What is a Militia?

[Arlo]

Originally posted by Charon
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?[1] 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?[2] It's actually the opposite.[3] We have unlimited rights but those restricted by law, and those restrictions fall under Constitutional scrutiny.[4]  

1. You infer incorrectly.

2. If you want a law changed, yes. No different than you (or your chosen representative) challenging any law or other citizens presenting their case if it differs from yours.

3. It was before the law was legislated, yes. The process runs both ways - legislation of law - repeal of law.

4. ".... but those restricted by law." And yes .... legislation does indeed fall under scrutiny regarding the Constitution. That's the function of the third branch.

[lazs2]

we are back to the fact that..

"The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms. "

But.. if we wish to stay on the militia point.. to simply define the militia...

The CURRENT federal code is that the militia is every able bodied man.   It says woman too but only if she joins the national guard.. good luck in a civil rights case on that one!

You have to really stretch to see the second as a guarantee that states could form national guard units and so.. "the people" meant in reality.. the state.

Further.. you would then have to stretch to say that "every able bodied man" was further qualified by some mish mash of signing up procedures..  That if a state neglected to sign you up for a militia you were no longer "the people" and your right to keep and bear arms could be infringed.

Then we get to restrictions on firearms.    I think that weapons that have been shown to be an unreasonable danger to the public could be regulated but not banned... the .50 for instance... regardless of "need" has been shown to be no more of a danger to the public (per capita of weapons) than say... a single shot shotgun.    Machine guns and so called "assault rifles" have not stood out as being particularly dangerous nor has their being owned been abused more than any other weapon..   there is no real "need" to ban them.

semi autos have more "potential" for harm than bolt actions.. single shots less than bolt actions.. shotguns less than rifles... semi auto handguns more than revolvers... revolvers more than single shots... flintlocks less than percussion... and on and on.. at what point do you stop?

The truth is.. we do have a guide.. the UN has given us a guide for what we "need"  they feel that nothing more than a single shot that will not launch a projectile more than 100 METERS is all that we "need".

Do you agree?  why not?

I sure do hope that the individual rights thing is part of this decision... The think I fear most is people like arlo who do not understand the constitution and individual rights.. or rights at all... that think that we have no rights save those granted to us by our government.

lazs

[lazs2]

The current US code.

§ 311. 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.

that is it... everyone.. well..except for some civil rights violations like the age and gender thing...

The militia simply consists of every able bodied male... in the 1792 version.. you were in by default and then the states were given guidelines and rules for how to "organize" you.. then not doing there job did nothing to your status.

The current one, 311...is quite clear.. it is everyone.  it recognizes that those not in a national guard are still part of the "unorganized militia"  you simply can't read it any other way.

It says "all able bodied men" are the militia.. and then it explains that you can be, (1) organized militia or (2) unorganized militia...

as part of the later.. it certainly would appear that you are militia by default.. if you have are a citizen..

You can twist it any way you want but nothing about the second or any of the militia code says that the right to keep and bear arms is dependent on being in a militia or even that being in a militia is not a default proposition.

lazs

[midnight Target]

So you don't regard "organized" as the same as "well regulated"? It would seem to me that your post shot down your point.

[lazs2]

not sure I get you here.   I am saying militia is not a qualifier for a right but simply a reason, one reason,  to protect a natural god given right.

I am saying that in order to ever have a well regulated/organized whatever militia.. you will be glad that you have a pool of citizens to draw on who's god given right to defend themselves with arms has not been infringed.

But... if we want to play bingalongs game... if we somehow think the defenition of "militia" is important.. then we can play that too... The militia is simply every able bodied man.. what the states do with that so far as organizing is up to them and the people.  

I would even go so far as to say that while it is a right to keep and bear arms for each and every citizen... the states right to form some types of militias can be taken away by the feds or the people of that state.

As for the national guard... it is in violation of militia status in any case.. when the feds used em for the civil rights riots/marches.

lazs

[midnight Target]

Your post said there were 2 classes of militia.. Organized and unorganized. In other words well regulated and unregulated.

Since the second is all about the well regulated militia being necessary to a free state, it would seem to logically follow that the regulated militia by your definition would be limited to the National Guard and Naval Militia. And as such the only people the second is addressing would be those in these regulated militias ie. National Guardsmen or Naval militia.

[lazs2]

that makes no sense.    First of all..  a militia is not a condition of the second.. It is a reason for the right not a condition.   If it were a condition then "the right of the state to keep and bear arms" would have been used instead of "the right of the people to keep and bear arms"  

Next... Simply needing a well regulated (well regulated not necessarily meaning organized) militia does not mean that you have to have a standing organized militia... simply a pool to draw on.. they are unorganized until they are needed to be organized.

The code is simple enough.  the constitution is simple enough..  we are all the militia but... being the militia is not a condition of having our right as "people" to keep and bear arms.

lazs

[lazs2]

sooo...  we are going a little afield here and it would be helpful to define what it is we are asking.

The thread pretends to ask "what is a militia" but it really asks "what is the militia and can we use that as a qualifier for the second.

On the first.. the so called intent of the thread.   It is obvious by the writings of the time and 311 of the current code that the militia is every one of us.

On the second part...  as I have said over and over.. being in the militia is not the condition of being a "people" with rights... it is not saying that only the state  has a right to arm itself.   It is not saying that if you are in the national guard that you can carry any kind of gun anywhere you want "uninfringed" but your fellow citizens not in some quasi state militia can't.   Nope... it says "the people" to simply affirm the right.

pretty simply put.. it matters to your right to keep and bear arms not a whit if you are in the militia or not but... even so..  we all are in the militia with the exception of some who are not "able bodied" or of the wrong gender in which case... civil rights people would have a field day of course.

Certainly, it would have been better if they had left off the whole militia thing but their thinking was that no one would ever confuse reason with right.

lazs

[midnight Target]

Lets assume that belonging to a militia IS a requirement. A question that has by no means been completely settled except maybe in your mind.

If that is the case by your posted statute, there are 2 militias, organized and unorganized.

If a "well regulated militia" is the criteria for the qualifying clause then it is also clear from the statute you posted that the "well regulated" militia by statute is the "organized" militia, and NOT all of us.

[lazs2]

mt.. pretty big assumtion but I will bite... even if you made the stretch that the only reason to have a right to defend yourself was so that the state could have soldiers... even if you made the leap that the reason was the right.

Even at that...  say you believed that the second was simply saying that the state had a right to arm people only so they could have a well organized (as opposed to well regulated) militia...

How would that change anything?  the amendment says..  that because a well regulated militia is "necessary" etc.. it doesn't say that only a well regulated militia is the only way to have "security" is says that since one is necessary..  the right of the people to keep and bear arms shall not be infringed.

In that light.. using your assumption.. what do you draw on for the militia?  well...someone who thinks like you started the damn thread...

He asks.. what is the militia?    The answer is clear.   It is in the current federal  code and the writings of the time.

It is everyone.. Like it or not... It is and has always been described as every able bodied man.

We second amendment rights guys would rather the whole militia thing had been left off but..  we are on less shaky grounds that you guys who don't like the whole "the people" thing.    If it had been intended to arm a national guard..

well.. it wouldn't have even been needed for one thing.. and for another.. It would have said "the right of the state to keep and bear arms shall not be infringed"   course.. the word "right" is embarassing in itself to you guys..  a "collective right" is no right at all.   There is never a need to mention an "collective right"  such a thing is meaningless.

The only "right" with any meaning at all is an individual right.

lazs

[midnight Target]

What or who you draw on for the militia is not relevant. The militia must be "well regulated" in order to be necessary to the protection of a free state. Your statute lists just the National Guard and Naval Militia as "organized". Maybe you can parse hairs and separate regulation from organization, but it seems pretty clear that your definition of "everyone" as the militia is just not holding water.

[lazs2]

It is not my definition.   it is the current federal code 311 and it is the one used by the founders.

You can split hairs all you want but even if you think that a militia is the only way we can have a "right" and that somehow... "the people" means "the state".

The fact remains that the militia is what it is.. how it is "regulated" remains up to the states.. if they think that they don't have to sign me up...if they think that part two (every able bodied man) or the founders ideas (every able bodied man) is good enough then I guess that solves it then doesn't it?

Now.. if the militia is every able bodied man... of which there can be no arguement right?   then.... if you want to say that it needs to be "well regulated" then... you need to define what you mean by that.

Not only that but.. you need to say that if the states aren't following your ideals of "well regulated" that they, not I, am in violation.

Of course.. that would mean that you don't give them the freedom to define "well regulated"    To some states that could be as simple as an accurate census.  who are you, or I, to say that is not enough?

once we get to that point.. we have that tricky "the people" phrase... somehow..you have to turn that into... "the state"  that get's a little more difficult now doesn't it?

For my part..  I am gonna have trouble with my definition of "infringed"  I think it means.. well not screwed with.   Others will say.. regulation is not infringement.. not so long as it still allows the ability of the people to keep and bear arms.   useful ones.    It may mean to some that you can't ban em but you can make tests for owning them.. so long as being sane and safe is pretty much good enough and there is no onerous (infringe) tax or fees or hoops to jump through.

we will have to wait and see.

lazs

lazs

[midnight Target]

Originally posted by lazs2
It is not my definition.   it is the current federal code 311 and it is the one used by the founders.


Now.. if the militia is every able bodied man... of which there can be no arguement right?  
lazs

I deleted everything that didn't relate to my point.

Of course there is an argument! Here is 311 one more time:

(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."


If well regulated means the same as organized then (b)(1) is saying you are wrong.

[lazs2]

ok... slowly...  

the second says a "well regulated militia being necessary"  that does not mean that it is the only reason... it does not mean that the militia even has to be "well regulated" 100% of the time...

 well regulated does not mean organized.. that is why the federal code says organized and unorganized.

If the meant organized then they should have said organized.  The only word that applies in your scenario of qualifier for right is "militia" and I have shown what that means.  it means every able bodied man.

Are you trying to say the the second allows one militia (organized) to exist but not another (unorganized)?   or that "the people" would then mean only the organized militia?   why then not simply say the organized militia or state militia or say "the right of the state"?

since the militia is the people and the second says the right of the people.. it would seem that it is consistent.   Your definition requires that you make a lot of stretches and changes in wording.   It also makes the amendment worthless.   Not a right at all.   Something that the government has is not a right of the people at all.

The tenth amendment clearly distinguishes between "state" and "people".   the difference was well understood.  If the meant state they would have said state.    If "militia" means what the founders and the federal code say it means.... then we are all the militia.. that leaves only "well regulated" to be defined any way anyone wants but certainly no qualifier since every state and  every person would have their own idea of such..  at the time.. many of the founders felt that no amount of training could make any militia effective so training was not a part of it.



lazs

[lazs2]

also... in 41 law review articles published since 1980... only four do not subscribe to the individual right model.   the tenth is pretty hard to get around since it shows that "the people" and "the state" were well understood and the tenth makes the distinction.

an excellent article that is highly footnoted and explains the national guard and the milita and the second in general is here.

http://guncite.com/journals/reycrit.html

I think that some of you will like the article since it does not preclude limitations that are not oppressive.. for instance.. waiting periods or gun free zones so far as children or.. even taking away the rights of felons.  

some regulations would exist but "virtuous" men could not be denied the right to have weapons up to and including assault rifles.

something there for everyone but.. nothing for someone who thinks the militia is a qualifier or that the national guard is the militia.   or that the second is anything but an individual right.

lazs