Perhaps when the Supreme Court mulls over "militia" and the Second Amendment...

[KansDem]

...it can take a look at the Fifth Amendment and define what this "militia" is:

Amendment 2 - Right to Bear Arms. Ratified 12/15/1791.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Does this mean that Militia members can be held without "presentment or indictment of a Grand Jury" since we are at war in Iraq? And which "militia" members does this cover?: the National Guard-type "militia" members or the home-grown-type "militia" citizens?

By the very nature of calling themselves a "militia," could these fellows be rounded up and held "without presentment or indictment of a Grand Jury" since we are at war?

[derby378]

1. Well, since Congress never actually declared war...

...I think the Michigan Militia is safe for the time being.

A quick browse of the 5th Circuit Court of Appeals ruling on US v. Emerson may also be informative.

[KansDem]

3. So the "Iraq War Resolution" of October 11, 2002 was not about "war?"

I see your point, no where in the IWR does it mention "war" (except in reference to the Iraqis):

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

The White House

Clever! "Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq" does not mean "war."


edited to add link

[Deep13]

2. It only speaks to indictments.

Anyway, a militia is whatever state law says it is. My understanding is that the "Michigan militia" exist under a state law allowing for a kind of unofficial army.

I frankly doubt that the Nat. Guard qualifies as a militia for Constitutional purposes since the Feds can and do use them as part of the regular army and for imperialist purposes.

[DemoTex]

4. Could it be stretched and call Blackwater a militia? Has it been?

But the 5th Amendment reads "the Militia." Definite article the! What, then, is "actual service"? What is the difference between "War" (capitalized in the document) and "public danger"?

[KansDem]

5. Good questions!

Let's hope the Supremes will be able to address these points.

[Didereaux]

6. in the lexicon of the day 'militia' was ANY armed body...also

... the other thing is that second clause of the second amendment contains the compelling and clear 'the right of the people...'

The term 'right of the people' is all inclusive in EVERY instance of its appearance. This has been tip-toed around by several of the courts. It boils to this the only way that the gun issue is going to be settled is by repealing the 2d Amendment...and that ain't going to happen. Whether or not this twirly-eyed bunch a whackos on the bench today will state that reality is up in the air. Flip a coin.

[alfredo]

7. If the court says that the second amendment means gun ownership

is only for maintaining militias couldn't the states declare that every adult gun owner in their state a part of the state militia?

[Didereaux]

8. that is in fact....

the gist of the unregulated militia. As you probably are aware the original revolutionaries were nothing more than men who brought their own weapons and grouped together to fight the British. Those groups were militia, not state sanctioned, not organized, simply men who shared the same idea and cause. As such they became the 'unregulated militia'. There are specific clause that describe and proscribe regulated militias, both federal and state levels. That last fact alone makes it painfully obvious as to what the framers meant by 'unregulated militia'. To argue that they are really under the states auspices is to argue for THREE militias, two under the state and one under the federal goverments control. Rather absurd on the face of it, but if you forgive the absurdity you are faced with why didn't the framers then describe and proscribe how, who and what it was, and how was it differentiated from the regulated militia.

Thos Jefferson and many of the framers did fear the tyranny of the masses(todays touchy-feelies and the Neo-CONS), but they also feared the 'King'. the 2d amendment was written to address in part the latter fear. This dichotomy has perplexed the courts since the beginning and is almost wholly the cause of the 'weird' interpretations concerning the right to bear arms. Irrational fears from all directions!

In todays world it is even more exacerbated by the absolutely horrible level of education in regards to this nations system of government and history.

A couple of the more whacked factions can be dealt with safely by the rest of by the simple expedient of telling all Texans that the people of San Francisco have voted to disarm all Texans. After a 2 or 3 week period, go to San Francisco and gather all the Texans together(or put a bullhorn in Quoit Tower(mineret style) and announce that the Mexicans have buried several billion in gold bullion in the middle of the Mojave Desert. Voila' two whacko groups completely removed and not a single solitary casualty to a normal human being! heheh

[Disturbed]

9. This is a real important case.

I doubt that the SC will decide to dis-arm citizens of the USA.

[Didereaux]

10. I agree, but it is even up as to whether they will sidestep the fundamentals n/t

[alfredo]

18. They could be facing armed resistance from right wing militias

if they said anything other than the status quo.

The right wingers on my veterans mailing list are totally freaked out over this. I'm concerned too, but would want to find a non violent resolution.

[slackmaster]

11. Here is my state's definition of the militia - What's yours?

MILITARY AND VETERANS CODE
SECTION 120-130

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia --and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard or the
Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General....

More fun at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=120-130

[Didereaux]

14. notice the...

use of 'UNORGANIZED Militia' rather than 'unregulated militia' again the sidestepping to avoid direct confrontation with the second, yet maintain appearances of having done so. The reason for the 2d is a fearsome thing to all lot of constitutional scholars and such.

No, I haven't got the Texas one handy, but shakey memory says its similar.

[slackmaster]

15. The federal definition is similar

The definition of unorganized militia came into being when the National Guard was organized. It distinguishes the militia as all of the people from members of the NG without excluding them from being part of THE militia.

[hansberrym]

12. Yes, they certainly ought to look at both amendments and

take note of the qualifiers written into #5 which do not exist in #2.

Note that the right of the people is not qualified in any way in #2, but there are qualifiers ("or in the Militia, when in actual service in time of War or public danger") which narrowly define the exception allowing for military trials in #5.


The Supreme Court ought to take into account that the Second Amendemnt contains NO "when in actual service", or "who are enrolled" qualifiers on "the people" .

[CK_John]

13. IMO, the court will say it is "a right reserved to the states" coming just after our convention

and before the GOP convention. This is there way to help cause chaos for us in every state during the campaign. We will have Mayors fighting state Gov, with state against state and Mitt will slip under the radar, while we tear ourselves apart. Not a good situation.

[gratuitous]

16. I hope they mull over the "well-regulated" part

My proposal would be that every gun-owning citizen attend a mandatory two-week training course in the proper shooting, handling, loading, unloading, and storage for each firearm they wish to own. A person could then conceivably own 26 firearms, and have one day left over to be a law-abiding citizen, two days in leap years. Failure to attend the course would result in forfeiture of the firearm. Any unregulated firearm used in the commission of a crime would be an aggravating factor tantamount to intent to commit murder.

After all, what does "well-regulated" mean?

[SoCalDem]

17. When the constitution was written, having a gun, meant you could eat

The US was still heavily forested , where the people lived (or nearby).. Unless you wanted to chase down a rabbit and strangle it, you sort of "needed" a gun..

It made sense to keep a ready-reserve of former "freedom fighters" , who were armed...and have them ready to re-group..

I have always felt that the founders halfway expected more trouble from the UK...and having people armed & ready to go made a lot of sense..

I am also pretty sure that the founders did NOT envision teenagers rampaging neighborhoods ...blasting each other with uzis..:eyes:

The constitution was written by people who KNEW it could and would be amended..as the times dictated..

It's just too bad they did not DEMAND it...say every 50 years.. That would have allowed for a regular "going-over", and the getting rid of some of the ambiguities they built into the original ..

.............

Blackwater is a militia
DynCorps is a militia
The MinuteMen are a militia
The Klan is a militia (not as strong as they once were, thankfully)

But modern militias are NOT forces for Good.. they ARE evil, by their very nature because they are entities unto themselves, and the "public" they serve is NOT the GENERAL public, but a small sliver of zealots who are dangerous..

The closest thing to the type of militia mentioned in the Constitution would the the National Guard and the Military Reserve.