Well regulated militia

[Open Bolt]

and, unfortunately,. it means that they consider that the government can infringe if there's a government interest. Since the primary interests of government are self-preservation and self-expansion. There's no thing that, by that standard, the government cannot do.

That's not what "government interest" means here though.

If the state can establish that a regulation would actually save a lot of lives, that would pass muster as being a legitimate state interest.

Gun regulations that cannot be established as saving a lot of lives on the other hand would be unlikely to pass muster.

So laws against pistol grips or flash suppressors will be out. There is no way that such laws save any lives.

The same also for New Jersey's law against hollow point ammo. And the various laws against .50 caliber guns. Those laws do not plausibly save any lives.

Laws against machine guns though will probably stand. People can make a credible case that machine guns can do a lot of damage in the hands of a bad guy.

 

[Open Bolt]

Obviously, there are rational conditions on any "right".

The problem is, the left is not asking for rational conditions. They just want to violate people's rights.

There is no rational reason for outlawing pistol grips or flash suppressors.

 

[Open Bolt]

The bill of rights was written to insure individuals had their rights protected. The government doesn't have a second amendment right.

I think that if a state government wanted to create a militia, and the feds did not allow it, that state government would have a strong case in court.

 

[bigrebnc1775]

I think that if a state government wanted to create a militia, and the feds did not allow it, that state government would have a strong case in court.

If a state government wanted to start a militia they could but it's members would have to supply their own firearms.

 

[bigrebnc1775]

Obviously, there are rational conditions on any "right".

Like showing a photo ID to vote?

 

[there4eyeM]

The problem is, the left is not asking for rational conditions. They just want to violate people's rights.

There is no rational reason for outlawing pistol grips or flash suppressors.

What/who the "left" is remains undefined, just as the "right". Some of us reject such labels for ourselves. We prefer wisdom to ideology.

 

[Abatis]

I don't know about that. If a state government wanted to create a militia and the federal government did not allow it, I think that state government would have a case to sue the feds over the Second Amendment.

During Reconstruction, Congress completely disbanded the militias of some southern states. Of course in 1903, Congress completely absorbed the state militias into the federal Army, in 1933 demanded duel enlistment and in 1952 finally robbed the states and their governors their authority over the federalized "state" guards . . . No state sued this overreach of federal power until 1990, the federal government was sued by a governor, fighting the deployment of "his" state guard overseas for training, Perpich v. DOD, 496 U.S. 334 (1990).

As had been done every previous time SCOTUS ruled on "militia" disputes, it said federal powers are supreme and preemptive of claims by the states.

Today, there are no powers and certainly no "rights" to be claimed by any entity, federal, state or "the people" (citizens) to call-up, organize, train or deploy citizens as militia.

States posses a power granted to them by Congress to form and deploy "State Defensive Forces" but those bodies (like the National Guard) are created under the Constitution's authority of clause 12 (To raise and support Armies) and Title 32 of the US Code which creted the National Guard, which means the supposed autonomy and exclusion of SDF's from federal call-up is in question. Neither the National Guard or SDF's are militia, at least how the Constitution contemplated and codified "militia".

 

[Open Bolt]

Neither the National Guard or SDF's are militia, at least how the Constitution contemplated and codified "militia".

It would be interesting to see what would happen if a state sued for their right to form a militia that was based entirely on the rules of the Constitution.

No state will do so, since maintaining a militia without federal support would be pretty expensive, but it would be an interesting case.

If a state government wanted to start a militia they could but it's members would have to supply their own firearms.

If a state government formed a militia, the militiamen would have the right to acquire their own military weapons, but I think the state would also be allowed to buy weapons for its militia if it wanted to do so.

What/who the "left" is remains undefined, just as the "right". Some of us reject such labels for ourselves. We prefer wisdom to ideology.

Left refers to progressives. Right refers to conservatives.

 

[bigrebnc1775]

It would be interesting to see what would happen if a state sued for their right to form a militia that was based entirely on the rules of the Constitution.

No state will do so, since maintaining a militia without federal support would be pretty expensive, but it would be an interesting case.



If a state government formed a militia, the militiamen would have the right to acquire their own military weapons, but I think the state would also be allowed to buy weapons for its militia if it wanted to do so.



Left refers to progressives. Right refers to conservatives.

According to supreme Court precedence, and militia acts the militia members were expected to provide their own weapon.

 

[Abatis]

It would be interesting to see what would happen if a state sued for their right to form a militia that was based entirely on the rules of the Constitution.

The lawsuit would be dismissed at the first hearing; states never possessed any autonomous powers to call-up, organize and deploy citizens as militia.

From Article I, Section 8, clauses 15 & 16, Congress alone possesses powers of militia organization, arming, and discipline and to write the training regimen implemented by the states. There are limited powers reserved in the states:

Article I, Section 8: "Congress shall have the power;​

​

"cl. 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;​

​

cl. 16: 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;"​

Preemption doctrine says that wherever Congress acts over a certain interest, no authority remains for states to exert power on the same interest.

Congress owned all operational militia powers before the Dick Act and since the Congress in the Dick Act completely rescinded the Militia Acts of 1792/95, there are no residual operational militia powers for any entity to exercise, to call-up, organize and deploy citizens as militia.

As a sidebar, private citizens (the people) never possessed and do not now possess any power (or right) to organize themselves as militia and drill or exercise as an armed group. See Presser v Illinois and DC v Heller, affirming Presser.

 

[Open Bolt]

The lawsuit would be dismissed at the first hearing; states never possessed any autonomous powers to call-up, organize and deploy citizens as militia.

State governments have the right to call up and deploy their militia within their own state.

From Article I, Section 8, clauses 15 & 16, Congress alone possesses powers of militia organization, arming, and discipline and to write the training regimen implemented by the states. There are limited powers reserved in the states:

Article I, Section 8: "Congress shall have the power;​

"cl. 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;​

cl. 16: 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;"​

The Second Amendment modifies this and ensures that the authority to arm the militia does not lie solely with the feds.

Now, anyone can arm the militia. The feds, the states, militiamen themselves, concerned citizens who want to donate to the cause, etc.

The above text also gives the states the authority to appoint officers and to train the militia.

As a sidebar, private citizens (the people) never possessed and do not now possess any power (or right) to organize themselves as militia and drill or exercise as an armed group. See Presser v Illinois and DC v Heller, affirming Presser.

Freedom of association would seem to apply. Referring to themselves as militia would fall under freedom of speech.

 

[miketx]

Well regulated militia can be created on the basis of the police. The US police are subordinate to the state and independent of the federals. Armed male can be trained by the police, and participate in police operations as an auxiliary force. This is the shortest way to create a militia.
The constitution says that the creation of a militia is necessary.
View attachment 594923

You sound like a real commie faggot.

 

[Abatis]

State governments have the right to call up and deploy their militia within their own state.

If that was true, why was the creation of State Defensive Forces necessary?

If states possessed this mystical, untethered to the Constitution power to organize citizens as militia, after Congress extinguished the cl. 16 constitutional state militias the states could have just shifted to your imagined power and said no thanks to Congress' contrived fake militia, the cl. 12, SDF's.

The Second Amendment modifies this and ensures that the authority to arm the militia does not lie solely with the feds.

No, it doesn't . . .

Now, anyone can arm the militia. The feds, the states, militiamen themselves, concerned citizens who want to donate to the cause, etc

No, they can't . . .

The above text also gives the states the authority to appoint officers and to train the militia.

Appoint officers in a militia only Congress can organize and train members only following the regimen Congress establishes.

Freedom of association would seem to apply. Referring to themselves as militia would fall under freedom of speech.

I don't assign any value to "would seem" statements; they are pretty much useless unless we are admitting we are just sharing our feelings.

When I say, "private citizens (the people) never possessed and do not now possess any power (or right) to organize themselves as militia and drill or exercise as an armed group", I say it because the law supports that statement.

When I write, "See Presser v Illinois and DC v Heller, affirming Presser" that is a citation to where the support for my statement is found in law.

I will say my feeling is it would seem you can't be bothered to examine the sources I said were vital to your understanding this particular question . . . So I will quote them here.

Presser v. Illinois, 116 U.S. 252 (1886)​

"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.​

​

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."​

District of Columbia v. Heller, 554 U.S. 570 (2008)​

"Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups."​

 

[Open Bolt]

If that was true, why was the creation of State Defensive Forces necessary?

Provisions for the creation of State Guards were necessary because state governments have the right to call up and deploy their militia in their own state.

Since the National Guard does not satisfy the states' militia needs, if provisions had not been made to let the states create their own militia, the states would have been able to sue and have the Dick Act overturned.

State Guards, if armed, can count as the militia, so allowing the states to create such forces means that the states won't have a grievance to sue the feds over.

If states possessed this mystical, untethered to the Constitution power to organize citizens as militia, after Congress extinguished the cl. 16 constitutional state militias the states could have just shifted to your imagined power and said no thanks to Congress' contrived fake militia, the cl. 12, SDF's.

Why would they say no thanks when the State Guards, if armed, can count as militia?

No, it doesn't . . .

That is incorrect. What became the Second Amendment was proposed to address Patrick Henry's concerns expressed at the Virginia Ratifying Convention. That shows clear intention that the Second Amendment is meant to remedy those specific concerns. And his specific concerns were that Congress' power to arm the militia would be abused to prevent the militia from being armed.

Patrick Henry:
"Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them."

"Let me here call your attention to that part which gives the Congress power “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.” By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither–this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory."

Virginia Ratifying Convention

teachingamericanhistory.org

No, they can't . . .

The Second Amendment says that they can. It was created to remedy the concerns that Patrick Henry expressed at the Virginia Ratifying Convention.

Appoint officers in a militia only Congress can organize and train members only following the regimen Congress establishes.

I think that if Congress denied states the ability to have a militia, the courts would step in.

Congress seems to agree with my assessment, because they allowed states to create their own State Guards, which can count as militia if they are armed.

I don't assign any value to "would seem" statements; they are pretty much useless unless we are admitting we are just sharing our feelings.

When I say, "private citizens (the people) never possessed and do not now possess any power (or right) to organize themselves as militia and drill or exercise as an armed group", I say it because the law supports that statement.

When I write, "See Presser v Illinois and DC v Heller, affirming Presser" that is a citation to where the support for my statement is found in law.

I will say my feeling is it would seem you can't be bothered to examine the sources I said were vital to your understanding this particular question . . . So I will quote them here.

Presser v. Illinois, 116 U.S. 252 (1886)​

"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.​

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."​

District of Columbia v. Heller, 554 U.S. 570 (2008)​

"Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups."​

Those laws sound unconstitutional to me. I see violations of both freedom of association and freedom of speech.

I'm not saying these private groups will have any real authority to act as militia. But simply proclaiming themselves to be militia is harmless enough.

 

[Abatis]

Provisions for the creation of State Guards were necessary because state governments have the right to call up and deploy their militia in their own state.

You keep calling this a "right" but nothing can happen with regard to organized militia without law authorizing action. There are no militia "rights" for anyone under the Constitution.

Your phrasing there "seems" to recognize this, you keep saying "right" but then you refer to a provision in law creating and giving what you say is a right . . . that makes no sense.

Since the National Guard does not satisfy the states' militia needs, if provisions had not been made to let the states create their own militia, the states would have been able to sue and have the Dick Act overturned.

State Guards, if armed, can count as the militia, so allowing the states to create such forces means that the states won't have a grievance to sue the feds over.

If your idea is correct, IF the states' possessed a 2ndA right to organize and maintain militias, I would agree, the states certainly did have good cause to sue.

I sit here spinning in a bad case of deja vu because that statement very familiar to me . . . It has been one of my arguments against anti-gunners arguing the "militia right" interpretation of the 2ndA for years and years!

My argument, directed to those claiming the 2ndA protects the states from federal intrusion of their "militia rights" was that the Dick Act was grounds for states to sue the feds. Congress removing their claimed powers/rights to organize, maintain and direct their militias, would have been a violation of the 2ndA IF the 2ndA protected state militia interests!

Of course the 2ndA never protected state interests which is why no state sued in 1903-1916 as the Article I, §8, cl. 15 & 16 militia was completely extinguished.

Why would they say no thanks when the State Guards, if armed, can count as militia?

Seriously? If the states really "have the right" independent of federal law (or from the 2ndA) to organize, maintain and deploy a "real" (cl's 15 & 16) citizen militia, they wouldn't need or want the federal hand-me-down SDF's, authorized by §8, cl.12 and created by Title 32, (under the the US Army) pseudo-militia given to them by Congress.

And SDF'a don't count as militia . . . This reminds me of Lincoln's famous question about the dog's tail:

How many legs does a dog have if you call a tail a leg?​

Four.​

Saying that a tail is a leg doesn’t make it a leg.​

That is incorrect.

And yet it is correct. Militia powers are only conferred in Art I, §8, cl's 15 & 16 and Art II, §2; the 2ndA has never been inspected to inform or held to direct any militia powers.

The Second Amendment says that they can.

No, it doesn't . . . The only thing you are doing repeating these fantasies is proving the old adage, anything is possible when you don't know what you are talking about.

I think that if Congress denied states the ability to have a militia, the courts would step in.

And yet when it has happened we see no actions being brought.

Congress seems to agree with my assessment, because they allowed states to create their own State Guards, which can count as militia if they are armed.

So you agree that SDF's are special carve-outs in federal law that Congress created to give states a runner-up prize because states could never organize and maintain cl. 15 & 16 militias (and because of Congress and the Dick Act, no longer exist) and that states were forbidden by the Constitution, (Art I, §8, cl. 10), to keep troops without the consent of Congress . . . OR "allowed" by Congress, as you say, by making a law, under the authority of cl. 12, Congress' power "To raise and support Armies" and writing said law creating SDF's under US Code, Title 32 which created the National Guard of the US Army.

BUT IT"S A RIIIGGHT!!!

Those laws sound unconstitutional to me. I see violations of both freedom of association and freedom of speech.

And yet upheld, even addressing association, multiple times by SCOTUS for going on 136 years, now with zero chance of being revisited . . .

I'm not saying these private groups will have any real authority to act as militia. But simply proclaiming themselves to be militia is harmless enough.

The actions prohibited were for bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.

 

[BothWings]

Nowhere does it say that the people's right to keep and bear arms is implicitly DEPENDENT on an organized militia to be justified. The people are to be already armed should it be necessary to call them into a militia. It doesn't say or imply that the government will arm us when they feel like it. It implies that we the people, bearing arms already, can be called upon to support the military if necessary.

Keyword: KEEP. As in not simply be issued weapons at someone else's convenience. This is very obvious but anti-gun advocates are trying to twist words and confuse people into thinking they need permission to KEEP arms. The Constitution guarantees the right to KEEP them. Permission granted from Day 1.

 

[ThunderKiss1965]

It has a subordination to the federals, it is not provided for in the constitution. Most likely they will side with the feds in the event of a conflict.

They probably won't. I doubt the people in the National Guard will be willing to fire on their friends and neighbors. I don't think you would find many active duty that would do it either.

 

[Open Bolt]

Seriously? If the states really "have the right" independent of federal law (or from the 2ndA) to organize, maintain and deploy a "real" (cl's 15 & 16) citizen militia, they wouldn't need or want the federal hand-me-down SDF's, authorized by §8, cl.12 and created by Title 32, (under the the US Army) pseudo-militia given to them by Congress.

And SDF'a don't count as militia . . . This reminds me of Lincoln's famous question about the dog's tail:

How many legs does a dog have if you call a tail a leg?​

Four.​

Saying that a tail is a leg doesn’t make it a leg.​

Why do you call the State Defense Forces a pseudo-militia?

How are they not a "real" (cl's 15 & 16) citizen militia?

My answer to the rest of your post depends on whether I accept the the State Defense Forces are not real militia, so I'll go back and answer the rest once this part is settled.

 

[Stryder50]

This is clearly an unconstitutional decision. Competence must be questioned.

Only competence issue is your failure to understand our Constitution.

 

[Stryder50]

What/who the "left" is remains undefined, just as the "right". Some of us reject such labels for ourselves. We prefer wisdom to ideology.

However it is basic human nature to categorize others based upon their words and actions.
Like it or not, want it or not;
... all are categorized, placed into a niche/slot.

In USA terms, "The Left" is those whom are on the psuedo-liberal, pro-socialism/communism ideological divide, mostly being Democrats or more extreme such as BLM, AntiFa, etc.

Unfortunately, ideology defines scale and scope of "wisdom" and such varies based upon position on the political divide.