uses it (which I doubt).

[Bingolong]

"Why am I not a member of the unorganized militia again?  

And again.. the original 1792 definition was an unfunded mandate.. the feds couldn't force the states to do it.   I would be fine with that tho... go ahead and sign me up so long as all I have to do is keep my guns and show up when their is an invasion."

Cool then you will be in the militia. It was an act/law not a definition.


"The militia is simply every able bodied man... a pool to draw from.   in order for us to have that pool.. in order for us to have a pool worth having... The right of the people to keep and bear arms shall not be infringed."

Yes well regulated! It dose not become the militia untill the pool is full!



"Now.. if you want to say that every state is in noncompliance with the federal militia law.. that is fine too.   Not my fault.. I have done my part by being the "people" and having arms."
 
Now you hide behind the state "never did its thing" to bad. Until the state does it ain't you, according to the law. What is the people having arms without the militia? that is REGULATED?  An further why do the people have to "militia"? Why not just run around as individuals?

[Charon]

It's not what I will allow, why do you feel the need to make this personal.

Well, right there you say:

You dont need a 50 or a machine gun to hunt! you want it!

That's a personal opinion, in a similar vein to others you have made in this thread. People do hunt with .50s btw, but then again hunting is not addressed by the 2nd Amendment so it is somewhat of a moot point. Again, you seem to want to restrict various classes of weapons on some "wants" basis, but the classes of weapon typically on the front burner of restriction are also the least likely to be used by criminals. Semi-automatic rifles like the AR-15, for example, are used at best in 1-2 percent of firearm homicides, about on par with the Louisville Slugger.

Also, in the decade or so since .50 rifles have been on the market, I don't believe a single one has been used to commit a homicide. Not really a choice among criminals.

The law states that you are not the militia anymore  Go sign up show me your enlistment in your militia.

I though we already covered The Militia Act of 1792. It was an attempt to by G. Washington organize the general militia along the lines of a select militia, that was, by and large, a failure. Washington was no fan of the general militia as a force against "enemies foreign" and wanted a more "select" militia structure (but not one that fully crossed that critical boundry.

During his first term as president, George Washington worked with Secretary of War Henry Knox to reorganize and strengthen the militia. They sent their plan to Congress, and after heated debate Congress, on May 9, 1792, passed what became known as the Uniform Militia Act (1 Stat. 264). This law, which remained the basic militia law until the twentieth century, stated that all free, able-bodied white men, age 18 to 45, were required to serve in their state militias and that they were obligated to supply themselves with the appropriate firearms and equipment. The law provided certain specifications for how militia units were to be organized, but Congress left many details to the states and declined to include sanctions for states or individuals who failed to comply with the law. As a result, the act had little legal weight and served mostly as a recommendation to the states.
http://law.jrank.org/pages/8571/Militia.html

Note that this failure of organization was clearly foreseen by Hamilton (see quote below) in Federalist 29.

Washington eventually got his wish for a state/federally controlled militia nearly 100 years later with the formation of the National Guard (a fully select militia), after a variety of interim militia acts. It is clear from the act, however, that everyone eligible for service (all adult males, basically) have a military rifle and the ammunition for it and that those weapons were to be kept in peoples' homes, not in government armories.

That act does not invalidate or restrict the core principlas behind the 2nd regarding our domestic, tyrannical threats as clearly stated by the Framers:

Madison:
"Besides, the advantage of being armed forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would certainly shake off the yoke of tyranny, as America did."
(and a lot more in Federalist 46)

Mason:
"To disarm the people is the best and most effectual way to enslave them." Mason defined the militia as "the whole people, except for a few public officials."

Jefferson:
"When governments fear the people there is liberty. When the people fear the government there is tyranny."

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

Hamilton (a federalist and the father of big federal government, btw):
"What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."

"If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."

More Tench Coxe:
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

etc.

Again, you seem to be at odds with what is even considered to be modern liberal  Constitutional thought on the issue. The call now is to Amend the Constitution, not try to subvert it. Not that the SCOTUS is absolutely assured to find the 2nd to be an individual right. Won't know for sure until the decision is announced.

Charon

[Bingolong]

Nice history lesson I posted a " " from 29 a few pages back thanks.

Tell me charon what is the law today as it relates to you and a militia. Again go sign up! I think I have followed the law right up to today... no?

Tell me why do you think the SC ask the question the way they did?

[Arlo]

Originally posted by Charon
Well, right there you say:

 "You dont need a 50 or a machine gun to hunt! you want it!"

That's a personal opinion, in a similar vein to others you have made in this thread. People do hunt with .50s btw

.50 belt fed machinegun (automatic weapon)? Hunting? For that matter ... a modern .50 shell and not a muzzle loader .50?

So, please tell me that you don't find Bingo's opinion a practical one? A practical opinion is not a personal attack.

[john9001]

so we are only allowed "practical" guns?  Who decides what is "practical"?

[Arlo]

Your elected representative and peers.

Staples: That was easy.

[Charon]

Tell me charon what is the law today as it relates to you and a militia. Again go sign up! I think I have followed the law right up to today... no?

I don't have to sign up. I signed up by nature of my being an American citizen. As part of "the people." At one point in time I was part of the Federally controlled standing Army. I was never a part of the National Guard, or select militia, though if I were I would ultimately be under the control of the Federal government should the Feds make that decision. Obviously, few at the time paid much formal attention to the Militia Act. I doubt they questioned their right to own the rifle standing in the corner though.

The Founders expressed a strong desire to have the people armed to check potential tyranny -- with domestic tyranny clearly a stated concern in regard to the 2nd. That is not accomplished by either the standing Army or the National Guard -- both ultimately federal entities.

Nice history lesson I posted a " " from 29 a few pages back thanks.

Actually, I think this was the Hamilton piece you posted:

Alexander Hamilton, Here I expect we shall be told that the militia of the country is its natural bulwark, and would beat all times equal to the national defense. This doctrine, in substance had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which from our own experience forbid any reliance of this kind are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquire and perfected by diligence, by perseverance, by time, and by practice. (-- Rossiter, p. 166)

Which simply states the limits that can be expected from a militia in regards to foreign conflicts. Hardly a unique position among the founders and a central component of the debate over standing armies and select militia's, etc.

So, please tell me that you don't find Bingo's opinion a practical one? A practical opinion is not a personal attack.

The weapons in question are the bolt action or semi auto .50 cal rifles. Weighs 30 lb., costs $8000. A belt-fed M2 is still a highly regulated Class III weapon that may, or may not, be covered as a right under the 2nd even if it is established fully as an inalienable right. The reason being that this is a crew served weapon on the edge of being ordnance.

What is practical, though, about highly regulating a weapon like a .50 Barrett that is about last on the list of weapons used by criminals? That, regardless of the hype, is no more likely to be used by a terrorist to shoot down an airliner than a far lighter, easier to conceal and easier to track (moving target) .30 cal hunting rifle? Even an M2 would be fairly marginal against an airliner. A 40mm Bofors perhaps, of course also likley covered under ordnance, though there are die hards that would argue otherwise.

Tell me why do you think the SC ask the question the way they did?

The wording: “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

People a lot more knowledgeable than I on the subject, in threads on boards focused on legal issues relative to the 2nd Amendment believe the specific wording suggests:

1. The original case focused on handguns but was broadened to include all firearms.
2. The Court will address whether an unloaded and locked firearm deprives you of your 2nd Amendment rights.
3. That the collective state militia vs individual rights issue will be addressed. As noted, there has been a shift in liberal Constitutional scholarship on the issue, and when I note Lawrence Tribe he is a giant in the field whose books are read by those sitting on the Court. So, conventional wisdom shows the likelihood of the finding of an individual right given makeup of Constitutionalsts/conservatives and even the liberal members who may have a harder time countering the individual rights position today than previously, since the liberal academic position has shifted significantly.
4. The ruling will be very narrow, and other rulings will have to develop to cover the critical incorporation issue and the limits of reasonable restrictions.

This is not a Google post, but a thread that reached 10 pages that I followed directly as it developed with the feedback of lawyers included as to the ramifications of the wording. http://www.thehighroad.org/showthread.php?t=317932

Another perspective from the well-regarded SCOTUSBlog

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident – have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.

The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.

Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.

One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”

The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.

Charon

[Arlo]

Originally posted by Charon

The weapons in question are the bolt action or semi auto .50 cal rifles. Weighs 30 lb., costs $8000. A belt-fed M2 is still a highly regulated Class III weapon that may, or may not, be covered as a right under the 2nd even if it is established fully as an inalienable right. The reason being that this is a crew served weapon on the edge of being ordnance.

What is practical, though, about highly regulating a weapon like a .50 Barrett that is about last on the list of weapons used by criminals? That, regardless of the hype, is no more likely to be used by a terrorist to shoot down an airliner than a far lighter, easier to conceal and easier to track (moving target) .30 cal hunting rifle? Even an M2 would be fairly marginal against an airliner. A 40mm Bofors perhaps, of course also likley covered under ordnance, though there are die hards that would argue otherwise.
 

Let me counter with what game is it used to hunt in North America? Are the large clubs of owners that habitually use it for such? What practical purpose does it serve a "militia" as defined by any yokel who wants to buy one and play "Army sniper" (Mr. Black), for isn't the weapon designed to be the mother of all military sniper rifles? How does one defend their home from criminals with one? How does one conceal it? Why is it "neccessary?"

Can in be practically regulated? Yes.

So, I'm all for ownership. I'm also all for the hoops it'll take to hop through to get it. Just remember that Buffalo are protected.

[Charon]

Let me counter with what game is it used to hunt in North America? Are the large clubs of owners that habitually use it for such? What practical purpose does it serve a "militia" as defined by any yokel who wants to buy one and play "Army sniper" (Mr. Black), for isn't the weapon designed to be the mother of all military sniper rifles? How does one defend their home from criminals with one? How does one conceal it? Why is it "neccessary?"

It's primary sporting use is competitive long distance shooting. It has been used to varmint hunt as well. I believe other game has been taken. It is not primarily a hunting weapon.

In the defense of tyranny model, it is primarily used as an anti-equipment weapon. Shooting out engine blocks, disabling aircraft (on the ground), etc.

Why is it necessary? So your position is that we essentially start from a position of having no rights and we are then granted rights by the BOR? And I have to justify why I could own such a weapon vs. the Govt. making a case as to why it should be restricted? It's actually the opposite. We have unlimited rights but those restricted by law, and those restrictions fall under Constitutional scrutiny.

I bet there are any number of things you enjoy (or I, or anyone) where some percentage of the population would question the need. The vehicle you drive, the music you listen to, the Web sites you visit, the attraction to a specific gender, the food you eat... I don't like your choice, now justify the need for your choice. I can think of a half dozen easy arguments to restrict the 1st Amendment. Look at all the fear-based justifications for trampling the 4th and 5th. Freedom is messy, and it can make people uncomfortable (just look at the Wiemar Republic)* but I prefer it to the alternative.

Essentially, with a .50 rifle you have a class of weapon that has not been directly used in a homicide in over a decade(as best I can tell -- there might be a single incident). They are expensive, hard to conceal and not practical crime weapons. Even a terrorist would be hard pressed to find an application that would provide an acceptable ROI.

Personally, I have no particular need, want or interest in a .50 rifle. Didn't even get that big a kick out of the M2 actually after the first time I fired it. But that's immaterial to any right to own the weapon.

Charon

* Goodwinson Alert!