If the Second Amendment is intended as a check on government power,

[Occam Bandage]

why is it that Article I, Section 8 of the Constitution declares that the Congress has the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions?"

I would think that if the Founding Fathers intended the "well regulated Militia" to protect the people against government overreaching (as many gun-rights supporters claim), they would not have declared that Congress has the power to use that same militia to enforce the law and to crush insurrections. It would seem that rather than intending the militia to be a check against the Federal government, they intended the militia to be a tool of the Federal government.

[X_Digger]

1. Read the federalist #46, that may clear it up. n/t

[Occam Bandage]

2. It doesn't really.

Madison claims that the Federal government couldn't possibly hope to subdue the states through force of arms, since the militia would outnumber the Federal army 500,000 to 25,000. Never mind that Madison is displaying a clear unfamiliarity with the value of the militia in American history (it was absolutely useless in the French and Indian War, which is why the British army was in the Colonies in the first place, and all propaganda aside, it was practically useless in the Revolutionary War.). Fondness of the militia was common among idealists like Jefferson and Madison who had never touched a musket; veterans like Washington thought the militia was nothing but a waste of money and guns. But Madison's naivety may be set aside, as it isn't really relevant.

Federalist 46 contains an expression of the belief that the militia might be used to protect State power against Federal power. That still doesn't explain the contrast between the belief that the militia is a tool of state power against the Federal government, and between giving Congress the explicit power to arm and muster the militia to enforce laws and suppress insurrections.

[X_Digger]

8. A militia

is a group of individuals drawn from the varied states only under certain circumstances (insurrection, invasion, etc.) In order for congress to have a body of men whose primary loyalty is to the federal government, you'd need a standing army.

To assume that you could draw up a militia and then have them act in concert against the states arbitrarily (which would be the fear of having a standing army) is quite a stretch. In a time when the federal government was much smaller, had much less power, and influenced people's lives to a much lesser degree, the idea of a group of men from varied states under control of the federal government temporarily- to assert that those men would assist in tyranny- just doesn't make sense to me.

It was a balance- they knew that an organized militia was a necessity under certain circumstances, but they had the examples of Bonaparte, Czarist Russia, the Prussians, and England where a standing army was beholden to a power higher than the people, and served the interests of a monarchy or oligarchy. Jefferson pushed for the second amendment as a means to keep those feared standing armies at bay.

"There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." --Thomas Jefferson to David Humphreys, 1789. ME 7:323

"I do not like {in the new Federal Constitution} the omission of a Bill of Rights providing clearly and without the aid of sophisms for... protection against standing armies." --Thomas Jefferson to James Madison, 1787. ME 6:387

"Nor is it conceived needful or safe that a standing army should be kept up in time of peace for {defense against invasion}." --Thomas Jefferson: 1st Annual Message, 1801. ME 3:334

[Occam Bandage]

10. The concept indeed does not make much sense.

But yet there it is in black letter. The Congress shall have power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

The only reference to the purposes and duties of the Militia in the Constitution is a claim that it shall be under Congressional control and used to enforce Federal law and suppress anti-Federal insurrections.

How does that square with the claim that the militia would serve as a check against the Federal government? If I intended to create an organization today to serve as a limitation against Federal power, I would not place it under the explicit authority of the Federal government.

Rather, I think it's fairly obvious that Jefferson and the rest of the pro-militia Founding Fathers did not intend the militia to serve as a direct check against the Federal government, but rather to protect the people from the army by eliminating the need for a standing peacetime army. The militia, with a much lower abuse potential, could be used to crush rebellions and fight foreign invaders, with an army only arising in times of dire need. That would explain both Jefferson's and Madison's belief that the militia would protect the people against the Federal government and the fact that they explicitly placed the militia under Federal control.

[X_Digger]

18. Primary check on federal power? No..

An important one, nonetheless? Absolutely. The lack of a standing army and the expected reluctance of militia participation in an unjust cause- those make sense to me in their historical context.

[Occam Bandage]

21. Indirect protection through a lack of a standing army,

with security provided by a Federally controlled militia that will not be likely to go along with abuses of power, is a reasonable argument and one I believe is correct.

It is also an argument completely unrelated to the modern claim that the Second Amendment is and remains an assurance against Federal power. The militia of 1787 no longer exists. We have a standing army. The only way in which the Second Amendment could remain a check against the Federal government in a modern state is through the type of insurrection that the Founding Fathers intended for the Federal government to use the militia against.

[X_Digger]

24. Ahh, but that's a separate thread :) n/t

[AtheistCrusader]

51. The 'militia' isn't the only mechanism the 2nd protects.

Organized and unorganized militia can be federalized, and wouldn't make much sense as a check on federal power, I agree. However, the 2nd doesn't protect 'the militia' or provide for organizing or even arming one. It protects the people from being legally disarmed. The People are really the ultimate check on federal power, not the militia, as you might see it codified in the Constitution, or US Code.

[pnorman]

4. Federalist Papers #46

http://en.wikipedia.org/wiki/Federalist_No._46

Here's the entire essay: http://www.constitution.org/fed/federa46.htm

pnorman

[nichomachus]

3. The "check on government" crap is just that -- crap

Having a pop-gun in your hall closet is not going to protect you against the US Army or Blackwater, if they decide to come after you.

Any question -- just ask any Iraqi. Prior to our invasion and during Saddam's regime, most Iraqis had at least one gun. Didn't do them any good against Saddam and it didn't do them any good against Bush's Crusaders.

In fact, the only thing that worked against the US were the IEDs and the RPGs, which, curiously, our government won't let YOU have -- Second Amendment be damned.

If the government felt any threat from your puny weapons, they would have been confiscated long ago. Right now, the Second Amendment -- and the delusion that you can take you shotgun and go up against Blackwater or the Third Cavalry, a couple of helicopter gunships, a fleet of drones, and a few RPGs -- is just a giant pacifier for the sheeple to suck on while the government takes away all their other rights.

[DBoon]

6. Gun ownership is high in most Middle Eastern countries

Doesn't make them any more free, or their governments any less opressive

[gorfle]

11. Why not? It worked for the Vietnamese, the Afghans, and the Iraqies...

Having a pop-gun in your hall closet is not going to protect you against the US Army or Blackwater, if they decide to come after you.

There are numerous examples in modern history of technologically inferior forces repelling technologically superior forces. Vietnam, Afghanistan, and Iraq are examples.

Any question -- just ask any Iraqi. Prior to our invasion and during Saddam's regime, most Iraqis had at least one gun. Didn't do them any good against Saddam and it didn't do them any good against Bush's Crusaders.

Apathy in the face of tyranny is a far worse problem than lack of arms. This does not mean that lack of arms is not also a problem.

In fact, the only thing that worked against the US were the IEDs and the RPGs, which, curiously, our government won't let YOU have -- Second Amendment be damned.

But curiously, in spite of the availability of explosives, grenades, and RPGs, all modern infantries still carry small arms.

Small arms also allow insurgents to acquire heavier weapons.

If the government felt any threat from your puny weapons, they would have been confiscated long ago. Right now, the Second Amendment -- and the delusion that you can take you shotgun and go up against Blackwater or the Third Cavalry, a couple of helicopter gunships, a fleet of drones, and a few RPGs -- is just a giant pacifier for the sheeple to suck on while the government takes away all their other rights.

While you are definitely right that our government, specifically the Republicans, have backed the right to keep and bear arms as a pacifier for the masses (along with religion), all the while eroding other civil liberties largely unnoticed, the simple fact is that an armed people can and have stood up to oppression through force of arms.

If the day comes that you find yourself up against Blackwater, the Third Cavalry, helicopter gunships, etc., would you rather start out your resistance unarmed or armed?

The simple fact is two guys shooting out of the keyhole of the trunk of a car basically shut down a wide swath of territory causing a huge economic impact. If the DC Snipers could reach such havoc with just two people, imagine what two thousand such people could do?

[Occam Bandage]

13. I don't believe it's reasonable to chalk up Iraqi failure to overthrow Saddam to 'apathy.'

I think "chemical warfare" probably had something more to do with it.

[gorfle]

27. You are correct.

You are correct. I usually use apathy in this argument because it is the sentiment we are mostly up against here in the United States.

But whether apathy, despair, hopelessness, fear, whatever, my point is that lack of motivation to act is a far greater problem than lack of arms.

This does not mean, however, that lack of arms is not also a problem, for when a people find themselves motivated but without the means to act, acting is a lot harder in spite of being motivated.

Better to be motivated and armed, as then you are prepared on all fronts.

[nichomachus]

20. Oh for heaven's sake -- get a grip -- Americans are singular for their apathy

Americans -- esp the gun owner crowd -- are not the Vietnamese. These are people who are not going to live in caves for three years. Take away their cable during the final program of American Idol and they go ballistic.

All this "fighting the government" fantasy is just self-important nonsense.

The Bush administration was a rogue administration that took away most of our rights, tortured people, set up a gulag of secret torture prisons, and destroyed the economy? Where were the Second Amendment crowd? Oh yeah -- they were fucking cheering him on.

I am not relying on those people to save me from the government.

What was the latest "grass roots efforts" from the right? The ridiculous "teabagging" parties -- where the participants were spectacularly unclear on what they were protesting and why. They just did what they were told to do by the propaganda arm of the rogue government in exile.

Pfft.

[X_Digger]

25. You seem to be equating..

Pro-RKBA with republicans.. 1/2 of gun owners are Dem/Independents.

[gorfle]

29. You might be surprised.

Americans -- esp the gun owner crowd -- are not the Vietnamese. These are people who are not going to live in caves for three years. Take away their cable during the final program of American Idol and they go ballistic.

As I said, apathy is a far larger problem than access to arms.

The Bush administration was a rogue administration that took away most of our rights, tortured people, set up a gulag of secret torture prisons, and destroyed the economy? Where were the Second Amendment crowd? Oh yeah -- they were fucking cheering him on.

You are right, and there is a reason for this. Many good people look to their politicians to see if they see what they consider metrics of good citizenship in them. For many Americans, this includes a sense of self-reliance (which firearm ownership goes hand-in-hand with), and a Christian belief. In short, they look for politicians who appear to embody "God, Guns and Guts". They do this because of the good things they associate with those things.

Unfortunately, as you note, the Republican party has become the predominate sponsor of those attributes, and they have used them as wedge issues by giving lip service to them all the while acting contrary to them when they hope their constituents aren't looking.

So they support the right to keep and bear arms, all the while suspending Habeus Corpus, endorsing torture, sponsoring indefinite wars with accompanying power grabs, pervasive domestic surveillance, and more evils.

They talk a good game about God but then go back to their wide stances and page boys and other hypocritical behaviors.

But believe it or not, people are waking up. I voted Republican my whole life until the 2006 elections, when I could no longer ignore what the left hand was doing in spite of how good the right hand looked.

So while many of these citizens have been duped and distracted by the shiny pretty thin in the right hand, and thus pacified and placated to where they would not use the arms they have been left to use against tyranny, this does not mean that having the arms to resist tyranny is a bad thing.

I am not relying on those people to save me from the government.

Nor should you - you should have the means to save yourself from your government.

What was the latest "grass roots efforts" from the right? The ridiculous "teabagging" parties -- where the participants were spectacularly unclear on what they were protesting and why. They just did what they were told to do by the propaganda arm of the rogue government in exile.

That may have been the latest grass root effort, but don't forget - many of us participated in another one not so long ago - voting for President Barak Obama.

The system still works. Ultimately, and thankfully, there has been no reason for rebellion. Yet.

[thread-bear]

49. Yes and no!

I absolutely agree with your description of the Bush Administration, and while it is true that a lot of gun-owners supported him,it is wrong to destroy a basic American right in a lock-step us-against them mentality. Let's cherish all our rights. I have yet to see the restoration of our rights under the Obama administration,but I still give him the benefit of doubt, considering the difficulty of his task. Let's restore the Constitution as the supreme law of the land, and the rule of law,not political expediency.

[Taitertots]

19. 80 million gun owners, with more guns than people in America

I really doubt whatever percentage of the military willing to fight Americans would be able to defeat them. There are enough guns to arm every single person not in the military. They would be out numbered 100 to 1.

[Name removed]

22. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Taitertots]

23. Most people knew Bush wasn't worth it

Wait 8 years and get Obama. There was no need and everyone knew it.


You must associate with some real pieces of shit then. All the polling data shows that to just not be the case. With millions of gun owning Democrats voting for Obama, despite his anti-second amendment positions. Hyperbole like that fails totally when you try to pass it off on a forum of pro-gun progressives.


Clearly if the 80 million gun owners decided the government needed to be overthrown there would be no question they would win. Which is the deterrence factor of gun owners. In an unarmed nation Bush could have fabricated another disaster and taken dictator control without a fight. In the current armed America it would have caused an uprising which deters people like Bush from taking dictatorial control.

[gorfle]

30. Then the people get what they deserve.

80 million guns owners and 95 percent of them will actually go along with a real rogue government, as they did with Bush -- and cheer it on.

As the saying goes, in a democracy, people get the government they deserve. If the masses, armed or no, willfully slip on their shackles by their own free will, then they get what they deserve.

Most gun enthusiasts, in my experience, fall pretty far to the fascist end of the scale. They will use their guns to hunt down liberals, fags, immigrants and other "undersirables."

Well now you know one who doesn't.

[krispos42]

40. There are numerous examples of fairly modern societies being torn apart by civil war

The populations fragment and the military that is presumebly loyal to the central government is unable to maintain cohesion or stamp out the rebels.

If conditions in America deteriorated so badly that a sustained insurgent campaign could begin, it is likely that the military would fragment as well. Remember, there's a hell of a difference between shooting foreigners in Baghdadand shooting fellow Americans in Boston.

In addition, the US mainland is ten times the size of Iraq with more than ten times the population and a very diverse geography, multiple methods of transportation and communication, and expansive coastline. And unline in Iraq, an American insurgency would be targeting American infrastructure, which would actually damage the American economy and the American warfighting ability.

(More so than the free-market fundies have, at least).



There is more to war than killing the enemy soldiers. There is logistical war as well as the kind of grinding, wearing war/insurgency agains the people supporting the enemy soldiers.

[thread-bear]

48. check on government

As long the people of the United States have the right to bear arms,the government will never dare rule by military force. On person with a weapon couldn't stand against them,but you would see the "Mother of All Insurgencies." They would be eventually overthrown and face justice. The vast majority of our troops would never have any part of a military takeover, the few that might wouldn't stand a chance against an armed populace. As long as the second amendment stands,theycan only hope for a media controlled citizenry.

[annabanana]

5. I think their "miltia" would be our National Guard...

imho

[Occam Bandage]

7. Their militia is a concept that doesn't really exist any more.

The militia was the body of white, free men who ostensibly owned guns and knew how to use them (though few actually did on either count) and who engaged in volunteer training (though almost none ever actually did). In times of crisis, the militia could be called to a volunteer muster to protect their homes against invaders. This was a very attractive concept for many of the Founding Fathers; they distrusted standing armies as a result of their experience with the British, and the concept of free men voluntarily banding together to fight off a common threat was undoubtedly quite romantic.

The militia never really worked out well. It was undisciplined, untrained, and unreliable. It couldn't be trusted to show up on time, and on the battlefield a single bayonet charge was usually enough to scatter any militia line (with a few notable and noble exceptions, like Bunker Hill). Still, many Founding Fathers--mostly the ones with no military experience--held on to the belief that the militia was as valuable a tool as the army.

Many people claim that the militia was to serve as a check on Federal power. This does not seem to square with the fact that the Constitution specifically authorizes the Congress to use the militia to subdue "insurrections" and enforce Federal laws.

[virginia mountainman]

15. I have a feeling, that you don't know, just what the milita is...

http://www.law.cornell.edu/uscode/10/311.html

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States 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.

Their it is, out of the US Code Book...

[Occam Bandage]

17. Believe it or not, laws written in the 1900s are not an adequate description

of the state of affairs in the 1700s.

[gorfle]

31. It squares fine.

Many people claim that the militia was to serve as a check on Federal power. This does not seem to square with the fact that the Constitution specifically authorizes the Congress to use the militia to subdue "insurrections" and enforce Federal laws.

It squares fine when you understand that the militias were made up of men from their respective states and led by officers from their respective states, thus making them far more loyal to their state than to the Federal government. It was understood by the founders that the militias would make a poor instrument for subjugation of the States because they would not cooperate.

[Occam Bandage]

36. There is a wide difference between

"the Framers didn't think the militias would carry out illegal orders" and "the Framers intended for the militia to carry out the orders of the states against the Federal government." The first is fine; the second flies in the face of the black-letter text of the Constitution.

[gorfle]

55. In my opinion.

In my opinion, the Framers gave the federal government the power to call up the militia, in writing in the Constitution, knowing full well that should such a call ever be against the interests of the States the call would be ignored.

[AtheistCrusader]

53. State Militia's stand alone.

Still under the control of a civillian authority, the Governor, but that's where the chain of command stops. The National Guard on the other hand, can be federalized and the Governor removed from the chain of command. In theory, if the President has gone apeshit and is issuing illegal orders, maybe suspending elections forever, that sort of thing, a state militia would not be under his or her control.

[gorfle]

14. Actually, no.

Actually, their militias were intended to be beholden to their respective States. The State Militias were intended to serve as a substitute for, or at least a counter to, Federal military power.

This has not been the case since 1903 when the Dick Act federalized the State Militias, creating the Organized Militia (National Guard) and the Unorganized Militia (all other able bodied men aged 17-45 not in the Organized Militia).

Since then, the National Guard now serves as an adjunct to Federal military power. It enhances their capability, and in no way counters it. The National Guard is effectively reserve federal troops.

[Occam Bandage]

16. "Actually, their militias were intended to be beholden to their respective States."

This is the exact opposite of what the Constitution actually says, which is the point of this thread.

[gorfle]

32. Please quote.

Please quote the part of the Constitution you believe supports your point.

[Occam Bandage]

35. In the OP. Also, the following:

"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," both from Article I, Section 8.

The militia is under the clear control of the Congress. The State may appoint officers and train them according to the will of Congress, but use of the militia is reserved for Congress in the Constitution.

[jmg257]

45. ONLY when employed in federal service, only for those reasons given.

The states had control over them, and use of them, otherwise.

They were available for the the state governments for immediate protection from invasion, for local uprisings, issues not involving federal laws, etc.

[gorfle]

46. And so...

What do you think the reasoning is behind having the State appoint the officers that lead the Militia?

[Callisto32]

43. Perhaps we need to stop looking at the U.S. Constitution in a vacuum.

While the text you quote certainly seems to say what you say it says when viewed on its own, there is probably more to the story.
Basic statutory interpretation principals state that we need to look at a statute in light of the surrounding circumstances. Remember that this is a constitution that was being written it was done in light of the already existing state constitutions, as well as the Articles of Confederation. We need to determine what the general statutory climate was, what specific problems extant at the time were intended to be addressed by the document and so on. I think that the purpose of this provision may have been to stand the federal constitution in opposition to that of the several states. Notwithstanding the supremacy clause, the states were fiercely independent at that time, and continued to be pretty much up until the end of the 19th century. Given this, that clause you refer to may be more of a check against state power, in opposition to the state's laws regarding the raising and use of a militia and less an opposition to the second amendment. Also, keep in mind that amendments are often intended to supersede the pre-existing words of a statute.

Another approach would be to look at this from the perspective of the social contract. At common law, contracts are, when drafted by one party, construed in favor of the non-drafting party. In this case, the non-drafting party would be "the people" while the drafting party is "the people making up the government proper" so it would be necessary to construe this clause in favor of the people and against the drafters.

[gorfle]

9. It's simple - they can refuse the call-up order.

If the Second Amendment is intended as a check on government power, why is it that Article I, Section 8 of the Constitution declares that the Congress has the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions?"

It's simple. Congress has the power to call for the Militia, but since the Militias were originally made up of men from their respective States, and led by officers from their respective States, they it was expected that that each Militia would be loyal to its own state first, and the federal government second.

Thus any unlawful or tyrannical calling from the federal government would be refused. For example, it was believed that you could not coerce the militias from one State to enforce federal laws in another state. Nor, as another example, could you coerce all the State militias to act in concert in a foreign war unless they all collectively believed it was necessary for the good of all.

I would think that if the Founding Fathers intended the "well regulated Militia" to protect the people against government overreaching (as many gun-rights supporters claim), they would not have declared that Congress has the power to use that same militia to enforce the law and to crush insurrections. It would seem that rather than intending the militia to be a check against the Federal government, they intended the militia to be a tool of the Federal government.

Because the Militias were beholden to their respective States they would obviously ignore the Federal government's attempts at crushing their own insurrections.

[Occam Bandage]

12. That is a peculiar argument.

If "well, people will simply disobey unjust orders" could be relied upon, there would be no need for either checks or balances in the Constitution. Indeed, militias are not just "beholden to the States" under the Constitution; they are placed under explicit and direct Federal control.

A post-Shays driving purpose of the Constitutional Convention was to place emergency-response powers in the hands of the Federal government, rather than having to deal with convincing individual states that fighting a particular rebellion was "necessary for the good" of their state. Your explanation is an endorsement of a particular paradigm that the Constitution was attempting to end.

[gorfle]

26. But a valid one nonetheless.

If "well, people will simply disobey unjust orders" could be relied upon, there would be no need for either checks or balances in the Constitution.

The ability of the States to disobey, through force of arms if necessary, Federal orders is the ultimate check and balance between the States and the Federal government.

Indeed, militias are not just "beholden to the States" under the Constitution; they are placed under explicit and direct Federal control.

Yes, I understand this. But the original Militias were also made up of citizens of their respective States, and led by officers from their respective States. This was done so as to make them beholden to the interest of their respective States first, and the Federal government second. Should the Federal government attempt to abuse the states through the strength of the State Militias, it was naturally assumed that the State Militias would not comply. Yes, the Federal government had the right to call up the State Militias. Yet it is obvious that should they be called up in the name of an unjust cause there is nothing the Federal government could do to enforce their call-up.

A post-Shays driving purpose of the Constitutional Convention was to place emergency-response powers in the hands of the Federal government, rather than having to deal with convincing individual states that fighting a particular rebellion was "necessary for the good" of their state. Your explanation is an endorsement of a particular paradigm that the Constitution was attempting to end.

Certainly the Shay's Rebellion helped put the nation on a more pro-central-federal-government path. But the debate was certainly not overwhelmingly in favor of the central federal government. The Virginia Plan won out over the New Jersey plan seven to three, and there was considerable debate about just where the balance of power should lie.

It's also worth noting that the rebels seem to have good cause for their rebellion, suffering under heavy taxation, confiscation of property, and debtor's prison, in spite of the fact that many of them had fought in the Revolution to create the very society that was now abusing them. It's not surprising to me that this struck terror into the people then in power (and wealth). I'm sure the attitude was, "Holy shit, now it's we who are being overthrown!" and thus they were motivated to de-fang this threat to their wealth and power. No doubt this is what motivated them to raise a private army under Lincoln to help suppress it. It's surprising (and fortunate) that the pendulum didn't swing farther towards a powerful central government than it did, as the newly-made power brokers strove to protect their interests.

I have no doubt that the reason the second amendment specifically mentions The People and not just The Militia was to insure that the ultimate recourse to armed insurrection remained safe with the people and not a State institution that could be corrupted or usurped by the Federal government. If it were not so, the founders would have simply conveyed the right to keep and bear arms to the Militias.

[Occam Bandage]

34. I disagree with you about the legitimacy of rebellion as seen by the Founding Fathers.

You write, "the ability of the States to disobey, through force of arms if necessary, Federal orders is the ultimate check and balance between the States and the Federal government."

I believe this is nonsense, and nonsense that is entirely unsupported in the Constitution and in the actual history of the nation. Belief in the legitimacy of state rebellions is dependent on the belief that the state is the fundamental level of sovereignty in the United States. That is a position which was politically necessary in 1787 to gain support for the Constitution, but not one which has left any lasting impact on the legal framework of the nation. It isn't surprising that much of the rhetoric from the days of the Articles of Confederation survived, but that rhetoric isn't actually reflected in the Constitution that was written. Claiming that the text of the Constitution is less important than the assurances the Founding Fathers gave the landed gentry that their power structure would not be threatened is, I think, flawed. From the ratification of the Constitution onwards, America was a single republic and not a collection of republics under a government that existed by common consent of those states.

As much as the founding fathers loved to talk about the nobility of the common man and the legitimacy of popular resistance against tyranny, they did not treat rebellion lightly. Shays's Rebellion was crushed, and indirectly resulted in an entirely new government with a muscular Executive branch. The Whiskey Rebellion was crushed as well, and in neither case was there an outcry from the supposed champions of the people's right to secure their own destiny through arms. Indeed, there was near-unanimous consent that while rebellion against a tyranny was praiseworthy, rebellion against a republic was practically tyranny itself, and should be punishable by death. While there was some bickering about how to respond, none offered any opinion that would disagree with the statement that resistance to the laws of a republic was ipso facto illegitimate, no matter how legitimate the grievances may be (and as you point out, their grievances were entirely reasonable).

I agree that it would be unlikely that a militia would engage in tyranny--at least not to the same extent that a professional army would. I disagree that the Federal government was not given power to enforce its militia call-up, as that is covered by the "Necessary and Proper" clause, but either way you're right that it was damn near impossible to make a militia do much of anything, just or unjust. The relative difficulty of making the militia defend abuses of power is exactly why Jefferson supported it so heartily.

So now the core of my argument. Jefferson wanted the militia to serve as the primary security apparatus of the government. The Second Amendment exists, I believe, to prevent the Federal government from banning gun ownership and thus defanging the militia as the British did in the years leading up to the Revolutionary War. However, I think there is quite a distance between the claim that the Second Amendment protects freedom by assuring that the Federal government may disband the standing army and rely on the less-abusable militia in times of relative peace, and the claim that the Second Amendment protects freedom by assuring that the people can directly challenge the Federal government through force of arms. The first is reasonable but irrelevant to modern society. The second is common today, but seems entirely unrelated to the purpose of the militia intended by the Framers.

[Raskolnik]

39. I think you are ignoring the fact that the founders were allowing for the possiblity

that the republic could become a tyranny. No one is suggesting that the founders were supporters of revolution in and of itself, but they were supporters of revolution against tyranny. They were not so arrogant as to think that they were creating a perfect system that foreclosed the possibility of tyranny, and I believe that is reflected in the retention of the right to keep and bear arms.

[gorfle]

50. My sentiments exactly.

To say that the founders would never approve of revolution against a Republic ignores the possibility that the Republic could become a tyranny. I'm quite certain that the founders set up a system of checks and balances because they feared that precisely this event could happen. I'm quite certain that they enumerated the right of the people to keep and bear arms as insurance against this eventuality.

[gorfle]

47. Unabler to reply now

I am in the middle of fielding a huge project, so I am not able to compose a reply right now.

I simply wanted to say thank you for the excellent civil discourse on militias, etc.

[jody]

52. Understand but Abraham Lincoln said, "This country, with its institutions, belongs to the people who

inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it or overthrow it."

The quoted statement proves nothing more than different presidents have different views.

[jmg257]

54. "the claim that the Second Amendment protects freedom by assuring that the people can directly..."

the claim that the Second Amendment protects freedom by assuring that the people can directly challenge the Federal government through force of arms"...

is certainly related to the intended purpose of the Militias. Such a direct challenge was recognized, and expected if necessary...

We all seem to agree the Militia was to lesson the need of a large army, but it could also defend against one if need be...

"... if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

As for 'abuse' of the Militia under federal control, and the direct challenge...

"If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people?"
Hamilton Federalist #29


Of course we are now well along the road to tyranny, as envisioned by the founders...we have seen the rendering of the constitutional militias obsolete, and the creation of a massive army on it's ruin. It has been decided after all that a huge standing army is the best security. And now We the people question, too often with mocking disdain, the level of our own effectiveness if we had to confront a tyrant with military forces under his control. It is sad, really, that so many simply say 'it could never happen here', or worse, seem so willing to accept such a losing fait accompli.

So the intention was there, and it was further secured by the 2nd. But is it possible? Is a direct challenge still a viable option?

Many of the people have kept up their end of the deal...90+ million have armed themselves. Of course it is true that this 'unorganized militia' does not resemble the Militias intended by the founders, specifically since the state has failed, we have failed, to keep us well regulated. However, even a portion of such a large number bearing arms would make quite a force. Maybe a force to be reckoned with. And IF their cause was just, who exactly would stand against them?

Anyway, it is my belief that the purpose of the 2nd amendment was not so we the people could fight a new Lexington & Concord, but to help deter usurpation and tyranny so that fighting any such battle is unnecessary.

[one-eyed fat man]

37. Perhaps Jeff Davis and Bobby Lee weren't just whistling Dixie. ...

but they did demonstrate just how much control Congress had over State militia.

However, Teddy Roosevelt was a strong supporter of the Dick Act which created the present National Guard system. This grew out of his experience in the Spanish-American War where State units showed up poorly trained and with hopelessly obsolete black powder arms. In the war's most famous battle, San Juan Hill, it took 15,000 Americans, equipped largely with 1873 Springfield single-shot rifles to finally overwhelm the 760 man Spanish garrison armed with 7mm Mauser bolt-action repeaters.

The battle had been a hard one for the Americans, who suffered many times the losses the Spanish had. The Spaniards, meanwhile, had literally fought to the knife, losing a third of their force in casualties but yielding very few prisoners. His experiences and observations made a strong impression on Roosevelt. He also established the National Board for the Promotion of Rifle Practice. One of the outgrowths of that program was that virtually every big city high school in the country built between then and WW2 had a rifle range. These were all measures to more easily allow the United States to mobilize an Army. One was to equip and train the Militia to a higher standard; the other was to enlarge the pool of recruits who knew how to shoot, for then as now, city slickers, as a group, were clueless when it came to guns.

But then, Roosevelt kept a 1903 Colt on his nightstand in the White House. If you had told him he had no right except a collective one as a member of the militia he'd likely have called his buddy Dr. Leonard Wood to see if yellow fever had addled your brain.

[jody]

28. The Militia Act of 1903 and subsequent acts effectively placed state guard units under the president

but left the "unorganized militia" under state control.

Congress has not fulfilled its duty under our Constitution "To provide for organizing, arming, and disciplining, the {unorganized included} Militia" except for a token force of state guard units, see State Guard Association for links to some of those "unorganized militia" units.

Federal law says with some exceptions, all males ages 17 to 45 are in the unorganized militia and at least one state says with exceptions, all men and women 17 to 64 are in the unorganized militia.

[aikoaiko]

33. The 2nd amendment was intended to help ensure a free state

Free from oppression in whatever form.

[Raskolnik]

38. The founders were believers in revolution as a last best hope.

Congress has the power to call up the militia, but the founders thought that there was a value in citizens keeping a degree of power against the government in their own hands (literally).

Its easy to think of that as hokey now, or dismiss it with the cruise missile vs. shotgun canard, but its an underlying principle that I like quite a bit.

[annabanana]

41. This is a facinating thread, Occam.... thank you. . . .n/t

[jmg257]

42. The Militia is intended to reduce the need for that bane of liberty, a large standing army.

The founders knew that the citizens themselves, well armed and well trained, were the best security of a free politity. THAT is the check on federal power that is provided by the Militias.

And yes, effective Militias of the several States had very vital roles to fill when under federal control, which coincide exactly with the purposes laid out in the preamble and the guarantee in the body of the constitution. Who better to secure the blessings of liberty for the people, then the people who enjoy those freedoms?

And who better to resist the improper use of such power? Especially when backed up by the tension created by the powers of the states, the legislatures of which had to give their leave for use of their militias in the case of insurrections...when the congress actually PROVIDED for calling forth the militas, the upper house of that congress consisted of representatives of the States.

Constitutionally, the absolute control of the militia was divided, with the States picking the officers and providing the training (per federal guidelines), as a check to the other federal militia powers.

Above all else, the people would always supply their own arms (per federal guidelines) for militia duty, so they could NOT easily be DISarmed.

And THAT is primarily what the 2nd amendment is about.

[slackmaster]

44. It's not just that

It's to support the security of a free state, which includes but is by no means limited to protecting it from excesses of government power.