How the founders understood the Second Amendment

 Is totally different from it's current interpretation, but this is something I have gone into ad nauseum.

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Virginia Declaration of Rights, 1776--written by Thomas Jefferson.

Pretty much all the quotations taken out of context by people who want to trash the Constitution in the name of "original intent" point to this being the concern. Far more primary source material backs me up.

For example, if one actually reads the speech where patrick Henry says "The great object is that every man be armed. Everyone who is able may have a gun."

On the other hand, this is the actual speech:

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot’s Debates 384-7)
Virginia, Saturday, June 14, 1788.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Note that Henry says:
To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.”

This is an exact quotation ofThe United States Constitution, Article I, Section 8, clause 16, https://constitution.congress.gov/browse/essay/artI-S8-C16-1/ALDE_00013673/.  The current interpretation of the Second Amendment wouldn't do very much to stop violation of the Second Amendment by Congress's interpretation of it in the above cited article.

In fact, the founders would find current the US Military to be far more of a violation of their intent in the Second Amendment as exemplified by the Henry and Jefferson.

Furthermore, there is no Constitutional authority for Judicial Review.

That comes from the case of Marbury v Madison, 5 US, 1 Cranch 137 (1803). Marbury v Madison, which also deals with clauses in the Constitution:

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

  So, the US Supreme Court has decided that the first part of the Second Amendment is "mere surplusage" despite the word that a "Militia" is "necessary to the Security of the Free State".

Then I say why not ignore the rest of Marbury v Madison since some of the complaints of the revolting colonists concerned the abolition of legislatively enacted laws by an unelected official:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

The Justices would do well te remember that they are not acting under authority of the US Constitution, or US History, when they abolish gun laws using a misnterpretation of the Second Amendment.

Defund the Police, Get a Kyle Rittenhouse

 Art. 12. La garantie des droits de l'Homme et du Citoyen nécessite une force publique : cette force est donc instituée pour l'avantage de tous, et non pour l'utilité particulière de ceux auxquels elle est confiée.

XII. A public force being necessary to give security to the rights of men and of citizens, that force is instituted for the benefit of the community and not for the particular benefit of the persons to whom it is intrusted.

Déclaration des Droits de l'Homme et du Citoyen de 1789

What Kyle Rittenhouse did was wrong. That is travelling to another jurisdiction to "preserve the peace". He was lucky that he wasn't shot by the actual militia, or National Guard (US Constitution, Article I, Section 8, Clauses 15 & 16), for being on the street with a weapon.[1] On the other hand, I understand why he did what he did.

The Document that I quote above is contemporary to the US Constitution and is equally influential on the Constitutions of other nations beside France and former French Colonies.  There are parallels between the two documents, but the most important piece of the Constitution tends to be neglected. That is the preamble. In other laws, there is a statement of purpose, or why the document was adopted. The US Constitution states it was adopted for the purposes of:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 

The Second Amendment of the US Constitution DID NOT repeal previous sections of the Constitution, which describes the roles of  the militia as:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

And while the uneducated like to claim membership in the militia as members of an "unorganised militia", that is the equivalent to saying that being subject to the draft makes one a member of the US Military. In other words, the "unorganised" miltia is a body which can be called into service under the call up provisions of state laws. Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615, 1886 U.S. LEXIS 1760 (1886) addressed this issue:

The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject. It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

What happened in Kenosha is a very good example of how the Second Amendment has been taken out of context. Yes, when the official forces are unable, or unwilling, to keep order, somebody has to step in. Likewise, I wouldn't convict someone for defending their home as was the case with the McCloskeys. On the other hand, Kyle Rittenhouse was walking around openly carrying a weapon: he could have been the victim of the REAL militia had they been on the scene. As is, he was an untrained civilian in a situation which was way beyond his abilities.

His heart was in the right place, but his head was up his ass.

Unfortunately, he is a symbol of the "armed civilian" using a weapon for "self-defence". But Kenosha burned with or without Kyle Rittenhouse. 

The reality is that people saw the police as either unwilling or unable to control what was happening in US cities, but the issue here isn't the Second Amendment: it's that the US is a failed state. It's the Soviet Union on life support.

BTW, unless your militia was created by act of congress: it is not a true constitutional miltia (Article I, Section 8, Clause 16). The Second Amendment does not create the militia, it only ensures its viability. But the fact that there is a large standing military establishment shows that the Second Amendment is a victim of desuetude and should be repealed.

Footnote:

[1] Some US Jurisdictions have laws similar to this one from Pennsylvania: 18 PA.C.S. 6107, Prohibited Conduct During an Emergency, “No person shall carry a firearm upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is: (1) Actively engaged in a defense of that person’s life or property from peril or threat. (2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).” 

BTW, Before you go around saying that your militia is somehow acceptable, be sure to check out your state constitution for provisions like this from Pennsylvania's State Constitution:

     § 22.  Standing army; military subordinate to civil power.
        No standing army shall, in time of peace, be kept up without
     the consent of the Legislature, and the military shall in all
     cases and at all times be in strict subordination to the civil
     power.

Also be aware that primary sources relating to the adoption of the Second Amendment also are replete with similar language to this.

See also:

• Mother Jones: Why the Law Turns a Blind Eye to Militias
• NPR: The Legality Of Private Militias 
• Militias are Unlawful in Colorado
  
• Fact Sheets on Unlawful Militias for All 50 States Now Available from Georgetown Law’s Institute for Constitutional Advocacy and Protection
  

Why militias sound good in theory, but don't work in fact.

One of my ancestors was a member of the Pennsylvania Militia during the War for American Independence. He was in it from the start and was at Valley Forge and Morristown. But he's not on the records for Valley Forge.

Why?

Probably because as the youngest son he went AWOL to tend the farm back in Lancaster County (Older Brother is on the NPS records at Valley Forge. We've been trying to get Younger bro on the NPS records).

The Militia system means that most males between 18-50 were supposed to serve. But it's hard to do for a few reasons. Somebody has to tend the farm in an agrarian economy (or keep shop). Toss in people want exemptions, and can get, from service. The rich would buy their way out of serving, which led to Conscription Riots during the US Civil War.

Anyway, It's significant that my ancestor was part of the Pennsylvania Militia There is a lot of mythology in the minds of most Americans that surrounds the Revolutionary War. One of These is the myth that Continental soldiers underwent unspeakable hardship for want of clothing and provisions, but persevered only to win the war against all odds. It wasn't exactly like they were grinning and bearing it.

As early as 1777, General Anthony Wayne, commanding the Pennsylvania Line, exhorted his superiors to address the lack of supply for his men. In a letter to Washington in December, 1777, he refers to the “Distressed and Naked Situation of your Troops.” While the Pennsylvanians faced the cold of Valley Forge during the winter of 1777-1778, Washington constantly wrote the Continental Congress pleading for an amelioration of the army’s condition. The following is an excerpt from a letter dated 23 December, 1777 from Valley Forge:

I am now convinced beyond a doubt, that, unless some great and capital change suddenly takes place in that line, this army must inevitably be reduced to one or other of these three things; starve, dissolve, or disperse in order to obtain subsistence in the best manner they can. …Since the month of July we have had no assistance from the quartermaster-general…

Whatever shortages were created by a fledgling wartime economy were compounded by government corruption and ineptitude. In writing Congress, Washington accused the quartermaster-general of corruption and sought his removal. Anthony Wayne made similar accusations in letters to the Pennsylvania executive council. In January, 1778, Wayne wrote that, after buying cloth at his own expense, the government stalled his efforts to have uniforms produce.

There is a reason Article I, Section 8, clause 16 of the Constitution requires that the feds "provide for organizing, arming, and disciplining, the Militia". The Continental Congress under the Articles of Confederation wasn't doing a great job of running the War (there is an aside here that the war was an idiotic idea to begin with since the British Taxes were imposed to pay in part for the French and Indian War, which was started by Washington).

Anyway back to the Story, the discontent of the Pennsylvania Militia really began to show in November, 1780, when the Continental Army went into winter quarters in camps that were dispersed in New York, Pennsylvania, and New Jersey.  The Pennsylvania Line was living in the log huts that had been used by the Connecticut Line the previous winter. Major-General Arthur St. Clair, the senior officer of the line, was nice, warm and comfy in Philadelphia, a practice not uncommon for senior officers. On the other hand. the 2,473 Pennsylvania officers and men at Mount Kemble made up eleven regiments of infantry and one of artillery. The winter was mild and the huts were about as comfortable as log huts can be, but clothes, food, and pay were in short supply.

In mid-December, Brigadier-General Wayne wrote to Joseph Reed, President of Pennsylvania’s Supreme Executive Council:

we are reduced to dry bread and beef for our food, and to cold water for our drink. . . . Our soldiery are not devoid of reasoning faculties, . . . they have now served their country with fidelity for near five years, poorly clothed, badly fed, and worse paid; of the last article, trifling as it is, they have not seen a paper dollar in the way of pay for near twelve months.

A year.  I challenge anyone to work any job, let alone endure the harsh life of a Continental soldier that long without pay and not want to revolt. But not being paid was only part of the complaints.

Another major issue arose because the Executive Council planned to consolidate several regiments of Pennsylvania Line effective 1 January 1781.  Many soldiers had enlisted in 1777 under the somewhat confusing terms of “for three years or the duration of the war.” Focusing on the first clause, “for three years,” some soldiers believed that the reorganization would conclude their enlistments.  But the regimental officers focused on the second clause, “or the duration of the war,” and denied the soldiers’ requests for discharge.

Think of my ancestor going AWOL to tend the family farm during the Valley Forge winter.

Anyway, the shit hit the fan on the First of January 1981 with one of the largest revolts the Continental Army had faced (it would face many mutinies due to an inability to properly supply and pay the troops).  But unlike the previous mutinies, the size of this one presented more than disciplinary problems.  The Continental Army could ill afford to have so many soldiers exit the ranks.  Worse, for all the American commanders knew, the mutinous group could “turn Arnold” and join the British forces that were only about 20 miles away near New York City. British General Clinton sent emissaries to see if the Pennsylvania Troops could be turned against the Continental cause.
 
Wayne sent two officers speeding to Philadelphia to alert Congress and the Executive Committee and dispatched an aide-de-camp to inform General Washington, who was at the army camp at New Windsor, New York.  In his return letter, Washington approved of Wayne’s actions and directed him to identify the mutineers’ grievances for Congress to address.  Washington was also concerned that the mutiny could spread to other units and stayed put to keep a lid on things at New Windsor.

On January 8th, Reed and the Board reached an agreement; a committee would review the enlistment of each soldier and discharge those eligible.  Also, the men would receive proper uniforms as well as warrants for their back-pay that Pennsylvania would honour as soon as it could raise the money (note: these were IOUs, not real payment, something that would cause more problems later on).  The next day, the mutineers marched to Trenton to begin executing the settlement’s provisions.  The mutiny was over, but not fully resolved by a long shot. There would be another one by the Pennsylvania Militia that May as well as many, many more which culminated in Shays' Rebellion and the adoption of the US Constitution.

The mutiny was a wake-up-call to the Pennsylvania Line on its lack of professionalism, but the offenders were the officers, not the enlisted soldiers.  Except for the violence on the First of January, the mutineers conducted themselves with an impressive level of discipline.  They kept a strict military camp at Princeton and gained the support of the local population.  The soldiers also promised to fight under Wayne in the event of an enemy attack.  And as soon as the negotiations ended the sergeants handed British General Clinton’s emissaries, Mason and Ogden, over to the Congressional committee, an act that Gen. Washington called, “an unequivocal and decided mark of attachment to our cause.”

Even with the problems shown by the militia during the War for Independence and other conflicts, the distrust of standing armies led to the system being given constitutional imprimatur in the Second Amendment. However the system was one which was disliked as the passage which is often misquoted points out. Here is the George Mason’s quote as recorded in the transcripts of the Virginia Ratifying Convention:

“I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.”

Unfortunately, the exclusion was common in Mason's time, as my ancestor, a poor, Pennsylvania farm kid would attest. Dislike for the Militia was pretty much what killed it off, as this passage from Joseph Story, Commentaries on the Constitution 3:§§ 1890 (1833) points out:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Like so many things that sound good in theory, but are unworkable. The militia system and the Second Amendment it was intended to protect, are not relevant to modern society with a large, professional military.

Which is not the poor, conscripted militia member that was the reality of the militia system. The founders militia never existed and they were fools to try and keep it as a constitutional entity.

BTW, kudos to Michael Schellhammer whose "Mutiny on the Pennsylvania Line" was a source for a lot of this. I think he understands what my ancestor was thinking when they did this.

See also:

• The Pennsylvania Line Mutiny, its Origins and Patriotism | Penn State
• Mutiny of the Pennsylvania Line - Journal of the American Revolution
• Carl Van Doren  Mutiny in January 
• How Shays’ Rebellion Changed America

Why DC v Heller (and McDonald v Chicago) is wrong

OK, I would shut up about this if my only complaint was related to the ability to regulate firearms. I have pointed out that these decisions do not act as a block to regulating firearms. In fact, they are highly regulation friendly. That is something I have talked about ad nauseum in the past.

Since that has been previously addressed, I will deal with the actual reasons these decisions were bad law.

First, they are historically inaccurate. I am not really going to cover this here since that would be a whole post in and of itself. The bottom line of that one is that the Amendment relates to the distrust for a standing army and bloated military establishment.  More than enough evidence for that in Anglo-American political history which is something that would have shown up if Scalia and Alito had bothered to have done their research.

Second, it removes the Second Amendment from the Constitutional Context and makes it a non-sequitur.  Not enough attention is paid to the preamble of the US Constitution here. That is important since it gives a hint what the intent of the founders happened to be when they drafted the Constitution.

The founders make it clear that the Constitution is supposed to address matters of the common defence. No where in the constitution is the concept of self-defence or personal defence addressed. It is a well known legal principle that if a text is silent on something one cannot infer that it is addressed by the law.

Furthermore, Article I, Section 8, Clause 16 gives Congress, and Congress alone, the power to:

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;

It was the power to arm the militia that concerned the founders given the distrust of standing armies. Again, there is Constitutional history here in that the Federal Government had a professional army, while the states had their militias.  It was a fear that the militias would be frustrated by Congress not funding them.

Instead, the militias died from lack of interest. But I've covered that elsewhere as well.

Since the Second Amendment relates to Federal power under Article I, Section 8, Clause 16, it cannot apply to the States. That makes the McDonald decision a legal absurdity.

Third, The Heller decision acted as if it was a case of first impression, which it was not. That means the Heller and McDonald decisions were a violation of stare decisis.

While, Marbury v Madison did not relate to the Second Amendment, it did address Constitutional language and said that no clause in the Constitution was without meaning.  Of course, given Marbury's significance, perhaps we can ignore these examples of poor judicial decisions (Heller and McDonald).

Which gets to the two 19th Century Second Amendment decisions: US v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886).

Cruikshank is short, but not really helpful because of that:

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

It shows that the 19th Century lawyers were more aware of the relationship of the Second Amendment to Article I, Section 8, Clause 16. Which takes us to Presser. That is a decision I've mentioned before. It is one which is probably the best for deciphering US v. Miller, 307 U.S. 174 (1939). Presser addresses he "unorganised militia" argument, and it made clear that the Second Amendment related to only the organised militias, which is now the National Guard (see Perpich v. DOD, 496 U.S. 334 [1990]).

Miller is problematic in that its style runs counter to how most people read judicial decisions. Its holding was most likely this paragraph:

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.[1]

However it is unclear without the words "we hold" that this would be the holding, but it would logically be the holding. Secondly, the decision goes through the reasoning it came to this conclusion. The Miller decision then goes on to discuss Congress power to arm the militia. it then states that:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.[2]

That sentence directly contradicts the Heller and McDonald cases. That is because it makes clear that both clauses are necessary for interpretation of the Amendment. Even more importantly, it makes it clear that the Amendment only applies to the organised (active) militia.

Finally, since these decision would amend the constitution by neglecting an important part the text and change the meaning of the amendment. That would make the decisions ultra vires, or outside the power of the court. Unfortunately, the US Constitution does not provide for a cure for one of the branches acting outside their powers or failing to act.

So, that leaves us with bad law on the books. Fortunately, one doesn't have a problem with regulating firearms. In fact, I would suggest ignoring the two risible decisions and going toward strict regulation of firearms. After all, the two unconstitutional decisions only apply to a ban on handguns in the home.  That means firearms regulation is wide open otherwise. And both Heller and McDonald made it clear that regulations were acceptable.

Which is why there hasn't been too much complaint about these decisions from the "anti-gunners".

[1] Aymette said: " To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive."

[2] See Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972). Douglas was a member of the US Supreme Court when Miller was decided and glosses that case in the dissent.

See also:

• The Second Amendment Does Not Transcend All Others

Unorganised Militias--Ignorance isn't bliss: It's annoying

It's really amusing to watch people who have no knowledge of how law works quote things they really don't understand. This is easily refuted by showing it to be an ignorant comment.  In this case, I am talking about 10 USC §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.

The notion of an "unorganised militia" should clue you in that this might not be a body with any legal rights. In fact, it is a legal fiction used to keep the concept of the militia being an universal obligation, which it never really was anyway. This is pointed out in something which is usually incompletely quoted and taken out of context, George Mason's speech from 3 Elliot's Debates 425-26:

" I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."

The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained.  That is why they have a title that reflects something that is inactive.

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.

The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83

The term “unorganised militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganised militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

The Militia was never a truly universal service. It died a death from a lack of interest in participation as was pointed out by Joseph Story, in Commentaries on the Constitution 3:§§ 1890:

"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."

The death of the Universal militia appears to be predicted by Mason in the quote above.  In fact, one can argue that the militia as an institution was pretty much dead on arrival since Adam Smith said in his Wealth Of Nations that, "This distinction being well understood, the history of all ages, it will be found, bears testimony to the irresistible superiority which a well-regulated standing army has over a militia. "(Book V, Chapter 1.22 Of the Expence of Defence).

To merely quote 10 USC §311 shows a decided ignorance of how this section of the US Code works since the sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia has always been under the purview of the states. One needs to go to the various states' call out provisions to see that this is a reserve body--it is akin to having a draft card.

Here are a couple of examples, Alabama Code - Section 31-2-48:

The Governor shall, when ordering out the unorganized militia, designate the number. He may order them out either by call for volunteers or draft. The unorganized militia may be attached to the several organizations of the National Guard or Naval Militia, or organized into separate divisions, brigades, regiments, battalions, companies or detachments as the Governor may deem best for service. He shall appoint the commissioned officers and warrant officers in the same manner as provided in this chapter for the appointment of officers and warrant officers of the National Guard and Naval Militia.

Indiana Code - Section 10-16-6-2: Classes of militia is more specific about how their unorganised or Sedentary militia is to be applied:

The militia shall be divided into two (2) classes, the sedentary militia and the national guard, as follows:
(1) The sedentary militia consists of all persons subject to bear arms under the Constitution of the State of Indiana who do not belong to the national guard.
(2) The national guard consists of those able-bodied citizens between the proper ages as established by this article who may be enrolled, organized, and mustered into the service of the state as provided in this article. The organized militia of the state constitutes and shall be known as the Indiana national guard.
As added by P.L.2-2003, SEC.7.

The law also makes it clear that:
(a) The Indiana national guard consists of those units:
(1) specified by:
(A) the Secretary of the Army; and
(B) the Secretary of the Air Force; and
(2) approved by the governor.

The Alabama law isn't as clear that one needs to actually be enrolled, but they are allocated as the governor deems them necessary.  These are a couple of examples, but one needs to look to state law for how the unorganised militia is actually handled.

The Unorganised militia is something of a conceit to say that there is the possibility of universal militia service with the unorganised militia serving as a draft pool should the organised militia not have enough manpower.

This is a simplification of the issue, but the current national guard, which is the militia, is not a universal force.  Also, you need to actually be a member of the National Guard to actually claim that you are a member of the militia.  And that Constitutionally is the only body that can call itself a militia since it is the only one which is organised under Article I, Section 8, Clause 16–which is the relevant section of the Constitution for that purpose, not the Second Amendment.

The bottom line is that if you are going to make the argument that being a part of the "unorganised militia" in some way gives you rights, then pant shitting, draft dodging Ted Nugent should be considered a Viet Nam era veteran since he was subject to the draft (and given various deferments).

See also

• Legal Basis of the National Guard

More on the Unorganised Militia

Usually, you get someone pointing to 10 USC §311(b)(2) and saying they are part of the Unorganised Militia.  Unfortunately, this section of the Code doesn't give a gloss on what exactly this means, but I have gone into it before in other posts: Asked and Answered--Unorganised, Sedentary, reserve, etcetera militias explained and Still more on the Unorganised Militia..  Basic info being:

The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)--in other words drafted from the Unorganised militia draft pool.

The term "unorganized" did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856." - Mahon, John K, The History of the Militia and the National Guard, p. 83

The term "unorganized militia" was kept in use in subsequent decades as a statutory "reminder" that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the "unorganized militia," the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise. 

Of course, legal method would tell you that there might be another part of the US Code that addresses this issue.  In fact, Title 10 is the Section of the US Code that covers the Armed Forces and there are sections that further elaborate on this topic.  10 USC Chapter 1003 - Reserve Components Generally--specifically addresses who the national guard happens to be:

10 USC 10101
The reserve components of the armed forces are: (1) The Army National Guard of the United States. (2) The Army Reserve. (3) The Naval Reserve. (4) The Marine Corps Reserve. (5) The Air National Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.

10 USC 10105 - Sec. 10105. Army National Guard of the United States: composition
The Army National Guard of the United States is the reserve component of the Army that consists of - (1) federally recognized units and organizations of the Army National Guard; and (2) members of the Army National Guard who are also Reserves of the Army. 

Also 10 USC § 312. Militia duty: exemptions, addresses who exempt from service in the militia. 32 USC § 313 deals with who can enlist to serve in the militia.

As I have said before, you need to actually be a member of the National Guard to actually claim that you are a member of the militia.  And that Constitutionally, the only body that can call itself a militia is one which is organised under Article I, Section 8, Clause 16--not the Second Amendment.

See also

• Legal Basis of the National Guard

Pride and Prejudice...and THE MILITIA!

Written by Laci the Dog

Yeah, we're talking the Jane Austin Pride and Prejudice where the Bennet girls become friendly with militia officers stationed in the nearby town.  The militia is leaving town, which makes the younger, rather man-crazy Bennet girls distraught. Lydia manages to obtain permission from her father to spend the summer with an old colonel in Brighton, where one of the officer's regiment will be stationed.

The subplot of the militia in Pride and Prejudice is a  constant throughout the novel. Though members of the militia were only  required to train for twenty eight days of the year, they were often  thought to be superior patriots and were generally held in high regard.  The militia served as England's standing army of reserve troops; during  the the late Georgian and the Regency eras.  Their purpose was to defend  Britain in case of a French invasion. When Pride and Prejudice  was written, Britain was on the verge of war with France and eventually  became involved in the Napoleonic Wars, therefore Austen's inclusion of  officers in Pride and Prejudice merely accurately reflected the perception of the militia at the time.

Since training lasted only twenty eight days of the year, Lydia's  expectation that Colonel Forster would host a ball in Meryton was not  unrealistic at all, and given the lack of conflict on British soil  combined with widespread respect for the patriotic militia officers,  their presence at such social events was probably commonplace. Indeed,  in Pride and Prejudice the absence of the militia greatly  affected Elizabeth in that "parties abroad were less varied than before;  and at home she had a mother and sister whose constant repinings at the  dulness of everything around them, threw a real gloom over their  domestic circle". Essentially, the absence of soldiers did  not affect the safety of the surrounding area of their former camp, but  the social life.

Wickham's position as an officer in the militia and a gentlemen allows him  to escape from paying his debts for quite awhile, but when Mr. Gardiner  and Mr. Bennet must finally research his debts, it is found that he has  many "debts of honor"to other officers, and that he was a  "gamester". Such debts demonstrate the laxity of the volunteer  military atmosphere and the culture of the military regiments, the  greater implication being that many militia men are involved in  gambling, and that Wickham is one of the few who dishonorably ignore his  debts.

Of course, the role of the militia is much more interesting in the later versions of Pride and Prejudice--Pride and Prejudice and Zombies and Pride and Prejudice and Zombies: Dawn of the Dreadfuls where the militia proves useful in combatting the dreadfuls (otherwise known as zombies).  That and the Bennet girls ladylike martial arts abilities.