A well regulated militia

[legaleagle_45]

being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The history of the 2nd Amend is quite interesting and often overlooked. If you understand the history, then the 2nd Amend makes much more sense and both the declaration A well regulated militia being necessary to the security free state and the guarantee the right of the people to keep and bear arms shall not be infringed. make perfect sense together

The story begins with...

Alfred the Great vs. the Vikings!!!!

Viking raids in the latter half of the 800's presented a unique problem for the only English King ever to achieve the label "Great". The Viking Longships had a very shallow draft and could not only navigate oceans, they could go far upstream, requiring only a water depth of about one meter. This capability made the traditional defense of fortified strong points obsolete, as the Longships could strike almost anywhere there was a river.

Alfred's solution was to initiate the first militia system in English history. All freemen were to have arms and receive rudimentary training so as to act as a holding force until help could arrive. The system worked quite well as was retained by England thereafter and formalized in a series of militia laws and laws variously known as "Assize of Arms" which spelled out a duty to own and maintain arms. At various times the obligation to have arms fell upon every "free layman" then later to all men including serfs. This requirement extended to all and not merely persons enrolled in the militia and that in "time of need" that person "shall find a man who can use the arms in the service of the lord king".

Enough for now.

 

[bendog]

And that worked out so well for the Saxons. (-:

Serioulsy, good to see your posting.

 

[legaleagle_45]

OK, some definitions seem in order..

A militia, as that term is used in the 2nd Amend is a governmentally controlled entity... it was NOT a private paramilitary organization.

The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. --John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)

What distinguishes a militia from other military units controlled by the government is that it is composed of civilians who serve on a part time basis while retaining their civilian jobs and civilian residences... Training would usually occur one weekend a month, thus they are oft time described as "weekend warriors". They could only be called into service for certain purposes and could not be sent out of the County unless certain circumstances arose. Under no circumstances could they ever be ordered outside of the country... not no how not no way.. See, Blackstone, Commentaries on the Laws of England, Chapter the Thirteenth : Of the Military and Maritime States .

This is in opposition to a professional army who serve on a full time basis and in colonial times were more akin to a mercenary force who owed their loyalty to whomever paid them. Conversely, a militia was composed of your friends, relatives and neighbors and could never be used as a tool of tyranny. In this respect, the militia ideal was quite similar to the jury system. A jury is the peoples voice in our judicial system and acts as a guard against judicial or prosecutorial oppression. A militia is the peoples voice in our military systems and acts as a guard against oppression by ambitious generals or politicians.

Well regulated is an adjective which describes a certain type of militia. Those who try to assert that "well regulated" means it is subject to the rule of law are quite mistaken. Such a meaning would in fact be duplicative. What "well regulated" actually means "properly functioning". Its derivation is traced to a colloquial term during the pre colonial and colonial period that originated from adjusting pendulum clocks. To insure a pendulum clock was accurate. it was necessary to adjust the length of the pendulum so it would give the right time. This was accomplished usually by adjusting a screw located at the bottom of the pendulum. This action was known as regulating and when the clock was accurate, it was said to be well regulated. This terminology was then applied to all manner of things to express the need for something that functioned as it was intended to do. In fact the terminology "well regulated states" was employed by Blackstone in his commentaries. This colloquial usage survives to this day in some aspects. Some pendulem clocks are "regulators", Jamie lee Curtis hawks a brand of yogurt that is claimed to keep your digestive system "well regulated".

Arms had a meaning at common law which can be explained as single man portable and use items of offense or defense intended to be employed in single man combat. See Sir Edward Coke, Institutes of the Lawes of England, Commentaries on Littleton 151b, 152a.

Ok enough for now.

 

[legaleagle_45]

This is where the "duty to have arms" led to the "right to have arms"...

As was previously noted, the duty to have arms extended well beyond merely members of the militia. The reason for this is quite obvious, not all people could afford to have arms or would otherwise obey the dictates of the law in spite of legal requirement. If you require more people to own arms than would otherwise be necessary it is quite conceivable that any shortfall can be made up from the general populace. This practice carried over to the colonies where the requirement to have arms extended to all heads of households and not merely members of the militia.

Of course there are two basic ways to insure compliance with a law... a carrot and a stick. The stick is a criminal penalty for not complying with a law. A carrot is a benefit conferred for compliance with the law. In addition to imposing sanctions for not having arms, England actively encouraged ownership and use of arms (so they would know how to use them) in a number of ways. First, they subsidized the cost of arms so more could afford it. Second they built and maintained shooting ranges so that the people could actively practice the use of arms. Third, they sponsored contests testing the skill in the use of arms. Finally, the arms which they were required to keep for use by the militia were of such a nature as could be employed for hunting, self defense and other lawful activities. This "dovetail" of private usage and militia usage was intentional and the obligation to own arms increased based upon your feudal status. An ordinary commoner was not required by law to own a cannon or a catapult. The we required to own a bow and arrows and other personal weapons susceptible to private usage. The cost of owning and maintaining these militia weapons was offset by the ability to use same for private purposes. .. an unstated benefit for complying with the law.

This unstated benefit slowly ripened into an expectation... a "proto" right to have and use arms for private purposes and such "proto" right did not cause in issues ...

UNTIL the "proto" right was violated and led to a bloodless coup called the "Glorious Revolution" in which King James II was forced out and replaced by William and Mary in 1689. As a condition to their accession to the throne, William and Mary were required to sign off on the English Bill of Rights, which is considered one of the forerunners of our Bill of Rights and contains amongst its provision a prohibition on royal interference in the freedom of the people "to have arms for their own defence" as suitable to their class and as allowed by law . There is no mention of militia in the English Bill of Rights and most people acknowledge this as an individual right to have arms for self defense and other lawful purposes and the courts acknowledged it as having that purpose in a series of cases decided following the adoption of same. See, Mallock v. Eastley, 87 Eng. Rep. 1370 (K.B.1744); The King v. Thompson, 100 Eng. Rep. 10 (K.B. 1787); Rex v. Gardner, 87 Eng. Rep. 1240 (K.B. 1739); Rex v. Hartley, II Chitty 1178 (1782); Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752).

OK, enough for now...

 

[bendog]

I am not aware that the constitution or bill of rights offered any right for a citizen to establish a private army.... or that is any prohibiton on either the feds or the state govt to prohibit a private army.

The miltias were local and state creations. The states with Jeffersonian majority views feared a chief executive could use the federal (continental) army to establish a tyranny ... or establish a monarchy ... or invalidate the consitutional scheme of passing power through elections. Thus, the feds were prohibited from interfering with state/local militas which served as a potentialmilitary counter-force to any tyranical aspirations of a person currently holding the executive branch or legislative majority.

 

[legaleagle_45]

I am not aware that the constitution or bill of rights offered any right for a citizen to establish a private army.... or that is any prohibiton on either the feds or the state govt to prohibit a private army.

I am also unaware of same and SCOTUS has indicated as much in Presser vs Illinois. Do you think that was what I was claiming? I hope not because that was not my intent. To the contrary, I quoted John Adams to make the point that a militia is not a private para military organization, but a governmentally created and controlled entity.

The miltias were local and state creations.

Correct.

The states with Jeffersonian majority views feared a chief executive could use the federal (continental) army to establish a tyranny ... or establish a monarchy ... or invalidate the consitutional scheme of passing power through elections.

This is indeed one of the concerns, it was not a major concern however. The more realistic concerns were that the feds would not properly fulfill their obligations contained in Article I, Sec 8, Cl 16 or that in exercising the power found in Article I, Sec 8, Cl 15, the state militia would be removed from their home state to meet an emergency elsewhere, leaving the home state defenseless in the event of an emergency

Thus, the feds were prohibited from interfering with state/local militas which served as a potential military counter-force to any tyranical aspirations of a person currently holding the executive branch or legislative majority.

Where are the feds prevented from interfering with with state/local militias, Ben? Do you believe that is what the 2nd Amend does? A unanimous decision by SCOTUS says the feds can totally eliminate the state militias and strip them of arms and equipment whenever they want. Funny thing is, Ben, not one justice mentio0ned the 2nd Amend in the decision, nor does it seem to have been raised by anyone else at the time.

The idea of the 2nd is to protect the viability of the state and local militia, but how this purpose is achieved is by protecting a preexisting individual right to have and use arms for private purposes.

It is the only thing that offers actual protection from the fears expressed by the framers. Every other formulation is merely illusory.

 

[bendog]

I was responding to this quote in post 3

This is in opposition to a professional army who serve on a full time basis and in colonial times were more akin to a mercenary force who owed their loyalty to whomever paid them.

At the time of ratification, had Washington wanted it, the Continental Army would have made him King. However, they weren't a mercenary force. Similarly, someone like a Hamilton, or perhaps Jackson, might have been tempted to use force.

 

[legaleagle_45]

At the time of ratification, had Washington wanted it, the Continental Army would have made him King. However, they weren't a mercenary force. Similarly, someone like a Hamilton, or perhaps Jackson, might have been tempted to use force.

Indeed if Washington had wanted it, the Continental Army would have made him King, because they owed their loyalty to him personally and not the Continental Congress or to the country, in much the same way as mercenary force would support their general over a governmental entity.

But you are right to an extent, the very nature of what a professional army is -- was evolving at that time in history. The advent of the French Revolution began to propel nationalism and patriotism into the equation involving professional armies and it was true to a large extent for the Continental Army in which patriotism and nationalism began to stir.

What I can also inform you is that the change was not appreciated or understood by the framers of the Constitution or the 2nd Amend. The still considered a professional army as something that would be feared as the "bane of liberty". There are debates in the ratifying convention about Caesar crossing the Rubicon with his professional army and laying waste to the Roman Republic (which had relied upon militias in the previous centuries of its existence, something that changed only during the Punic Wars out of necessity and which were to be employed only outside of Italy proper).

Another indication of this concern is found in the main body of the Constitution. to wit, Article I, Sec 8, Cl 12:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"

Which is almost identical in restriction to the prohibition found in the English Bill of Rights:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law"

Each new Congress has only a term of 2 years, thus each new Congress must sanction an army pursuant to the Constitution.

This prohibition was enacted because the army employed by James II was loyal to him personally... they were not loyal to England and they were more akin to a mercenary force.

 

[bendog]

At the time of ratification, had Washington wanted it, the Continental Army would have made him King. However, they weren't a mercenary force. Similarly, someone like a Hamilton, or perhaps Jackson, might have been tempted to use force.

Indeed if Washington had wanted it, the Continental Army would have made him King, because they owed their loyalty to him personally and not the Continental Congress or to the country, in much the same way as mercenary force would support their general over a governmental entity.

But you are right to an extent, the very nature of what a professional army is -- was evolving at that time in history. The advent of the French Revolution began to propel nationalism and patriotism into the equation involving professional armies and it was true to a large extent for the Continental Army in which patriotism and nationalism began to stir.

What I can also inform you is that the change was not appreciated or understood by the framers of the Constitution or the 2nd Amend. The still considered a professional army as something that would be feared as the "bane of liberty". There are debates in the ratifying convention about Caesar crossing the Rubicon with his professional army and laying waste to the Roman Republic (which had relied upon militias in the previous centuries of its existence, something that changed only during the Punic Wars out of necessity and which were to be employed only outside of Italy proper).

Another indication of this concern is found in the main body of the Constitution. to wit, Article I, Sec 8, Cl 12:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"

Which is almost identical in restriction to the prohibition found in the English Bill of Rights:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law"

Each new Congress has only a term of 2 years, thus each new Congress must sanction an army pursuant to the Constitution.

This prohibition was enacted because the army employed by James II was loyal to him personally... they were not loyal to England and they were more akin to a mercenary force.

Yes. And that is a central tenent to West Point educations. They serve the office, no matter how much they admire or dislike the office holder.

 

[Sallow]

The other shoe is that many of the founders did not want a professional standing army under Federal Control. State run militias were a way of assuring that the Central government did not have to much power. However, those who were opposed to that idea, like Hamilton and Washington, were able to basically establish a de facto standing army using expansion as the reason. And that army still remains intact today.

 

[jwoodie]

It seems to me that a state militia is like a volunteer fire department: Ready to serve the common good upon a call from appropriate authority. The right to self defense is an entirely different matter...

 

[legaleagle_45]

The other shoe is that many of the founders did not want a professional standing army under Federal Control. State run militias were a way of assuring that the Central government did not have to much power. However, those who were opposed to that idea, like Hamilton and Washington, were able to basically establish a de facto standing army using expansion as the reason. And that army still remains intact today.

We did not have a large standing army at any time time during the initial years under the Constitution. Following the revolutionary war, the Continental Army was almost totally disbanded (the remaining army consisted of one regiment to guard the a few forts on the western frontier and a battalion stationed at West Point-- about 600 men total).

In 1791 the Legion of the United States was formed and remained until 1796 numbering no more that 3,300 men at any one time. After 1796 the Legion was renamed the US Army and was reduced in size until the lead up to the War of 1812. By the start of that war the army had about 7,000, at the end of the war, about 35,000.. After the war the size of the army was greatly reduced again. Even during western expansion the US Army only grew to about 8,500 until the beginning of the Mexican American War. During that War, the army grew to 32,000. ... then reduced again. At the outset of the Civil War, the US Army had a total of only 16,000 men. By the end of the Civil War, 2.5 million men had served in the Union Army. It is only after the Civil War that the US Army was of significant size during peace time and much of this was due to occupation of Southern States during reconstruction. However, this force remained so that at the start of the Spanish American War the US Army had 300,000 men the first period of where we had a significant standing army during peace time..

 

[legaleagle_45]

It seems to me that a state militia is like a volunteer fire department: Ready to serve the common good upon a call from appropriate authority. The right to self defense is an entirely different matter...

It could be a volunteer force but technically it was not. It was a legal duty to be part of the militia although that law was rarely enforced.

The right to self defense exists independent of a militia and the right to have arms for lawful self defense is part of the 2nd Amendment.

 

[legaleagle_45]

So what does this individual right which was protected in the English Bill of Rights have to do with the militia?
Well first of all, keep in mind that a militia is a governmentally controlled entity. Tyrants would not move to disarm it, rather they would move to exert greater control over it. In the period leading up to the Glorious Revolution, the issue was religion. Following the restoration of the monarchy after Cromwell, there was concern about the ties maintained by the monarchy to the Catholic Church. This took on greater urgency when James II ascended to the throne as he was married to a Catholic and the thought of a Catholic King was too much for a great proportion of the population.

James II sought to preserve his power and prevent the possibility of revolution, and he did this by raising an army which was loyal to him, AND stocking the leadership of the militia with persons loyal to him as well. Making sure he was quite comfortable with the makeup of the "well regulated militia". He then proceeded to disarm his political opponents using the ruse of the Game Act of 1671. This law was passed with the idea of reducing illegal poaching and made it illegal for anyone who did not have a certain level of income to "KEEP" firearms or other "engines of destruction used for killing game. James II issued general warrants to search the homes of prominent protestants so he could remove any firearms found. The effort proved unsuccessful as protestants were still able to muster a militia to oppose James and he fled the country.

Note that James did not seek to disarm the militia, he manipulated the militia. He sought to prevent the formation of a real militia by disarming the citizens of the personal arms... this in turn prevents them from organizing an effectual militia to oppose him.

This is why George Mason stated in the debates concerning the ratification of the Constitution:

When against a regular and disciplined army, yeomanry are the only defence — yeomanry, unskillful & unarmed, what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger. Recollect the history of most nations of the world. What havock, desolation, and destruction, have been perpetrated by standing armies? An instance within the memory of some of this house, — will shew us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people. That it was the best and most effectual way to enslave them.

Proposition... the 2nd Amend preserves the capacity to form a well regulated militia from the ranks of the citizens if the need were ever to arise. It does so by protecting a preexisting individual right to have and use arms for individual purposes such as self defense. This, in turn, insures that a large portion of the population will have arms and know how to use them.

[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it. ---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.