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View Diary: The Birth of the Well Regulated Militia (27 comments)

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  •  I posted a comment to that older diary (9+ / 0-)

    and what you'll find is that the Framers were obsessed with the avoidance of a standing army, given the experience of the English during their civil wars.  In particular, the Framers wanted to avoid a situation such as they saw in classical antiquity and with Cromwell's New Model Army that essentially could determine who was sitting in Parliament and influence policy-making.

    Obviously, this went to the wayside relatively early on, but it was where the Framers were at in the 18th century.  You can find precedents for the 2nd Amendment in the English Bill of Rights (1689).

    Note the article above and its reference to the English militia system--this was put in place in the later Middle Ages as a means of calling up men to serve in the king's armies.  At this stage, between the pike and the longbow, heavy cavalry was no longer the main element on the battlefield.  Heavy cavalry--made up of the nobility and the basis for the feudal economic/social structure--was being replaced by other formations (archers, pikemen) which were based in the middle class or better off peasants.  To ensure that this group was prepared in time of war, they were required to show up at the local courthouse to demonstrate that they had their weapons and knew how to use them.  Their names would be recorded in a muster roll.

    See here from the UK National Archives:

    The musters were done away with during the English Civil War period, but were returned under the Militia Act of 1757 due to the Seven Years' War (we call it the French and Indian War).  It was enacted for every county in Britain, as well as English colonies overseas, including Canada.  

    Here's the act for Virginia:

    WHEREAS it is necessary, in this time of danger, that the militia of this colony should be well regulated and disciplined. Be it therefore enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General assembly, and it is hereby enacted by the authority of the same, That from and after the passing of this act every county-lieutenant, colonel, lieutenant-colonel, and other inferior officer, bearing any commission in the militia of this colony, shall be an inhabitant of, and resident in the county of which he is or shall be commissioned to be an officer of the militia.
    What annoys the crap out of me is that the gun nuts take the 2nd A (thanks to asshole Scalia's ridiculous reading of 18th century grammar in DC v. Heller), which is obviously intended for collective protection in lieu of a standing army, and warp it to mean an  individual right.  And many of these same people reject the idea of a living constitution in other areas

    At any rate, this is not about slavery.

    Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

    by dizzydean on Sat Jan 19, 2013 at 06:30:33 AM PST

    [ Parent ]

    •  individual versus collective rights (1+ / 0-)
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      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      what of the 8th and other amendments that mention neither "rights" nor "people."  
      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
      who's rights does that discuss?  here's the 9th, the kick-assest of them all:
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
      rights retained by the people.

      why is the right assumed to be for individuals in all amendments but the second? what is a militia but a collection of armed individuals?

      Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

      by Cedwyn on Sat Jan 19, 2013 at 07:01:36 AM PST

      [ Parent ]

      •  Hi Cedwyn, Well, I think if you look at (2+ / 0-)
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        Christy1947, Cedwyn

        the text of the 1757 Militia Act, you see a collective responsibility--it was something being imposed on the people, whether they liked it or not, with penalties attached if they did not show up (which had been the case since the formation of the musters back in the later Middle Ages).  From the link I had in my first post to the VA version:

        And be it further enacted, by the authority aforesaid, That every person so as aforesaid inlisted (except free mulattoes, negroes, and Indians) shall be armed in the manner following, that is to say: Every soldier shall be furnished with a firelock well fixed, a bayonet fitted to the same, a double cartouch-box, and three charges of powder, and constantly appear with the same at the time and place appointed for muster and exercise, and shall also keep at his place of abode one pound of powder and four pounds of ball, and bring the same with him into the field when he shall be required: And if it shall be certified to the court of any county, by order of the court-martial, that any soldier inlisted in such company is so poor as not to be able to purchase the arms aforesaid, then such court shall, and they are hereby required, immediately to depute some person to send for the same to Great Britain by the first opportunity, and to levy the charge thereof in the next county levy; which arms so to be sent for shall be marked with the name of the county; and if any person shall presume to buy or sell any such arms, so provided as aforesaid, then, and in such case, every person so buying or selling shall forfeit and pay the sum of six pounds, to be recovered, with costs, by information, before the court of the county to which the arms shall belong, or in the court of the county wherein the offender or offenders shall reside, one moiety whereof shall be to and for the use of the county to which the arms shall belong for the purchasing other arms, and the other moiety to the informer: And all arms purchased by any county and delivered to any poor soldier, as aforesaid, shall, on his death or removal out of the county, be delivered to the chief officer of the militia in the county, or to the captain of the company to which such poor soldier did belong, to be by such officer delivered to any other poor soldier that the commanding officer of the said county shall adjudge unable to provide himself with arms, as aforesaid.
        Note that it is the responsibility of the individual to purchase a specific type of weapon, with specific accoutrements.  If one is too poor, then there is a mechanism to provide a weapon to that person, but the weapon still belonged to the state.  

        And if you did not show up to muster?

        And be it farther enacted, by the authority aforesaid, That it shall and may be lawful for the field officers and captains of every county, or the major part of them, whereof the county-lieutenant, colonel, lieutenant-colonel, or major, shall be one, and they are hereby required to meet at the court house of their counties respectively, the day next following the general muster in September or October every year, if fair, if not, the next fair day, then and there to hold a court martial, which court shall have power to adjourn from day to day, and to enquire of the age and abilities of all persons inlisted, and to exempt such as they shall adjudge incapable of service, and of all delinquents returned by the captains for absence from musters or appearing without arms, powder, or ball; and where any person is returned a delinquent to a court-martial and shall not be able, by reason of sickness or other real disability, to attend such court to give in his reasonable excuse for such his delinquency, it shall and may be lawful for the succeeding court-martial to be held for such county, city or borough, wherein such person shall be returned a delinquent, upon such reasonable excuse then offered, to remit such fine or fines levied by the proceeding court-martial on such person; and such court shall and may, and they are hereby impowered to administer an oath or oaths to any person or persons for their better information in the premisses, and to order the fines inflicted by this act, not otherwise directed, to be levied upon all delinquents who shall not make out some just excuse, for not performing their duty, and to order and dispose of all such fines for buying drums and trophies for the use of the militia of the county, and for supplying the militia of the said county with arms:
        And what was being done at these musters?
        And for the better training and exercising the militia, and rendering them more serviceable, Be it further enacted, by the authority aforesaid, That every captain shall, once in three months, and oftner if thereto required by the lieutenant or chief commanding officer in the county, muster, train, and exercise his company, and the lieutenant or other chief commanding officer in the county shall cause a general muster and exercise of all the companies within his county, to be made in the months of March or April, and September or October, yearly; and if any soldier shall, at any general or private muster, refuse to perform the command of his officer, or behave himself refractorily or mutinously, or misbehave himself at the courts martial to be held in pursuance of this act, as is herein after directed, it shall and may be lawful to and for the chief commanding officer, then present, to cause such offender to be tied neck and heels, for any time not exceeding five minutes, or inflict such corporal punishment as he shall think fit, not exceeding twenty lashes.
        Notice the idea of DUTY here.  The point is to MAKE individuals have specific weapons, show up for training and act accordingly.  If one did not perform this duty, one was subject to penalties.  

        That's what makes this collective.  None of the other amendments in the Bill of Rights imposes a duty on individuals--they are all intended to preserve the rights of the individual from the abuse of power by the government (focusing again on many problems that occurred in 17th century England).  

        That's the importance of this whole discussion of what a militia was and why that clause should be the driver behind the 2nd Amendment.

        Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

        by dizzydean on Sat Jan 19, 2013 at 07:22:31 AM PST

        [ Parent ]

        •  And to follow up on this (2+ / 0-)
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          Christy1947, Cedwyn

          the "right" in the Second Amendment was to have an appropriate weapon be a part of a militia.

          Going back to the English Bill of Rights (1689), one of the rights that William and Mary had to accede to had to do with having arms for the citizenry so that there would be no standing army:

          And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare...

          That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

          That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;  

          Notice "as allowed by law".

          So, the right is firmly rooted in the collective responsibility of being a part of a militia so that there are no standing armies.

          But what about weapons that are not specifically for the use within a militia?  That's where US v. Miller comes in:

          In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
          What about that phrase, "the people" you put so much emphasis on?  Justice Stevens' dissent in DC v. Heller clears that up (Scalia's opinion is such a hash, it's not worth looking at):
          Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

          As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials.    It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment. For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment. Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity.

          By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

          There's your difference.  And when the day hopefully comes that one of the group of conservative judicial activists leaves SCOTUS and gets replaced with someone more like Kagan or Sotomayor, I guarantee you that DC v. Heller gets thrown out.

          Buck up--Never say die. We'll get along! Charlie Chaplin, Modern Times (1936).

          by dizzydean on Sat Jan 19, 2013 at 08:43:40 AM PST

          [ Parent ]

    •  Yes, it's about militias (1+ / 0-)
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      Not the right of an individual to start his own "non-regulated" militia to patrol a gated community in Florida or to set up a training camp for insurrection in Northern Michigan, which is what is going on right now.

    •  May have time to write tomorrow but... (0+ / 0-)

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