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Saturday, December 29, 2012

"Every thing continues to wear the character of feebleness..."

Just some more semi-random musings in follow-up to yesterday's post on the role of state militias.  To start off, I thought it was interesting how committees can muck things up in the editing process.  Here's Madison's proposal for the right to bear arms::

a well armed and well regulated militia being the best security of a free country

This is how that language ended up in the ratified 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State

Now, 'state' can mean 'country', but we have some ambiguity since we are united states.  I haven't pored over the Congressional debate on the Bill of Rights enough to know if anybody proposed this specific change for some expounded reason (what I've found in the past is most discussion was in the Committee of the Whole, so there ain't much record), so I dunno if this is significant or not.

Anyway, as I noted before, the militia was viewed as the primary, safest way to defend ourselves and our liberty.  And that the militia was intended to be composed of the People themselves predates not only the Constitution, but our Revolution itself.

Which brings up a niggling point, as illustrated by Washington's letter to VA Lt Gov Dinwiddie (1757):

I think myself under the necessity of informing your Honor, of the odd behaviour of the few Militia that were marched hither from Fairfax, Culpeper, and Prince William counties. Many of them unarmed, and all without ammunition or provision. Those of Culpeper behaved particularly ill: Out of the hundred that were draughted, seventy-odd arrived here; of which only twenty-five were tolerably armed.

I proposed to the unarm'd, that as they came from home (at least with a shew) of serving their country; and as they were, from the want of arms, incapacitated to defend themselves, much less to annoy the enemy, or afford any protection to the Inhabitants; that they shou'd (during their short stay here) assist in forwarding the public works; for which I offered them 6d. per day extraordinary. But they were deaf to this and every other proposition which had any tendency to the interest of the Service.

As such a conduct is not only a flagrant breach of the law, and a total contempt of Orders, but will be such a precedent (shou'd it pass with impunity) as may be productive of the most dreadful consequences. 

This might have informed his and Congress' desire to regulate the hell out of the milita, as seen in the Second Militia Act of 1792:

That every [every free able-bodied white male citizen, 18-45 years old] shall...provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

So it appears the assumption was that almost everybody belongs to the militia.  And if you take a look at US statute today:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and...under 45 years of age...and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

In other word, your humble blogger is for a couple more years part of the (very) unorganized militia.  Not in the Guard (I still hate that glib meme), yet in the militia all the same, and thus allowed and even required to keep and bear arms for defense of the State.

Since SCOTUS has ruled from almost the beginning (see Houston v Moore, Martin v Mott, and even Tyler v Defrees) that Federal regulation preempts State laws where the militia, defending the Union, etc, are concerned, it would appear to me that Congress does have the power to legislate just what types of weapons are legitimate for me to keep and bear (though most likely not to the point of banning all firearms and thus gutting the militia altogether).

I think consistent with history, intent, precedent and rulings like MillerHeller and McDonald, it's clear that anti-gun folks simply have to accept that no matter how you slice it, there is an individual right to keep and bear arms, and pro-gun folks have to also wrap their heads around the idea that the Legislature can indeed place limits on that right.  So maybe we can stop arguing about tyranny and constitutionality now and get down to figuring out how to address a significant problem for our nation?


December 29, 2012 in Constitution, Schmonstitution | Permalink


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Posted by: aangus | Dec 30, 2012 5:49:12 PM

Just pass the Militia Act of 1792; require all the gun-nuts to own a musket or flintlock rifle, and prohibit all the other firearms.

The re-enactors will be all set, everyone else? Individual Mandate, suckas!

It would be interesting to hear the rightwingers whining about "original intent" about a bill passed by the 1st Congress and signed by G. Washington.

Posted by: Snarki, child of Loki | Dec 31, 2012 12:26:19 AM

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