There was both a right and a duty.
The duty was the state needed you.
However the Militia was seen as the ultimate check and balance against a tyrannical govt. As such a duty to fight a tyrannical govt isn't really there, because the Militia can be called up to the Federal or State govt's control.
What they wanted was a check which the people could use. Therefore it was a right, to fight against tyranny of their own government.
The right to be in an ad-hoc, citizen formed militia is not claimable / actionable for as long as the Constitution is in force -- there can be
no militia organized except that as set-out in Art I, §8, cl's 15 & 16.
Yes, the people retain the right to throw off a tyrannical government, but the first step in
that is taking back the powers granted to government (including the power to organize and call-up the militia) and invalidating any protections afforded to government by the Constitution (supremacy, preemption, prosecuting sedition and treason). So, until the people have rescinded their consent to be governed there is no right to be in a militia because the people have conferred that power/right to the federal government.
If the people
are exercising this right to form a militia and are fighting a tyrannical government, that means the organized militia is no more, the armed forces are no more, the government, as it existed
is no more . . . Simply because that government is no longer "
the government established by the Constitution", it is something else, something foreign and dangerous -- which is why we are fighting it.
Now, there might have been a duty to be in the militia, but then there would have also been a duty to own arms. Was anyone COMPELLED to keep arms? No. .
Yes. Once
enrolled and notified a man was required to "provide himself" with an appropriate firearm. The Militia Act of 1792 mandates:
- "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, . . . "
Therefore if individuals have the right to KEEP ARMS, they also have the right to be in the militia
The right to keep and bear arms has no relationship with militia duty or service. The pre-existing right is recognized and secured because an armed citizenry affords the state a body of properly-situated citizens, (with arms in their hands), able to be called up at a moments notice to aid the civil government in time of need -- while the government is operating properly. Again there is no right for citizens to form their own militia and train and drill.
You don't understand Presser v. Illinois.
I understand it and I understand how the Constitution works. There can not be a power granted like federal militia powers (a power that enjoys near field preemption) and then say that a concurrent "right" exists to do the same thing . . . That's just not how it works and
Presser explains it.
- "The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject."
There is ONE MILITIA (or 50, depending on how you look at it), it's described in Article 1, Section 8.
This is because they didn't want to destroy freedom by having any old militia walking around. It was a militia which had certain controls on it too.
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
This militia has state appointed officers, and training as authorized by Congress.
This is the Militia you have a right to be in.
SMH . . . Now you are changing your argument from saying the people have a right to make a militia to fight a tyrannical government to now saying the people have a right to be in the organized §8 cl. 15 & 16 militia . . .
You seem to get -here- that the
ONLY militias allowed under law are those organized by Congress (which sets the rules of discipline and conduct and the regimen for training) and commanded by officers chosen by the state governments, . . . and now you say there is a right to be in
that militia?
Not sure how this ridiculous premise would work, especially with the complete lack of attention and concern the states and federal government exhibited towards the organized militia. Surely some citizen or group of citizens would have brought action against the federal and state governments for disregarding the militia and depriving the citizens this "right". Can you point to one instance of this right being claimed and argued to compel the federal and state governments to fulfill their constitutional militia obligations?
The actual situation of being enrolled in the militia alters the status of the citizen; when one is called up some circumstances change. Being in actual service works to roll back rights; a private citizen's 5th Amendment rights are not extended to a militia member. If one commits a crime when an enrolled militia member in time of danger, the UCMJ is the applicable justice system. Are you claiming a right to be court martialed?
The whole text is about that, read it.
I prefer to follow the foundational constitutional principle that the right to keep and bear arms is not granted, created, given or otherwise established by the 2nd Amendment thus it does not in any manner depend on the Constitution for its existence. Trying to "interpret" the 2nd Amendment's words to see what it "allows" citizens to do (or own), is illegitimate.
SCOTUS has been affirming this principle for going on over 140 years:
- "The right . . . of "bearing arms for a lawful purpose" . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, . . ." (Cruikshank, 1876)
" . . . the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, . . ." (Presser, 1886)
"the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .” (Heller, 2008)
This principle also means that the right to arms can not be argued to have any militia conditioning or qualification placed on it. The right can't in any manner depend on something (like the militia structure that cl. 15 & 16 sets-out) that is itself, entirely, completely dependent on the Constitution for
its existence.
Also, they made the "unorganized militia" in the Dick Act of 1903, because they knew if they made the National Guard, that individuals could demand to be in it, reducing the effectiveness of the militia. So they "unorganized militia" was a way of saying "you have your right to be in the militia, see you're already in it, so stop complaining" while keeping them away from the actual effective militia.
In 24 years of debating gun rights on-line, I thought I saw it all.
The Dick Act put the final nail in the coffin of the §8, cl. 15 & 16 militia. It also answered unequivocally any question . . . that there are no "militia rights" for anyone (states or citizens) to claim.
Problem with your argument is that the Founding Fathers protected the right to be in the militia.
The reason being that they wanted to protect the Constitution by protecting the militia.
They protected the right to keep arms so there would be a ready supply of arms. They protected the right to bear arms so there would be a ready supply of personnel to use those weapons.
"Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."
Mr Gerry said this quote above. The clause he was referring to was "but no person religiously scrupulous shall be compelled to bear arms."
So, the govt being able to prevent people from bearing arms would give the people in power the opportunity to destroy the Constitution. HOW? By stopping them walking around with guns on a daily basis? Er.... no.
Because the next thing he says is "What, sir, is the use of a militia?"
"Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
When talking about "bear arms" they were taking about PROTECTING THE MILITIA by protecting individuals to "render military service".
It's all there.
You're twisting things.
There is not right to FORM a militia. There is a right to be in the militia as stated in Article 1 Section 8.
The Militia Act of 1792 was just that, an ACT of CONGRESS. Meaning it's not something required by the Constitution.
You have Constitutional law, and then you have normal law. Two different things. Don't pretend that because in 1792 they made a law for something, that this was a requirement of the Constitution. In fact, if they had to make a law about it, it clearly WAS NOT in the Constitution.
I see that you say the "right to bear arms has no relationship with the militia duty or service", but I get the feeling you don't understand this.
You don't need to be in the militia to be able to keep guns. That would defeat the whole point of the 2A which was to have a ready supply of guns outside of federal control and to have a ready supply of personnel outside of federal control.
You didn't need to be in the militia to have the right. EVERYONE had the right. However the right was to be in the militia. So those NOT IN THE MILITIA could JOIN THE MILITIA.
Imagine saying "You can only join the militia if you're already in the militia", er..... you'd have to be a pretty ******* stupid bunch of Founding Fathers to protect something like this.
No, you clearly don't understand what Presser said.
There is no right to join up together with your mates and be a pretend militia. The right is to be in THE militia, not in A militia. Your quoting of Presser doesn't seem to do anything for your argument at all. I'm not really sure what you want to say, I just know you're wrong.
"Now you are changing your argument from saying the people have a right to make a militia"
No, I'm not. I never said people have a right to make a militia.
"I prefer to follow the foundational constitutional principle that the right to keep and bear arms is not granted, created, given or otherwise established by the 2nd Amendment thus it does not in any manner depend on the Constitution for its existence. Trying to "interpret" the 2nd Amendment's words to see what it "allows" citizens to do (or own), is illegitimate."
It doesn't matter whether the right is considered to exist before or not. If it's protected by the Constitution then it's protected. If the US govt doesn't recognize something, you can shout as much as you like.
Like my right to murder. I prefer to follow the foundational constitutional principle that the right to murder is not granted, created, given or otherwise established.
Do you think they're going to listen?
In 24 years of debating online, you're still making up arguments for me.
I'm sorry you've spent 24 years debating on line with people who have no clue. But it's just changed.
Yes, the Dick Act put the final nail in the coffin of the militia. Why?
Why did they make the Dick Act? Why did they make the "unorganized militia"?
I've told you why. And you've just come back at me with nothing. As if they just decided "hey, I know, let's make the unorganized militia because it's my birthday tomorrow".
Oh, please. They did it for A REASON.
