The 2nd Amendment, Militias, and the threat of secession.

Great Debates
1

I’m just gonna throw this out there as a separate thread because it doesn’t seem to fit anywhere else, and I found it an interesting question, especially since another thread in GD is suggesting that the SC decision yesterday threatens the republic.

One of the reasons many are upset with the ruling is that even the four dissenting justices regarded the 2nd amendment as dealing with an individual right: not one of the 9 justices gave any creedence whatsoever to the idea, held by many armchair jurists, that the 2nd amendment referred to state militias. That idea seems now dead and buried. But before it’s completely forgotten, I’d like to hear opinions on a thought experiment I came across today: what if that view had prevailed?

If the right to bear arms was indeed a state right, uninfringible by the federal government, it would seem to mean that states had the right to erect militias apart and distinct from the US military. This would not be the National Guard, whose very name shows whose ultimate authority it is under. Rather, it would be a 100% state controlled, organized and equipped force. Under a states-rights reading of the 2nd amendment, if Alaska or Wyoming or Alabama wanted to have a assault-rifle-in-every-home militia along the lines of Switzerland or Israel, there’d be little Washington could do about it. Indeed, since militias in the times of the framers had cannon when and where they could, those State Militias would be free to have heavy arms.

Of course, Washington could try withholding federal funds … at which point the state might refuse to pay federal taxes, at which point … well, you see where this is going. All kinds of things come onto the table.

As one who would prefer that we be a looser confederation, the idea of states having independent military power does not alarm me the way it does others. But I understand most people are quite attached to the “Washington owns all the tanks” model.
So, then, the debate. Which is a greater threat to the republic: a nationwide citizenry with limited and regulated small-arms ownership, or state militias without oversight from the federal government?

2

c) Neither is a threat to the Republic. Men with ideas are dangerous. Weapons are merely hardware.

3

I’ll never understand why libertarians think that state governments are their knights in shining armor, if only they could cabin that pesky federal government a little more.

State governments are elected and populated by the same people who elect and populate the federal government. There is no fundamental divergence in worldview. Juneau, Cheyenne, and Montgomery do not see Washington as the enemy; they see each other as colleagues. There would be no skirmishes even if Governors Parnell, Freudenthal, or Riley had unencumbered command and control over their National Guard components. There certainly would be no universal gun-ownership requirements of the kind you’re imagining. I mean, do you really think the only that has kept Governor Quinn from mobilizing the Illinois State Police against the Dirksen Federal Building is federalism?!?

In other words, while libertarians have been concocting these fever dreams of John Locke and V for Vendetta, they’ve apparently failed to notice that nobody particularly wants to vote for them. There’s a lesson to be learned in that latter fact.

4

Armed men with ideas are more dangerous then unarmed men with ideas if they feel that being armed partially validates their ideas.

5

The Second Amendment indisputably refers to state militias. It’s in the text, explicitly.

The only question about that is whether the second part of the construction is implied to be situationally dependent on the first–that is, did the Framers intend us to understand that, should we no longer find a well-regulated militia to be necessary to the security of a free state, it would necessarily follow that the right of the people to keep and bear arms could then be infringed.

I do not agree with that interpretation. The Constitution was meant to say what it says, and it says what it was meant to mean, and if we find that circumstances warrant different rules, the procedure for change is spelled out.

It was not. The Constitution deals in rights and powers at three levels: the United States, the several States, and the People. Bearing arms is specified as a right of the people.

6

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.

See the part that says ‘shall not be infringed’, that refers to ‘the right of the people to keep and bear Arms’. The only other interpretation is that we can’t infringe on the necessity of a well regulated militia to secure a free state. I’ll take the first, and clearly more reasonable interpretation.

A greater danger than an individual right to bear arms is ignoring parts of the Constitution that you don’t like. Amend the Constitution if you want it to say something different.

7

You know how republicans and democrats have different ideas?

And a lot of times, one state will be predominately one or the other. If more power was vested in the states, and less in the federal government, states would be able to implement the ideas of their parties, rather than stalling out on a federal level.

What’s your odd aversion to people governing locally, rather than federally? Why should people in NY or LA have say on how Podunk, ND is governed, or visa versa beyond the most very basic of human rights assurances?

8

The first. Much of the point of the fetishization of guns is the successful attempt to convince people that they can and should give up every other right in the name of keeping their guns. And in a genuine collapse to fascism, having all those right wing gun fetishists means you have plenty of raw material for death squads. I fully expect that the majority of people who support the Second Amendment would cheerfully and bloodily support a dictatorship that promised them guns.

Because it hurts the entire country and violates my moral code to, for example, let a state deliberately miseducate its children so they are all neonazi theocrats. And because it promotes corruption; a state or city is easier for a single corporation or church to take control of. And because in the real world that sort of thing is overwhelmingly what “states rights” are about; it’s always about implementing some sort of bigoted, fanatic agenda; anything from slavery way back when, to these days attempting to legally enshrine the “right” to beat children or to discriminate against blacks or women or gays. In the end, it usually DOES boil down to a desire to violate those " human rights assurances"; violating humans rights has always been most of the reason for the push for “states rights” from the beginning.

9

First, I reject your supposition that some states are predominantly Republican or Democrat. That’s an easy crutch for armchair policy wonks, but there are Democrats in the Governor’s Mansion in Wyoming and even a Republican on the Chicago City Council.

This goes to my essential point: that far from being averse to governing locally, I think, pace the libertarians, it won’t go quite the way they think—those same voters who elect your hated federal government will also elect your state government and your local government. Political party strength differences in different parts of the country are talked about so much not because there are clusters of Republicans here and entrenchments of Democrats there. It is talked about so much because of what Freud called the narcissism of small differences. Texas and Massachusetts are lot more alike than they are different, and where they differ it is on those small quirks that human beings love to fixate on (and that the media loves to report on to generate quick cash on a cheap and evergreen story).

This is why the prophesied breakaway republics of the OP have not come to pass: not because of any doctrine of federalism or the separation of powers, but because the view from NYC ain’t all that different from the view from Bismarck and neither one is ready to call it quits. A stubborn fact that is reaffirmed every time Americans all over the country go to the ballot box and vote for the peaceful continuation of the republic and spurn the perennial libertarian/separatist fringe.

10

Armed men with no ideas are the most dangerous of all.

11

“Well regulated???” What the heck does that mean???

12

Its easier for a single church or corporation to influence, but it’s also easier for an individual to influence their government – and that’s a good thing.

And your argument that states rights are “all about” violating basic human rights is patently incorrect. Its also about allowing people to smoke pot, or fuck hookers, or drink booze, or anything about they want. It has been, in the past, used as an argument against integration and slavery, but then biology has been used as an argument for eugenics, that doesn’t mean we stop looking into biology.

13

In 1700s parlance, “well working,” a well regulated watch is a watch that works well.

14

No, it’s a bad thing because that’s only true for extremely rich individuals.

Nonsense. The moment anything like that comes up, the “state’s rights” crowd suddenly decides that the federal government does indeed have the right to step in.

15

If you’re ever in St. Louis, the beer’s on me.

16

Not in the Federalist Papers #29:

“Regulated” clearly meant under the control of the government

17

Both meanings of regulated can be used in their respective places in that sentence and have a different meaning than what you interpret it to be.

Example:

“If a well-regulated (orderly, diciplined, organized, proficient) militia be the most natural defense of a free country, it ought certainly to be under the regulation (under the control of) and at the disposal of that body which is constituted the guardian of the national security.”

18

My point is that at the time of the framing of the Constitution, there was not one, unambiguous definition of “regulated”, though those who wish to interpret the second amendment as a suicide pact find it useful to trot out that definition as if it was.

19

No, only the extremely rich cado anything on the federal level. On the state level, moderately rich will suffice. :rolleyes:

The same problems you have at the state level, you have at the federal level, Der Trihs. How is it that making it federal magically makes it immune to corruption?

All it does is removes the ability of people to govern themselves, instead relying on the country as a whole to know what’s best for small segments. Let me tell you, first hand, having lived ia variety of places around this country, that what’s good in the country doesn’t work as well in the city, and the reverse applies as well.

In a city, restricting and prohibiting open carry of a firearm is understandable. In the some areas of the country (very rural), it’s an unsafe restriction of individual rights.

In some areas of e country, it may be considered obscene to have prostitution, on the other hand it seems to be alright on Nevada.

Nonsense. Im one of those states rights people, and ose are the issues (although not specifically or only) that Im referring to.

Or is it your case that you know better than i do what my opinions are?

Because that’s the generally accepted definition that fits with the most logical intention of the framers.

20

Article One, Section Ten of the U.S. Constitution details the sovereign powers the states agreed to cede to the Federal government. Given here with a few things highlighted:

Section 10, Clause 1 (Contracts Clause): No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Section 10, Clause 2 (Export Clause): No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

Section 10, Clause 3 (Compact Clause): No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Along with other provisions of powers granted to the Federal congress in the rest of Article One, a broad principle is clearly established: The Federal government is to have a monopoly on foreign relations, and especially the Federal government alone is to determine whether or not the states are conducting armed hostilities with a foreign power. Particularly pertinent is Clause 3’s ban on the states possessing “troops, or ships of war”. As hypothetical examples, it would be absolutely forbidden for the state of Texas to maintain an armed force with which it conducted drug or immigration raids across the border into Mexico; or for the state of Florida to have it’s own naval policy with regards to Cuba; or for any of the states on the northern tier of the US to use or threaten to use force against Canada. The point I wish to highlight here is that the states agreed to cede not just the right, but the actual capacity, to wage war against a foreign power. There would be one national army and one national navy. Here is part of Article One Section Eight, detailing various military authority granted to the Fed:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

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;

So if a state can be forbidden from keeping “troops” in peacetime, then just what exactly is the Second Amendment promising? In particular, if the 2nd talks about something called a “militia” in connection with the keeping and bearing of arms, than just what exactly is the difference between a militia and troops?

In every document contemporary with the Second Amendment that mentions the subject of the militia, the answer is clear and unambiguous: the militia is synonomous with the people, the mass of the populace, armed with their own privately held weapons; the posse comitatus that in times of emergency can be summoned to the common defense.

The confusion arises from the near-universal perception today that the militia was each states’ army, and that the Second Amendment protected a state government’s authority to possess armed forces, while leaving open the possibility that private citizens could be completely disarmed. When taking Article One Section Ten Clause Three into consideration, it seems to mean exactly the opposite: that given that under the letter of A1S10C3 the states could in principle be forbidden to possess ANY standing, professional armed force, that a non-professional armed populace that could be deputized or mustered at need was to be the guarantee of safety and order.

So can each state, or private citizens possess atomic bombs? Again, A1S10C3 points the way, with it’s ban on states keeping “ships of war”. If the purpose is to preserve the federal government’s constitutionally mandated monopoly on the power to wage foreign war, then the states- and presumably private citizens- can be forbidden to possess strategic weapons systems intended to project military power against a foreign nation. At a minimum, a modern extension of the concept of “ships of war” could be held to include armed aircraft and long-range missile systems.

It seems clear to me that the Federal government was to be the ONLY level of government that had a standing professional armed force. The states were to rely on armed citizens, who could be summoned on a purely temporary, mostly local scale. Because Article One of the Constitution gave the federal government a joint authority with the states to call out the militia, it was feared that either the federal government would use it’s authority to maintain a permanent civilian draft, or alternatively it would order the citizenry disarmed, leaving the states helpless to enforce local order and dependent upon Federal power for domestic security.

The first ten amendments to the Constitution, submitted as a body known as the BIll of Rights, were intended to forestall any possible interpretation of the powers granted the Federal government by the Constitution that could end up leading to a despotism. The purpose of the Second Amendment seems to me to be: notwithstanding that Article One Section Eight, Clauses Fifteen and Sixteen give the Federal government authority over the militia, this shall NOT be construed as to permit the Federal government to disarm the citizenry.