i.e. if it is NOT an arm that someone can "Bear" it is NOT protected by the Second Amendment. Thus ANY company or battalion level weapon could be banned under Scalia's view of the Second Amendment, i.e. no mortars, no machine guns, no cannon, no heavy anti-tank weapons (Scalia has indicated he would support rocket propelled grenades (RPG) and other small rockets but not anything bigger).
I believe the limit is higher, govern by the rules as to weapons of 1792, i.e. people were strictly held liable for any gunpowder that exploded (no matter who was at fault, i.e. Strict Liability) AND any bullets you fired, you were responsible for. If you fired your gun and someone was killed, even if it was the VICTIM's Fault the shooter was held liable. Thus nuclear weapons can be banned under the Second, unless you can store it is a place where its radioactive core will NOT cause harm to anyone else (i.e. in a deep bomb proof shelter). If you can NOT store it to that level you can NOT have it (a side comment, if you have the money to buy a nuclear device, keep it active AND store in properly, the additional cost to get a private bill through Congress to permit you to have the nuclear device would be a very small additional expense, thus the Second Amendment will NEVER come into play in regards to Nuclear, Biological or Chemical weapons).
Today, you can own a supersonic plane, but you can NOT fly it. The reason being to fly it could cause problems for others given the effect of sonic booms. The Government is willing to assume that responsibility for its own planes, but not for planes owned by Civilians.
Back to Scalia, In my opinion, Scalia would reject my position that the Second Amendment would also cover the OWNERSHIP of heavy weapons, artillery, Mortars, Tanks, Heavy Machine Guns, etc. Scalia will point out such weapons could not be "bared" and thus NOT covered by the Second. Scalia fear these weapons in the hands of people for they make any fight between regular forces and Militia a lot more equal. On the other hand Scalia thinks nothing of expanding the right to own a handgun, for it is one of the most useless weapons in any combat situation (If I was organizing a Militia pick up company, and someone showed up with a Pistol, I would tell him or her to go back and get a Rifle, Shotgun or a long hand spade instead, these three items have had and will have more effect in combat then a pistol, in combat pistols are carried by people whose job prevents them from being able to shoot 360 degree around them, i.e. a tank driver, whose job is to drive the tank NOT to shoot a rifle, a machine gunner whose job is to operate a machine gun in a certain direction, but once so situated hard to move quickly if attacked from another direction).
In the past, when we have had massive labor revolts, it was RIFLES that the Strikers resorted to NOT pistols (the General Strike of 1877, the Homestead Strike of 1892 and the West Virginia Coal War of 1921, just to mention three). Today, in addition to rifles you would need access to Mortars, Machine Guns, and heavy anti-tank weapons. Scalia would deny people access to such weapons, while giving them access to pistols and light weight rockets in addition to Rifles and shotguns (and in a time of crisis I can see Scalia saying the need for self protection is limited to pistols, so even rifles and shotguns can be banned).
On DU2, I did some extensive papers with cites on them in this matter but much of the reference I used are no longer active web cites, but I repeat my comments anyway:
I wrote this in 2004:
Congress wrote the Militia Act right after passing the Second Amendment. You can use such acts to show WHAT congress intended when it passed parts of the US Constitution (For example when someone challenged HOW the Federal Courts were set up, the US Supreme Court looked not only at the Constitutional Provisions setting up the Federal Courts but the First Judicial Act. The Court used the First Judicial Act to determine WHAT Congress meant when it adopted parts of the Constitution. We can do the same with the Militia Act of 1792).
In Militia Act of 1792 Congress did address WHAT weapons the Militia was to have, the Act lists only Three:
1. .69 caliber Smooth bore musket (the Assault Rifle of 1792).
2. A "Rifle" if the company was a Rifle Company.
3. A Hanger (A sword for the commander of the Company, it was both a symbol of Rank and a method of giving Visual commands to the troops).
As late as WWI, you just had Modernized versions of the above, for Example the Bolt Action Rifle of about 1900 had replaced both the Musket and the Rifle of 1792. Now some armies still carried swords but most company commandeers had switched to pistols. WWI changed the Infantry squad, platoon, company and Battalion, drastically, increasing the types of weapons used at all levels of combat.
Do to these changes today's Infantry have the use of a wide number of weapons. Given that Militia has to use the weapons of Infantry, ALL INFANTRY weapons are thus Militia weapons.
These Military weapons include the Following
1. M16 or other assault rifle (Squad Level Weapon)
2. M249 Squad Automatic Weapon (SAW)(Squad Level Weapon)
3. The FN MAG general purpose Machine Gun.(Platoon or Company Level Weapon)
4. 60mm Mortars (Company Level Weapon)
5. 81mm Mortars (at Battalion Level)
6. .50 Caliber —2 Machine Gun (Battalion Level Weapon)
7. TOW Anti-tank Missile (Battalion Level Weapon)
9. Dragon (Or its replacement) anti-tank weapon
10. Stinger Anti-Aircraft Missile (Battalion Level Weapon)
11. —203 Grenade Launcher (Squad Level Weapon).
12. AT-4 Anti-Tank Weapon (Replaced the LAW of Vietnam war era, issued to infantry squad members).
If we look at the Militia Act of 1792 we notice the absence of PISTOLS (Except for Section 4 dealing with Calvary). Thus an argument can be made that PISTOLS can be banned on the grounds Congress prefer people to have Rifles, except for Commanders of Units (Replacing the Hangers mentioned in Section 1 of the Act) AND speciality forces that must use a pistol for they can not use a rifle (like the old Calvary mentioned in Section 4).
Another way to look is at the Federalist Papers, through the Papers address the Constitution BEFORE the Adoption of the Bill of Rights, Hamilton in Federalist No 29 did address HOW to form the Militia.
For the Federalist papers:
http://www.law.ou.edu/hist/federalist /
The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm
10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html
One last comment, just because you have the "Right" to a weapon does not mean you can not be punished for its mis-use. During 1792, the storage of Gun Powder was viewed as an inherent danger. As an inherent danger if Gun powder exploded, the owner of the Powder was held to strick liability for any damage that occurred. i.e. it was NOT a Defense that the Gun powder exploded do to no fault of the owner of the powder, he had to pay even if a third party caused the explosion (Except if the act to explode was an DELIBERATE act of the third party AND the owner did everything reasonable to prevent such explosions). The Second Amendment did NOT change this rule of law. Furthermore if you used your firearm and someone was harmed you were held liable for that harm (The Second Amendment did not change that rule).
Furthermore one of the reason for the language of the Second was to preserve Congress's right to set standards as to what weapons the militia is to have. Thus Congress can banned Sub-machine Guns because it wants the Militia to have M16s. I question any ban on Military Weapons in favor or less effective weapons, but as long as Congress can claim the ban is to ease re-supply of the Militia if called into actual service, such a ban could be valid. Congress can not just say No weapons for the Militia, but Congress can say WHAT weapons the Militia is to have. Congress thus can rule some weapons "Non-militia" and ban them and such a ban would be valid. This can be the justification for the existing Automatic Weapons ban, congress prefer the Militia to have semi-automatic weapons instead (To ease excess use of ammunition in combat).
My point here is that while the Second Amendment is an individual right, it si a right that Congress can restrict if such restrictions ENHANCES the militia. Congress is also the body to determine what ENHANCES the Militia. Thus Various types of Gun Controls can be valid, provided the Militia can still arm itself is a reasonable manner. The Issue is thus what is a reasonable manner in today's urban environment? That is the debate as to the Second today, and will be for many decades to come.
For the Federalist papers:
http://www.law.ou.edu/hist/federalist /
The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm
10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html
Patrick Henry and the Militia and the Constitution
http://www.constitution.org/rc/rat_va_13.htm#henry-09
http://www.constitution.org/rc/rat_va_13.htm#henry-10
Speeches of Patrick Henry and the Constitution (Good site for Henry’s comments, but remember the site is a right wing absolutist property right site so be careful):
http://www.constitution.org/afp/phenry00.htm
But only when the Federal Government and the States do not AND there is a need for one. This goes back to the history of the Militia in the 1700s. I have been working on a paper regarding the Militia and Gun Control and while it is NOT finished what I have doen is re-printed below:
Some basic concepts behind the Second Amendment.
To truly understand the Second you must look at the time period it was written AND WHY IT WAS PUT INTO THE BILL OF RIGHTS. The first step in this process is to look at what Alexander Hamilton wrote in Federalist No 29. Hamilton writes in Federalist 29 that he would prefer two different classes of Militia. The first (and preferred by Hamilton), the one Hamilton calls a "select corps" of paid Militiamen (much like our present National Guard) and would have used it like we use the present day Army Reserve and National Guard.
As to the rest of the Militia (now referred to as the "reserve Militia"
, Hamilton put a lower value on it but even to Hamilton it had some value:
"Little more can reasonably be aimed at, with 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"
Thus he accepted that the Militia (other than select Militia he wanted) would rarely be used in combat roles (except in extreme emergencies) but instead would be used to secure roadways, dig entrenchments (which they did at Yorktown, while the Regular Troops trained).
The Militia would also clean up the battlefield after the battle (as the Pennsylvania Militia did after Gettysburg, and this can last for months, as it did after Gettysburg). By assuming these duties, the Militia relieved the regular army of such duties.
A recent examples of this was the Mississippi River Floods of the early 1990s, when the local populations came out to work on the levies. This was the Militia coming into action. These volunteers were not called “Militia” by the media, nor the politicians, nor the military (and not even by the participates themselves). The same with the personal on the plane that crashed in Somerset County Pennsylvania on 9-11. The personal "activated" themselves and went into combat (with nothing but their bare hands as "arms" . An enemy had appeared and the Militia mobilized to fight them and DID defeat these enemies (and died in the process, but further loss of life was avoided).
Could regular troops have done it better if they had been on the Plane? I hope so (they have superior training), but as Hamilton points out in Federalist 29, training EVERYONE for such a contingency would be a waste of most people’s time and money. It is better to give the Militia minimal training (and make sure they have their equipment) and hope they do an adequate job than to waste the time and money to train every Militiamen to be as good as a regular soldier. 99% of the Militiamen would never use the training and thus would be a waste of time and money.
On the other hand, when needed, getting the Militia together with needed equipment. Such equipment can be arms, or shovels or buckets depending on the threat but that the “Militia” must have some “Tools” to use to defeat the threat is self-evident (i.e. you can not fill sandbags without a shovel, or fight without a weapon). Thus it is more important that the Militia have equipment than any proper training for with equipment you can than form the Militia into something that can be used. Once formed than and only than can training begin (Which can be as simple as how to fill a sandbag to re-enforce a river levy).
Thus the big issue is getting the Militia members togther, for once togther you can start training (and planing) for what may be needed (which may be anything from anti-tank defense to Anti-flood defense, or even re-taking the plane the militia are on). Your plans will depend on what you have in troops (and their equipment). The better equipped the Militia are the better, but any equipment is better than no equipment.
One last point, The Federalist Papers pre-date the Bill of Rights (but post-date the Original Constitution). Thus Hamilton's argument is in defense of the Constitution without a bill of rights (including the second). I merely bring it up to show you how at least one writer of the time believe how the Militia should be organized (and also points out his plan was rejected by Congress when Congress did organized the Militia in 1792).
For the Federalist papers:
http://www.law.ou.edu/hist/federalist /
The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm
10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html
Patrick Henry and the Militia and the Constitution
http://www.constitution.org/rc/rat_va_13.htm#henry-09
http://www.constitution.org/rc/rat_va_13.htm#henry-10
Speeches of Patrick Henry and the Constitution (Good site for Henry’s comments, but remember the site is a right wing absolutist property right site so be careful):
http://www.constitution.org/afp/phenry00.htm
Please note one of the chief objections to the original constitution is that it gave SOLE power to organize the Militia to the Federal Government (See Article1, Section 8, Clause 16 of the US Constitution). The fear was that the Federal Government would organize only part of the Militia (that was loyal to the Central Government as opposed to being loyal to the people) and that since the Federal Government had SOLE right to organize, the states and the people could not organize that part of the Militia not organized by the Federal Government. The wording of the Second Amendment was to address this problem (and to preserve the right of the Federal Government to organize the Militia). Thus the Second was worded BOTH to preserve the Obligation of the Federal Government to Organize the Militia AND the right of the People (and the states) to organize that part of the Militia the Federal Government did not (or refuse to) organize.
Thus under the Second, the Federal Government retains the right to organize the Militia (or whatever part it wants to organize). The States (and the People) retain the right to organize that part of the Militia NOT organized by the Federal Government. The simple fact is that the only way the States and the people could form themselves into Militia against wishes of the Federal Government would be if the People had access to arms. Thus the Right to Bare Arms is the right reserved to the people so that the States (and the People themselves independent of the State) can form a Militia if it is needed and the Federal Government refuses to organize the Militia.
Do not think this was academic, Pennsylvania was the only Colony without a Militia Law from its founding in 1689 till 1759. From William Penn’s treaty with the local Indians till the Long Walk of 1737 no Militia was needed, you had peace in Pennsylvania and the Indians were friendly. In 1737 the decedents of William Penn decided to finally take the last of the Land given to William Penn by the Indians. The Treaty had said Penn’s land grant extended one day walk from the junction of Delaware and Lehigh Rivers. The Indians believed this was for a normal walk at a normal pace of about 20 miles.
The Penns wanted more land than just 20 miles so their imported five "speed walkers" (those person’s who race but never break into a running stride, but stay in a walking stride a type of race still run in certain locations). The Penns than told the Indians that thee men will pace the “one day walk”. The Men started at Daybreak on June 20th (The longest day of the year) to give them the maximum time walking). The Indians claimed they had to run to keep up, but the Penns gained about 60 miles worth of land to sell instead of the 20 miles the Indians thought their had agreed to. The Delawares and Shawnees complained, but the Iroquois accepted the results of this thief, and is referred to as the "long walk". Since the land was technically Iroquoian, the Delaware and Shawnee had to accept the decision of the Iroquois (In the inner- tribal wars of the 1600s the Delaware had been defeated by the Iroquois and their land became Iroquoian land, while the Shawnee had been permitted to live on the same land by the Iroquois for their had no land of their own since their left Cuba in the 1500s). http://www.tolatsga.org/dela.html
What is all of this leading up to? While when the French Declared War on England in 1745, both the Delaware and Shawnees were easy for the French to recruit to attack the Settlements on the Pennsylvania Frontier. Both tribes attacked the Settlements not only in the 1745 war, but the 1754-1763 French and Indian War. Pennsylvania was controlled by Quakers who, while wiling to sell the lands their had stolen from the Indians to the people on the Frontier, did not want to raise any form of Army even a Militia army. Thus the Frontier was left on its own. Ben Franklin realized this was a problem, but could not convince the Colonial Assembly to even build a fort to protect Philadelphia from a French Naval Attack (Given the Hurricane Season in the Caribbean, it was a policy of both Britain and France to keep their fleet out of the Caribbean from July through October. This reduced the chance that the Fleet may be destroyed by a hurricane and also reduced the losses of life do to Yellow Fever. Thus the French Fleet went by ALL of the American Colonies at least twice a year, either time the Fleet could just move in and take any unprotected city, such as Philadelphia. Even with this threat, the Assembly refused to fund any military preparations. So Ben Franklin organized the people of Philadelphia into an "Association" to build a fort on Governors Island just south of Philadelphia. The purpose of the Fort was NOT to stop the French Fleet but to give warning if the fleet was coming to Philadelphia and to delay the Fleet long enough to vacate Philadelphia before the French fleet could take Philadelphia.
After Ben Franklin did the above in 1745, he urged the people of the frontier to from similar “Associations” to protect themselves against the Indian attacks. The frontiersman did form themselves and stayed that way INDEPENDENT OF THE GOVERNMENT OF PENNSYLVANIA till 1759, when Pennsylvania had a mini-revolution (by election) that kicked out the Quakers and put in people who had formed these "Associations". The new General Assembly than took these organizations over and form the First Pennsylvania Militia (And this would not be the first time the Militia would be the heart of a move to democracy, the democratic movement of the Post-Revolutionary Period also came out of the Militia as did the Whiskey Rebellion of 1792-1794) .
The point of the above was the people of the Colonies were familiar with the possibility of a Government NOT forming the Militia even when such formation was needed. Much of the opposition to the Constitution came out of Pennsylvania. I live in Western Pennsylvania and even today some people are proud that 26 of 27 delegates to the State Convention to ratify the US Constitution voted against it, and the fact we burned the house of the one person who voted for the Constitution during the subsequent Whiskey Rebellion.
This opposition to the Constitution without a bill of Rights reflected that it had only been 40 years earlier when the Government of Pennsylvania had refused to form the Militia when it was needed. Thus Pennsylvanians (and residents of other states) knew it was possible that a government may NOT organize the Militia when the Militia was needed. Thus the wording of the Second amendment was to reflect NOT only that the States could form the Militia but the people could also form the Militia their had done in Pennsylvania from 1745 till 1759.
Miller and the Court Cases
Miller is the 1939 Case involving the Federal Firearms Act. It is an interesting case. If you read it please note the procedure and standard of review the Supreme Court was using in that case.
When Miller was arrested for having a shotgun with a barrel less than 18 inches (and thus banned under the Federal Firearm Act) he made the contention at his arraignment that the weapon was a militia weapon and thus protected under the Second, THE TRIAL COURT ACCEPTED THIS ARGUMENT AND DISMISSED THE CHARGE AGAINST MILER.
Now, since this was a dismissal PRIOR to any trial, the Rule of Law in such a dismissal is the Judge MUST accept all of the facts in favor of the non-moving party (In the case of Miller the US Government) and rule that even if the Government proved all of its facts the government would still lose. The trial judge ruled that a shotgun with a barrel of less than 18 inches was a military usable weapon given that such weapon had ben used in WWI.
On Appeal from that type of dismissal, the same rule applies. i.e. all facts are held in the Government favor. In Miller the US Supreme Court ruled that the FACT that any particular gun had military usability and thus comes under the Second is a finding of fact reserved to a Jury and thus the Trial Judge erred in finding that the shotgun in question had military usability as a finding of law. The Supreme Court sent the case back to the trial Court with an order that the Trial Court to hold a hearing where a Jury was to decide if the Weapon was a military weapon. Only if the Jury ruled it to be a military weapon was the Judge to rule on the Application of the Second Amendment to the weapon.
In simple terms the Court ruled whether a weapon comes under the Second or not is a question of fact left to a jury NOT a question of Law reserve to A judge.
http://www.enterstageright.com/archive/articles/0801/08...
http://www.geocities.com/hollywood/academy/9884/bp_Mill...
http://caselaw.lp.findlaw.com/data/constitution/amendme... /
For the Miller case itself:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=...
CRIME AND FIREARMS
The above was on the CONSTITUTIONALITY of Gun Control NOT whether Gun Control would do any good at reducing crime (or otherwise make the Country Safer). On the point of reducing crime we need to look at WHAT weapon is being used in Crime. If you look at the 2001 FBI Crime Statistics available from the FBI Crime Statistics you will see table 2.10. It is an interesting table. Out of that table the following facts are reported for the year 2001:
13,752 people were murdered in 2001,
8719 by Firearms (63% of all Murders).
6790 were Murdered by handguns (49% of All Murders, 78% of all murder by Firearms)
389 by Rifles (2.8% of all Murders 4.5% of all Murders by Firearms)
497 by Shotguns (3.6% of all Murders, 5.7% of all Murders with Firearms)
985 by “Firearms type not stated”
All together 14% of all Murders are done with non-handgun firearms (which for this number includes not only Rifles and Shotguns, but also the “other” category and “Firearms Type Not Stated”)
1796 by Knives 13% of all Murders
925 By “Personal Weapons” i.e hands, Fists, feet etc 6.7% of all Murders
661 by “Blunt Instruments” Clubs, hammers etc. 4.8% of all Murders
152 by Strangulation 1.1% of all Murders
112 by Asphyxiation. 0.8% of all Murders
104 by Fire 0.7% of all Murders
Thus Knives, and “Personal Weapons” (i.e. hands, fists, feet,) are used more often to Murder people than are Rifles and/or Shotguns. Clubs, hammers and other “Blunt Instruments” exceed the number of people Killed by Rifles OR Shotguns. (Please note “Personal Weapons” only rose above the combined Shotgun and Rifle numbers of victim in 2000 and 2001, from 1997 through 1999 “Personal Weapons” were just slightly above the COMBINED numbers of people murdered by Shotguns and/or rifles).
Basically the weapon most used in Murder is a Pistol, followed by a Knife. Even if the “Other” and “Firearms type not stated” do not include any pistols (something I seriously doubt) all firearms other than pistols are used less often than are knives to kill people. Thus the weapon of choice for criminals is a pistol (followed by the knife).
That is about right, for both handguns and knives are both easy to conceal on a person’s body and thus a weapon that can be used without the victim having any time to defend (or even prepare) themselves. Shotguns and Rifles like Machine Guns and Rockets, are hard to conceal and thus rarely used in crime. This was true of automatic weapons even before such “Machine Guns” were outlawed in 1934. (Yes I Know Capone's gang used Thompson Sub Machine Guns and Bonnie and Clyde like their M1918 BAR, but most of those weapons were obtained from raiding local Police Stations not illegal or legal sales. Very few Machine Guns and Rockets have been used illegally, not because such weapons were NOT wanted by Criminals, there are just to hard to hide compared to Pistols and thus NOT usable by most criminals).
As one person told me years ago, when he sees a hunter with a Rifle, he knows the Hunter has the ability to kill him at any time, but unlike someone who had a pistol he knows that fact from the first time he sees the Hunter and has more than enough time to take pre-cautions. This is the reason pistols MUST be heavier regulated than other weapons. Given the Nature of the Second Amendment (as I explained above) such restrictions ON PISTOLS are perfectly acceptable under the Second.
While Rifles, Shotguns, and even Machine Guns and Rockets have much higher military usability than pistols, all of them are used way less in crimes than are Pistols and Knives. Thus if you believe in Crime Control, it would be better to regulate knives before you regulate Rifles and/or Shotguns. Knives are used in greater numbers. Furthermore given the numbers for people who use “Hands, Fists and Feet” as weapons (and these numbers EXCEED the numbers for Rifles or Shotguns, I just can NOT justify regulating such weapons.
THE USE OF FIREARMS
One last comment, while I believe ownership of such weapons can not be banned (except for pistols as I stated in a earlier thread) the USE of such weapons is NOT protected by the Second and the law has long set forth a strict liability rule if a weapon is used and someone is hurt. Any body's interpretation of the Second Amendment does not change that strict liability rule and to my knowledge no one is advocating abolishment of that rule.
Now strict liability does not extend to storage of a weapon (through some states have expanded the rule to cover inadequate storage) and thus if a weapon is stolen, you are no more liable for its misuse than if someone stole your car. The Second Amendment only address the right to own, NOT the right to abuse the right to own.
Right to Bear Arms Independent of the Second
Right now people who dislike the idea that Constitutional rights not mentioned in the Bill of Rights exists control the Supreme Court. Examples of such rights include the Right to Privacy and the Right to an abortion. Neither right is clearly stated in the Bill of Rights. Justices Rehnquist, Scalia and Thomas have all expressed opposition to such Constitutional Rights based on the premise that such Rights are NOT listed.
Thus if you get away from the Second Amendment (and the militia clause in the body of the Constitution) you are on very thin ice. Abortion and Privacy may be able to get five votes on the Supreme Court to be preserved, but will a "Right" to Bear Arms NOT based on the Second Amendment? While such a right may exist (and I have read the literature that clearly shows the right to bear arms did exist prior to the Bill of Rights), you have at least three votes against it (Rehnquist, Scalia and Thomas) based on the premise that if a right is not listed it is NOT a right (Scalia and Thomas I believe will vote for RKBA but only because the Second, not independent of the Second).
Given these three votes, their only need to pick up two more votes out of six to say no such right exist outside the Second. Two more votes out of the reminding six will not be hard to find given the compensation of the Supreme Court today.
That is why people prefer to base their rights on what is written in the Bill of Rights. It is harder for the Supreme Court to ignore.
One last comment, I always bring up PLESSY v. FERGUSON, 163 U.S. 537 (1896) in these debates for it is the classic Supreme Court case where the court defers to the legislature on Constitutional grounds.
In Plessey the Court basically ruled that since the State of Louisiana knew of the 13th, 14th and 15th amendments to the Constitution when it passed a law segregating blacks from whites, the State of Louisiana must have review those amendments and after review believe the act was constitutional.
The Court than says that "Separate but Equal" meets the requirements of 13th, 14th and 15th amendments since none of them EXPRESSLY outlawed separating the races, only discriminating against them and that just separating the races must have been the ONLY intention of Louisiana.
Everyone knew better, but the Court still ruled that it had to defer to the state legislature that anything a state passes was constitutional unless a law EXPRESSLY violates the Constitution. Furthermore the court ruled that the burden of showing such constitutional violation is on the person challenging the law not the state (or federal Congress) that passed the law.
Plessey is a warning to people. The court will not protect individual rights against a determined federal and state attack on those rights. The Court will look for any way to minimize the right or even gut them completely if that is what the majority of Congress or the states want (And if the court members themselves what that result).
It is harder for the court to gut a right if the violation is of a WRITTEN right. The warning from Plessey is that the Court will even gut a written right for 56 years (and only reversed itself given the Civil Rights movement and the Holocaust of WWII both showed the Court WHY the 13th, 14th, and 15th amendments had been passed and WHY their were needed to be enforced even against popular opposition).
The same can happen to the Second Amendment; the Court can gut it very easily if the Court wants to. It will be harder given the language of the Second than the 13th, 14th and 15th were under Plessey, but not impossible.
One way to undermine the whole Bill of Rights is to permit congress to re-define "Militia" anyway Congress (or a state) wants to. For example define "Militia is those person who are approved to be members of the Militia by the Office of Homeland Security (OHS)".
Such an act, if accepted by the Court would gut the Second Amendment. This is a fear not limited to the Second, a similar re-definition of "Press" to be “those persons approved by OHS to be members of the Press". "Religion" to be "those religions approved by OHS" or even to "petition" to be "Petitions of Congress must go through the OHS first and be approved by OHS…" Such re-definitions would gut the First Amendment.
Thus defense of ANY constitutional right cannot be left to the hands of just the Supreme Court. A good first step would be for the Court to define what the term "Militia" means AND that only the Court not Congress can define what a term used in the Bill of Rights means.
This is only a first step, we also need to remind Congress and the People what ALL of THEIR rights are and to enlist the people to stop any violation of any right before such a violation is enacted.
To do so we cannot lie to ourselves what those rights ARE and what those rights ARE NOT. Thus my earlier thread of the Second NOT covering pistols (but covering assault rifles). We cannot lie to ourselves and we cannot lie to other people. On the other hand we MUST fight to stop any infringements of our rights. That is the warning of Plessey, you can NOT rely on the Court to protect any right.
Mental Competence?
Maybe I am getting jaded, but why do people keep saying they want people to be “mentally competent” (whatever that means) to own a firearm when there is no such requirement for 2-4 ton potential murder device almost every one owns? (I.e a personal automobile). Furthermore no such requirements is being proposed for ownership of one of the deadliest high explosives know to man (i.e Gasoline)
The reason we do NOT regulate gasoline is simple, if we did many people would be ruled “Not Competent” to operate a vehicle. One of the jobs often mention in Social Security Hearings is grounds keepers, even as a job for people who can not drive. If we regulated gasoline like Firearms many of these jobs will be closed to such persons and as such unemployable. The Federal Government does not want that, it wants such people working so they are permitted around gasoline.
The same fact with Automobiles, if a sizable part of the populations could no longer have access to a car (do to a higher level of Competency than what exists now) People will have to use Public Transportation, but these are the part of the population least able to use or pay for public transportation. Again you run up costs, costs that are hidden by leaving such people drive cars today.
Thus mental Competency is a very Minimal standard for the reason that if it was higher the Government (Both Federal and State) would have increased costs to house and feed these people. By calling them “Competent” the Government has no obligations to feed or house them and thus they cause no costs to the Government.
Militia, State Guard and the National Guard
Now most states have “Militia”, "State Guard" an “National Guard” units, at least on the books. Typical is Pennsylvania, Here are Statutes authorizing the "Militia" and "Pennsylvania Guard" (See also The history of Military Intervention in the US).
51 Pa.C.S. § 301 (2002)
(a) PENNSYLVANIA MILITIA.--THE MILITIA OF THIS COMMONWEALTH SHALL CONSIST OF:
(1) all able-bodied citizens of the United States and all other able-bodied persons who have declared their intention to become citizens of the United States, residing within this Commonwealth, who are at least 17 years six months of age and, except as hereinafter provided, not more than 55 years of age; and
(2) such other persons as may, upon their own application, be enlisted or commissioned therein.
(b) PENNSYLVANIA Naval Militia.--the Naval Militia of this Commonwealth, when organized pursuant to rules and regulations promulgated by the Governor, shall consist of those persons as may, upon their own application, be enlisted or commissioned therein.
51 Pa.C.S. § 1301 (2002)- Composition of Pennsylvania Guard
The Pennsylvania Guard shall consist of such units as may be prescribed by the Governor.
51 Pa.C.S. § 1302 (2002)
§ 1302. Designation and change of location of units
The Governor shall designate the location of the several organizations and units and may change the same at his discretion. Organizations and units shall be located wherever practicable in armories owned by the Commonwealth.
Now, the state did have some "Pennsylvania Guard" units till 1959, when Governor Lawrence merged them into the National Guard (He wanted to save money, and most state have abolished “State Guard” units for the same reason).
To understand the relationship between the "Militia" the "State Guard" and the "National Guard" you must first understand how the Militia developed (or more accurately declined) from the "Militia Act of 1792" to the "National Guard Act of 1903".
With the end of the Indian threat with the Death of Tecumseh in 1814, the Militia formed under the Militia Act of 1792 went into a slow deterioration north of the Mason Dixon Line (We will address the Militia of the South from 1815 till 1865 separately) . In this time period (1815-1860) most Northern States kept dropping the fine for not attending drills to discourage attendance to Militia Drills (the states rather have the money from the fine rather than see the Militia drill).
Most Northern States eventually adopted a zero (0) fine and replaced it with a head tax (some people would STILL show up for drill duty rather than pay the fine no matter HOW low the fine was). By the time of the Civil War the Militia of the US was a dead and empty idea. No one had tried to keep it alive.
Thus by 1860 the Militia north of the Mason and Dixon line was dead for all practical purposes, much like it is dead today (Through the Militia Act of 1792 was still on the Books and would remain on the books till long after the passage of the "National Guard Act of 1903". In fact the Militia referred to in the Militia Act of 1792 is still in the Statute Books in the above state statute and Federal statutes).
In the South the Militia was tied in with the Sheriff’s Patrol and the Patrol’s main purpose of keeping the Black Slaves from escaping. The Militia was also the main tool of the Southern State’s efforts to suppress “maroons” i.e. escaped Blacks living in isolated hidden areas of the South. Between these two functions the Militia in the South stayed healthier than the Northern Militia but it even declined given its main function of slave suppression (Through one of the reason for the the early success of the South in The Civil War was that the Southern Militia had stayed a live between 1815 and 1860).
Against this back ground of the decline of the Militia during the period 1815-1860 a desire for a more professional part time unit was demanded by Middle Class Americans (This demand was in both North and South). Given that the US Constitution gave sole control over the Militia to the Federal Government, and Congress had decided NOT to do anything after passing the 1792 Militia Act, the states could NOT adopt a different form of Militia from the one set forth in the Militia Act of 1792 (even if the state wanted to).
To fill this void, military clubs were formed. These clubs purchased their own uniforms and weapons (sometime with additional funds from the State and Federal Government, but no change in the underlaying Militia Act). These clubs/units referred themselves as the "National Guard" starting on August 16, 1824 when Lafayette landed at Castle Garden on Manhattan. For his arrival in New York City. One such “club” took the name of a Regiment of the “Garde Nationale”, which Lafayette had commanded after the storming of the Bastille. This “Regiment” formed a Honor Guard for Lafayette on his trip in New York City. Subsequently, other such Regiments/Clubs adopted the name of the National Guard in his honor (and to deferent themselves from the regular Militia, which was in rapid decline by that date).
Given the legal theories of the time period these units had to stayed out of the control of the State for they were viewed as "State Troops" and Congress had not authorized the States to have them (as required in the US Constitution). Now many such units did receive money from the States and even the Federal Government, but as part of the appropriation process NOT as a change in any underlaying Statute.
During the Civil War, most of these National Guard units volunteered for Federal Service (Except in the South where the units tended to be the formation of the Southern Army). Once these units were in Federal Service and what remained of the Militia had been called out, the states realized they needed troops to protect themselves while the Federal Army was away. To solve this problem new units were formed by the states out of the remaining citizens of the states into "State Guard" units. These were the Old Militia come back to life, but in a more structured way, furthermore they tended to be all-volunteer units as opposed to the draftee/universal service nature of the Militia.
Both the State Guard and State Militia were used with great effect during the Civil War, especially during the invasion of Pennsylvania that lead to Gettysburg. After the Civil War these units were discharged and not re-formed for Congress again refused to re-form the Militia or to take over the National Guard and the State Guards. The Militia quickly died again, the Guard units were dissolved OR reverted to their previous status of being independent clubs (through the states would provide more money after the Civil War than before).
This lasted about a year (In some states decades) but Pennsylvania wanted to maintain its "Army" it had fielded during the Civil War (This had more to do with maintaining political power by appointing a lot of "Generals" than maintaining a strong "Army", but that is getting off the topic).
Since Congress did not act at authorizing Pennsylvania to keep its Civil War Divisions, Pennsylvania decided to push the definition of "Militia" to its limit. Pennsylvania formed 27 Divisions (through each “Division” only had about 100 men in each "Division" unlike today’s Army Divisions of about 15,000 men per Division). Pennsylvania than said these were NOT state troops but the Pennsylvania Militia. These 27 Divisions lasted just a few years till Pennsylvania re-formed these "Divisions" into 27 Companies of just one Division. From the formation of this Division in 1873 till 1898 (and the Spanish-American War), the Pennsylvania National Guard was the largest military unit in North America. The regular US Army was about the same overall size, but its units were never formed above regimental level. (For you non-military people out there at the time period we are discussing it was normal to have 2-3 Regiments to a Brigade, and 2-3 Brigades to a Division. This is to show you the size of the Pennsylvania Division. A regiment had about 800-1000 men in it in the late 1800s).
No change had been made in the Militia Act of 1792 (Which was a FEDERAL STATUTE) but Pennsylvania just ignored that problem and since the Federal Government did not object to the formation of this army, the Pennsylvania National Guard was viewed as legal (the Federal Government was viewed as the only person who had standing to challenge the formation of this Division and it never did).
I question that legal theory, but the Courts of the time period (1865-1903) wanted the National Guard to exist and the fact that it fits more under the concept of "State Troops" than "Militia" did not impress them. This is especially true after the General Strike of 1877 where the People backed the Strikers and thus the “Militia” (had it still existed) would have backed the strikers NOT the powers that be wanted the strike suppressed (See Pittsburgh, St Louis Military Intervention for more details).
The few Court cases of the time period had a tendency to ruled that the State could call whatever it wanted to be its Militia and that would be constitutional for only the Federal Government had standing to object to a military being “Troops” instead of being "Militia".
Given that the Federal Government did not object to the formation of the Pennsylvania National Guard, it “had” to be “Militia" not "State Troops". Since, under the US Constitution, the States can only have "Troops" with permission of Congress and no such permission was ever granted the Pennsylvania National Guard could not be "State Troops".
This remained the law in the US for the Federal Government refused to change its Militia Law (which only Congress could do and did not) BUT the President, the States and both the State and Federal Courts wanted these units to exist no matter what the Constitution said.
If you look at Article 1, Section Of the US Constitution you will see the STATES were given exclusive right to appoint officers to the Militia (This will be more important after the Passage of the National Guard Act of 1903). The Militia Act of 1792 showed HOW the Congress that wrote the Second amendment believe the Militia should be formed and the same Congress also formed up Regular Army forces. Lets look at the difference between the Militia under the 1792 act and “Troops” formed by the Same Congress:
Militia under Troops Today’s National
Under Act of 1792 1792/Today Guard
1. Part Time/Full Time.............Part-Time...............................Full Time..............Part-Time
2. Weapon, Provided by...........The Militiaman......................By Congress..........By Congress
3. Backpack, provided by.........The Militiaman......................By Congress..........By Congress
4. Uniform................................The Militiaman......................By Congress..........By Congress
5. Basic Load of Ammo...........The Militiaman......................By Congress..........By Congress
6. Weapon Stored where..........At Home.................................In an Armory........In an Armory
7. Paid br who?........................Unpaid....................................By Congress..........By Congress
8. Must Congress approve
the Officers of the Unit?...........NO.........................................YES.......................NO.
Thus if you compare today’s National Guard with the Militia Act of 1792, the National Guard is closer to the Regular Army of 1792 than the Militia of 1792. Of the Eight characteristics of “Troops” today’s National Guard complies with seven of those characteristics (Being part-time instead of full time being the only thing today’ National Guard has with the Militia of 1792).
If you take into consideration the “Dural” appointment system of today’s National Guard you further see that the National Guard are really “State Troops” not “Militia”. In the “Dural” system each National Guard unit is actually TWO units, one is the State Militia and the State appoints its officers to that unit, the other is an US Army Reserve Unit whose officers are appointed by the Federal Government. Given that the Equipment is paid for by the Federal government the “State unit” can not use the “Federal Equipment” unless the State officer and the Federal Officer are one and the same (and are paid by the Federal Government except when on State Duty, i.e. all training sessions are paid by the Federal Government).
Now the “Dural” appointment system was part of the National Guard Act of 1903 (the “Dick Act”) and every other Federal statute regarding the National Guard passed by Congress since 1903. Theodore Roosevelt had Congress pass the Dick Act for Theodore Roosevelt had served in a National Guard Unit in New York State and he wanted those units to be the new Militia (and to get rid of what he called the "Useless" Militia Act of 1792). This was the first major change in the Militia Act since 1795. In exchange for Federal recognition and funding, those state's units that agreed to come under the "National Guard Act of 1903" had to meet Federal Requirements as to equipment and training (i.e the “Dural” appointment system).
Some units did not WANT the Federal Funding (many did not need it, they had large endowments built up over the years from donations thus they did not meed ANY Funding). Others had strong connections with their state legislature and could get any type of funding from the State. Often these units had substantial assets from their years of membership as a club and they did not want to lose those assets to the then new National Guard Bureau in Washington.
Most units on the other hand wanted the extra funding for training and equipment, these units became "National Guard" units. These units accepted the requirements of "National Guard Act of 1903" and became today's National Guard units.
Those units that did NOT want to accept the Federal Requirements and Federal Control adopted the old Civil War unit designation as "State Guards".
Since 1903 the Federal Government has only funded National Guard Units. State Guard units either must be self-funding (and some are) or state funded (and some are). Pennsylvania finally abolished its State Guard in 1959, but some states still have them. Technically Pennsylvania (and any other state) can re-form (or add to any existing) State Guard any time any State wants to, but Pennsylvania has not done so since 1959. Most other states can do the same.
In effect the 1903 Act (and its successor the Universal Service Act of 1947) was a way to get around the restriction that all militia officers be state appointees. Even when the Act was first adopted in 1903 lawyers questioned its constitutionality for it stripped the rights of the states to appoint officers independent of the Federal Government (a right preserved in the Constitution) .
Please note the only “side” who would have “standing” to challenge the 1903 act (i.e. the States), did not want to challenge the 1903 act. The States preferred receiving the money for their Guard units from the Federal Government more than preserving their right to appoint officers. This is the situation regarding the Guard to this day. Given the Constitutional restriction I believe the National Guard do NOT meet the requirement of being a Militia Unit (but given that it has been approved by Congress the National Guard are valid State Troops for Congress has expressly authorized the States to have them. The fact that the Congress called them Militia instead of State Troops do NOT make the National Guard illegal (And I believe the National Guard were ILLEGAL State troops prior to the 1903 Act).
Personal Rumblings
Now as to my own beliefs, I view the original Militia Act as determinative. Pistols were know at that time and had been around for about 200 years, yet are NOT mentioned in the Section One of the Act (a "hanger" is, if you do not know, is a sword used by Officers of that time period to emphasis their Orders in Battle. Thus it is a symbol of rank, not a weapon. Pistols replaced such swords starting about the time of the American Civil War, but still as symbols of rank NOT as “real” weapons). Now Pistols are mentioned later on in the Act, but only in the formation of Calvary units, and Calvary units were restricted to no more than 10% of the total troops formed under the Act and as such not relevant to the issue of weapons for your average Militiaman.
Today, other than as symbols of rank, pistols are also carried by personal whose "main weapon" prohibited them from operating a Rifle. In 1792 such personal were primary Calvary-men and their horses. When I was in the Texas National Guard in the 1980s I was a Armor Personal Carrier (APC) driver and as such was issued a pistol. My "main weapon" was the M-106, 4.2 Inch Mortar Carrier I was to drive - NOT shoot my handgun.
Thus I believe pistols can be banned for the object of the Militia is to supply light infantrymen. Rifles (even Bolt Action Rifles) are MUCH more useful in the hands of such soldiers than are pistols. Or more accurately the usefulness of a man with a rifle or a pointy shovel (referred to as a "spade" would be more useful in the typical military operation of the militia than would be pistols. Thus pistols and even sub-machine guns can be banned for Rifles (including Assault Rifles) would be more useful in any military operation of the militia.
In the absence of a rifle, a long handed spade would be useful just to dig entrenchments and as such more useful than a pistol in military operations (and do not knock such spades, the German "Shock Troops" of WWI were squads of 12 men one of whom was only armed with a long handed spade for that very purpose. With those Shock Troops Germany almost won WWI. The Shock Troops have been referred to a the Panzer troops of WWII just without tanks. Tactics were similar, charge, bypass, and surround the enemy and destroy his lines of supply and communications. And this was done by troop equipped with Bolt action rifles, spades and one water cool "light" machine gun.
My point is the spade had higher military usability than the pistol during that time period AND HAS SUPERIOR MILITARY USABILITY TO A PISTOL TO THIS DAY. Given the wide spread availability of such spades, pistols can be banned for such spades have higher military usability.
Pistols only have military usability in two circumstances, the first as symbol of rank (i.e you command a Company of men) or to be carried by someone whose main weapon is difficult to adjust (I.e a General Purpose Machine Gun) or the weapon, while military needed, has only a limited role and the carrier may have to defend himself from other infantrymen while carrying the weapon (such as the various Anti-tank and Anti-Aircraft Missiles issued to modern soldiers. It is difficult to carry both the handheld missile and a Rifle and the missile has very limited usability against infantry).
While the above is correct, and an argument can be made if you own a proper Machine Gun or Anti-Tank Missile Launcher or Anti-Aircraft Missile Launcher or even a Tank, an argument can also be made that you can still carry a rifle while carrying those weapons. It may be more difficult but the rifle would have superior usability to a pistol and as such a ban on pistols even for these uses may be justified under the Second.
REMEMBER the Second preserves the right of the Federal Government (and by implication the States) to form the Militia as the Feds (or the states) may think best. Thus the Second does NOT stop the Federal Government or the State from standardizing militia weapons for ease of re-supply. Thus the Government may ban a weapon (such as a pistol) just because the Government only want to have to supply the Militia certain caliber of Ammunition.
Remember at the time the Second was adopted Congress had fought a long and nasty War. The fact that it is easier to re-supply an army which is using only one caliber of weapons was driven hard on them. Thus even in the Militia Act the weapon covered was .69 caliber weapon like the type the French had supplied us during the Revolution. Thus to ease supply is a valid ground to ban weapons from being militia weapons. Thus congress can ban any weapons such as pistols, no matter what military justification for the use of such weapons, simply to ease the re-supply problem.
Now Congress can not ban weapons to ban weapons under the Second, but can ban weapons in favor of other weapons (i.e ban pistols because Congress would prefer the militia to have Assault Rifles). Thus any ban must still permit the Militia to have some sort of Weapon of Military usability (i.e Assault Rifles). Furthermore the weapon NOT banned must be able to be used by the Militia as part of a TEAM effort. Any militia is made of small groups of people acting as a team (Generally on the infantry squad level). Thus Militia service is ALWAYS A TEAM EFFORT.
Thus Congress can banned weapons that it believes does not help the Militia operate as a team (in addition to any supply consideration). On the other hand Congress (and the States) can NOT ban weapons that clearly enhances the Militia to operate as a combat team (and does not interfere with any supply situation).
The test I would use is does the Weapon banned enhances a combat team more than a long handled spade? Yes, a PERSON with a pistol will beat a PERSON with a shovel, but THAT IS NOT A TEAM APPROACH. That is like saying one sides Linebackers will always tackle the other sides Quarterback, provided no one else is one the field. True but irrelevant.
The Quarterback will have things around him know as "Linemen" and "running backs". The same with people working together in any militia activity. The militiamen will act as a team and its members as members of that team. Thus the REAL question is whether a person with a pistol or a person with a spade enhance that team MORE. The other team members generally will carry rifles or shotguns. Thus will a person carrying a spade or a pistol add to combat effectiveness of a team of riflemen or shot gunners? In my opinion the answer to THAT question, is the spade user. He can dig entrenchments, in close combat he can use the spade as a defensive weapon to defend himself till the other members of the team can help him out. Thus a person with a spade enhances an infantry squad.
You cannot say the same of a person with a pistol. Given the range of even most shotguns, the pistol carrier can not add to the fire-power of the squad (He is outrange by the Shotguns), he can still warn his fellow team members but in close combat drills (i.e. within 2-3 feet) he is no better than the person with the spade, and since the pistol can not be used to dig entrenchments, does not even bring THAT enhancement to the team.
My point is you cannot view a man with any particular weapon in isolation. Such a person is NOT acting like a member of a militia. You must look at what any particular weapon brings to a group of people working as a team. In most cases (there are exceptions but in the majority of cases) a person with a spade will add more to a team of militiamen than a person with a pistol.
The pistol does not add to the power of such an ad hoc infantry team, while the spade does add to such a team by the simple means of helping the members of the team better survive any attacks by hostile fire.
Thus given today's combat needs (and supply needs of today's battlefield) I do not believe that Congress can NOT ban Assault Rifles but can ban pistols.
Web sites for the General Strike of 1877:
http://www.socialistappeal.org/uslaborhistory/great_rai...
http://www.plp.org/labhist/wlpittsb1877.pdf
http://www.pittsburghaflcio.org/railroad.html
http://college.hmco.com/history/readerscomp/rcah/html/a...
http://www.ranknfile-ue.org/uen_1877.html
http://users.crocker.com/~acacia/text_gsif.html
http://archive.ncsa.uiuc.edu/Cyberia/RiverWeb/Projects/...
http://www.plp.org/labhist/rrstrike1877.pdf
Solidarity
http://www.ce-review.org/01/27/solidarity27.html
http://www.needham.mec.edu/high_school/cur/Baker_00/200...
The Russian Revolutions of 1917 (I found a lot about the revolution and the subsequet Civil War, but few on the actual revolution here is one site):
http://www.emayzine.com/lectures/russianrev.html
The German Revolution of 1918
http://mars.acnet.wnec.edu/~grempel/courses/germany/lec...
Here are some sites that have arguments on the Text of the Second, many make other arguments also, but I included them because you wanted information regarding the Text of the Second Amendment.
http://www.ccrkba.org/1999Emersoncase2amend.html
http://battleflags.tripod.com/embaras.html
http://www1.law.ucla.edu/~volokh/2amteach/interp.htm
http://www.saf.org/LawReviews/Dowd1.htm
http://www.gunlawsuits.com/defend/second/articles/twent...
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=54194&mesg_id=54332
I wrote the following on "Militia" and "State Troops" in Feburary 2012:
And the difference is important for both terms are used in the US Constitution. Militia is to be organized according by Federal Law, but the officers are to be appointed by the State, but State Troops are NOT legal unless Congress permits the States to have such troops. The Second amendment goes to the issue of the Militia, but does NOT mention "State Troop".
Both terms, "Militia" and "State Troops" are undefined in the US Constitution, so we have to look elsewhere for what was meant by both terms. This is complicated by Hamilton's Federalist paper on the Militia which is the only Federalist paper that addresses the Militia. In that paper, Hamilton describes how he would organized the Militia not how it was organized. The good part of Hamiton's paper is that he addresses how he could form most of the Militia and he uses the term militia to include EVERYONE, not just volunteers. Please note after the Constitution was passed, the Congress rejected Hamilton's idea of a two step Militia, a Select Militia and a Regular Militia, opting instead for a universal Militia (i.e. Every male between the ages of 18 and 45 were members of the Militia).
Yes, the terms "Militia" is NOT defined in the US Constitution nor the Bill of Rights. The traditional way of interpreting terms used in the Constitution is to see how the First Congress handled those same terms. In the Militia act of 1792 (Re-passed as the Militia Act of 1795, after the Bill of Rights were passed, but without any significant changes) sets forth that the Militia consisted of every able bodied white male between the ages of 18 and 45 years of age.
There are problems even with this, for Washer Women were NOT addressed in the Militia Act of 1792. yet the practice for at last 1000 years was that for every 20 men, there was one Washer woman (And that would continued in the US Army till the late 1880s, when Congress would outlaw Washer Women, a Statute still on the books for the simple reason if it was repealed the Common Law Rule would come back into place).
Yes, 5% of a military unit's personel (i.e. The Washer women) were NOT addressed, for the simple reason it did NOT have to be addressed, the law was clear, you had 20 men (A traditional Platoon), those 20 men were assigned one Washer Woman (Who tended to be the Platoon's Sargent's wife or other female relative, I mention this for a lot of folks today confuse the Washer Women with the Camp Followers, Camp Followers followed the Camp, washer women were INSIDE the camp).
I bring up washer women for it clearly shows the Militia Act of 1792 was written based on Congress's view of traditional military unit make up, and did NOT address what that unit consisted of unless Congress wanted to make a change OR to make something clear.
Side Note: The Militia Act of 1792 was the law of the US in regards to the Militia till the Dick Act of 1903, which created the Modern National Guard. One of the reason for the Dick Act was the question of Constitutionality of the National Guard for it was a Volunteer unit NOT a unit of all males in the State. The State Courts had long upheld the National Guard as the Militia on the Grounds the State Legislature called it so (And the National Guard was viewed by the States as a more reliable instrument to put down labor strikes then the Traditional Militia, and after 1865 the Courts came to oppose labor strike and would uphold almost anything that could be used to put down Labor Unions, in fact the Sherman Anti-Trust Act only passed Congress on the grounds it could be used against Unions, and was used against Unions, till the Clayton Act exempted Labor Unions from the Sherman Anti-Trust Act).
Side note #2: As I said the State Courts wanted the National Guard to be Constitutional so ruled it was, the Federal Courts avoided the same issue for they also wanted to rule the pre 1903 National Guard a Constitutional Militia, but it was feared that the Courts would look at the Militia Act of 1792 and ruled it was clear that the National Guard was NOT Militia and thus unconstitutional without Congressional authorization (The State Courts ruled that since the Federal Government did NOT sue the state to put down the National Guard, the National Guard was constitutional as either a group of people assembling as guaranteed under the First Amendment or a legal Militia under the Militia Clause of the US Constitution). The Federal Courts avoided the Issue on the Grounds of Standing, i.e. only the Federal Government had Standing to sue the States over the National Guard, and only the President had Standing to sue the States on that issue.
What is the difference between "Troops" and "Militia"? Today it is claimed the difference is one of full time or part time. i.e. The National Guard, like the Regular US Army issues its personnel, Weapons, Field Equipment, ammunition etc, and the Soldiers are PAID for the time period they are called into service. The difference between the Reserves of today (Which includes the National Guard) and Regular Troops is that the Reserves are paid for one week end a month, two or three weeks annual services (and paid when called up for other service or training). I.e. the Reserves are NOT full time, the Regular Army is full time.
In the 1792 Militia Act, the Militia was defined as EVERY WHITE MALE BETWEEN THE AGES OF 18 AND 45 (Under the Post Civil War Amendments, the term "White Male" includes ALL MALES). Furthermore such Militia men had to come equipped (i.e Supply THEMSELVES NOT by the State or Federal Government) the following:
1. A .69 caliber Musket (Or a Rifle, if a member of a Rifle Company)
2. A pack, with tent, and blankets,
3. 20 rounds of Ammunition
4. Personal Clothing.
The Regular forces of the time period had all of those items issued to them. The modern equivalent is issued to the Regular and National Guard units of today. Thus the only difference between Regular and Reserves forces today is that the Regular units are Full time the Reserve units, are Part Time. The problem is even in the 1790s, regular forces were know to have "Reserves" independent of the Militia, whose arms, equipment and Ammunition was supplied to them, while the Militia had to provide their own.
Furthermore Militia was NOT something you volunteer for, you went because you were called up NOT because you volunteered to be called up (In the battle of New Orleans, even the men who were to poor to own a musket were called up for duty and told to bring clubs, to be used against British Regulars if the Regulars broke the US lines, these club bearers were to charge the break through and try to push the British back, fortuity they were not needed).
The modern concept of Reserves, can be traced back to some French units in the early 1700s, but came into full play after the Defeat of the Prussian Army by Napoleon in the Battle of Jena in 1809. In response to that defeat Prussia developed the modern reserve army concept (Napoleon restricted the size of the Prussian Army, thus to get around that restriction Prussia would train men, then "discharge" them to a reserve status, and called up additional men for training, thus keeping the total of Active Forces within the limits set by Napoleon, Napoleon had put no restrictions on Reserve forces of Prussia just active forces).
The key difference between these Reserve Forces and the older Militia was that the men were centrally trained, all clothing, arms, ammunition etc was provided by the State. Most of Europe by the time of WWI, had replaced their older Militia with similar reserve units (Most importantly France after its defeat in the Franco-Prussian War of 1870). Britain and the US tended to be the only exception to this transformation do more to domestic politics and the desire in the US to keep the Militia available for State use against Strikers.
This change was noted even in the 1800s, the joke being, every Prussian male was in the Army, with all of them were on 11 month leaves. The Dick Act was an attempt to convert the older US National Guard Units (Which tended to be clubs more then anything else) to a proper Reserve in the Prussian tradition, but retain they use as strike breakers (The true Militia like Universal Military Services as in the Prussian reserve system tended to make units less reliable in such domestic disturbances and thus disliked in the US after the General Strike of 1877 and similar disturbances in Britain in the 1830s. These units, the True Militia and the Universal Military Service units tended to include people who had gone on strike and/or supported the strike and thus NOT usable to put down such strike. No one wanted a repeat of what happened in Pittsburgh in 1877, The Philadelphia Brigade opened fire on Strikers, when the Pittsburgh Brigade saw that, they stacked arms and left, leaving the Philadelphia Militia not only facing strikers to their front, but on their flank where the Pittsburgh Militia had been, The Philadelphia Militia then retreated and was rejoined by the Pittsburgh Militia after their officers talked they men to come back, but then the Roundhouse the National Guard had retreated to burned to the ground and the Militia retreated out of Pittsburgh, once in Butler county was discharged from further duty).
The 1877 series of Strike, known as the General Strike (It went from Baltimore to St Louis, St Louis was actually run by a Commune type government during the height of the Strike) saw both Regular US Troops and National Guard Troops being used to put down the strike. This strike had a huge affect on State and Federal Courts wanting to uphold the National Guard as "Militia" for the Federal Government, which was evenly split between the two parties, could not pass any law making the National Guard into Federal Service (The practice done during the various Indian Campaigns after the Revolution to 1877, and for the War of 1812, Mexican War and the US Civil War). Thus the National Guard had to be Militia, even through it was made up of people who joined it as a club NOT the full call up of all men between the ages of 18 and 45 as set forth in the Militia Act of 1792 (Which was still the law of the Land in 1877). The Pennsylvania National Guard of 1877 issued weapons to its enlisted ranks AND issued uniforms and other equipment just like a Regular Army unit did at that time period.
I bring this all up for the issue that the National Guard is NOT the Militia has been avoided in the various gun control cases that have reached the US Supreme Court. What is meant by the term "Militia"? Does it have to be universal (as both the 1792 Militia Act states AND as Hamilton stated as to Militia) or can it be an "select" Militia (The term Hamilton used for a smaller, better equipped and trained Militia within the Regular Militia of his time period). What is the effect of the state providing weapons and Equipment as oppose to the Militia bring it themselves? I can not believe the difference is solely do to being full time or part time, for the Reserve Troops have always been part time, except when called into service, but that is also true of the Militia.
My position is simple, the Militia consist of all persons of the US. The US can restrict who can be called up and when, but that can be changed as needed. The State has the right to form the Militia if it wants to, but unless Congress states otherwise, it must consist of everyone in the state, with reasonable exceptions (i.e. Medically unfit, member of an exempt class of people, exempt for various reasons mostly due to the fact they have important functions elsewhere in time of a crises, firemen, police officers, judges, etc. Not Doctors or Nurses unless members of a emergency Hospital care unit or taking case of patients with ongoing medical problems). Volunteers do not cut it, for they are NOT everyone. I would not even exempt women, for most of the work of the Militia has been non-combat duties in support of regular and reserve forces that do the actual fighting. If the state calls the Militia into Service, it should be universal, including both combat and non-combat units.
The National Guard, do to the fact they are volunteers, paid, equipped and armed by the State and Federal Government are State Troops and thus only constitutional on the grounds Congress has authorized them ever since 1903. The National Guard is NOT militia, no matter what the State and Federal Government claim them to be.
The problem, unless these units do something to someone that only they can do (i.e. hard to show, most cases, these Militia will work under a Police Officer authorized under the General Police Power reserved to the States) the only person who has standing to challenge the existence of these units is the President of the United State (and historically the President has supported the National Guard and these other Guard units for they tend to be very politically powerful).
I doubt that Obama (or actually his Attorney General) will attack the existence of these units for it would be to costly politically for him to do so. It is the perfect case to get the Supreme Court to rule on the issue, but only if the President actually files an action. No one else can for no one else has standing (The President has standing for if such units are "State Troops" such "State Troops" have no right to exist without Congressional approval and as Commander in Chief the President has the right to enforce the protection of the Federal Government from any encroachment by any state of any power reserved to the Federal Government).
It will be hard for anyone else to claim standing, thus no one challenged the National Guard from its start as Clubs in the 1820s (as the regular Militia deteriorated due to lack of any foreign enemy after the Native Americans were driven from the East Coast right after the War of 1812). These Clubs adopted the name National Guard in honor of Lafayette when he came back to visit in the 1830s. At times Congress even provided such units money and arms, but no authorization till the Dick Act of 1903.
Even after the passage of the Dick Act, the Courts kept ruling no one had standing to challenge the Dick Act on the ground only a State could (and the State liked the idea of the Federal Government giving them money for the National Guard so no state wanted to lose the funding, so no state has ever made such a challenge). There are problems with the Dick Act and the 1947 Act that replaced the Dick Act and threw the National Guard with the Army and other services Reserve components of Regular Forces) but no state has even made a Constitutional challenge of it for no state has wanted to lose funding for its National Guard units.
Arizona is giving Obama the ability to attack the National Guard as Militia. The National Guard and Obama will suffer no harm if a court would rule the National Guard is State Troops, for Congress has authorized the National Guard thus the National Guard since 1903 has meet the Constitutional Requirement that any State Troops be approved by Congress.
These "Guard" units are a different matter. Are they Militia or are they State Troops? If the later, Congress has NOT given permission for Arizona to have them and thus they are unconstitutional. It is a perfect case for Obama to seize and stop these troops from doing any harm, but is he willing to do so?
http://www.democraticunderground.com/101451026
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