Cripes, people, we’re not talking about some antique act; it’s still in force today. Observe:
10 USC 13
Sec. 311 -The Militia
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 commissioned officers 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.
I cannot stress this enough: membership in the militia consists of ALL males age 17-45. And again I quote from Cecil’s column on the matter, which apparently I’ll have to keep on doing over and over and over:
And again, from a followup column:
If you think you can argue with Cecil, go right ahead and try; I agree with him entirely.
Garry Wills argues with Cecil. He debunks the myth of the heroic citizen militia quite effectively–it was the Continental Army that won the Revolutionary War, and the Framers were well aware of it. As for militia membership and gun ownership:
He goes on to quote Patrick Henry, who used “the dearth of guns as a reason for refusing to ratify the Constitution.” Henry told the Virginia ratifying convention:
And as for private gun ownership being a pillar of liberty, probate records from New England and Pennsylvania show that only 14 percent of men in those colonies had guns, and “53 percent of those guns were broken or unusable.”
Wills notes that “guns for both militias and the Continental Army were so scarce that George Washington fills page after page with laments for his inability to get them…” In short, and to put it mildly, private gun ownership was not widespread in the years before, during, or after the Revolution. Wills quotes the results of a study by Michael Bellesiles:
Nicely put, I think. And there’s lots more, which I’ll cite if you like. Suffice to say, though, that this is one of those rare, rare instances where Cecil is gasp wrong.
“Armor-piercing ammunition is already illegal.”
Wrong. Well, mostly wrong. In 1989 Brookhaven Town board (In Long Island) fought the NRA on the availability of armor piercing rounds to the public. The NRA’s position was the KTW bullets should stay legal because, “You cannot control the actions of people with the availability of objects”. Eventualy it went to court and the NRA won.
State and local law rule guns so I’m sure they are illegal some places, but not everywhere. Hell, you can even legally move illegal weapons through places that have banned them as long as you don’t take them out and show them around.
GAD: It IS true that the Continental regulars WON the war. But if it had not been for the Minutmen, GW would never have had the chance to organize & train his regulars. Militia are not supposed to win wars, they are supposed to hold off the enemy for a while while your army gets its act together, and after act as rear echelon troops. The Continental Militia did both, and if they had not, we’d be singing “God save the Queen” instead of Star Spangled Banner.
The Militia was also supposed to act as a preventative against Army Coups. Well, in over 200 years, it seemed to have worked. Now, I really doubt in the last 100 years if the Military would have done such a thing, but in the early years, thing were not so certain.
And GAD, it don’t matter a pile of poop what Wills thinks about how effective the Militia was, or how many guns there were. The Militia, no matter how effective it really was, was percived as a nessesity by the framers of the Constitution & Bill of Rights. And, they included evrey able-bodied, gun-owning male in it. Like it or not, thats the Law in this Country.
Okay, call me crazy, but did you, Gadarene, just post a series of quotes that included the following snippings:
Now, I don’t think I’m taking the above out of context. The above make it pretty plain to me that, if anything, the founding fathers lamented the lack of guns among the militia of ordinary citizens. The fact that gun owners were a minority did not mean that gun ownership was not desirable; indeed, it appears, from the quotes you cite, that the founding fathers felt that private gun ownership was extremely important.
Exactly what point were you attempting to make with this? I thought you were arguing the anti-2nd position.
And on the subject of “armor piercing” ammunition: despite the moaning and wailing over “cop killer” bullets, no police officer has ever been killed by an armor piercing bullet while wearing a bulletproof vest. Not one. Gee, I wonder what radical faction with an agenda invented the term “cop killer”…
Thank Max, great post The truth behind “cop killer” bullets? They were made up by an anti-gun Politician. You see, there was this Company that did make teflon coated bullets, for penetrating Kevlar vests. (these were ONLY the bullets, not the complete round) But they were designed for SWAT teams to use against malefators in armor, like what happened in LA. Thye were sold to Police Depts ONLY, on official letterhead, with confirmable phone. But that idiot Politician banned them, so the Police don’t have them when they need them. And you’re right, no cop was ever killed by one.
I hate to keep referencing Wills, but he’s got a whole section of his latest book devoted to deconstructing the minuteman myth. The militias generally fought well at the beginning (specifically Concord) and the end of the Revolution, much less so in between. Their prowess, however, was overstated because they fought best at home, in front of neighbors who “tended to exaggerate the contribution of the militia, playing down the achievement of the Continentals with whom the militia had fought the local battle.” This was in part because “the Continental Army was seen as a protector of the states, but also as their dominator.”
Wills also quotes Don Higginbotham’s War and Society in Revolutionary America:
Back to Daniel:
Yes, it’s been the militias that have stood in the way of military insurrection, lo these past two hundred years. The Civil War notwithstanding. Right. Let me get this straight–you’re arguing that were it not for militias, in all their current and former permutations, we’d’ve been taken over by the Army by now? Even though nowadays it’s some of the militias who want to insurrect against what they perceive to be an illegitimate government? Okay…
Dan, Garry Wills is a Pulitzer prize-winning historian. His research is meticulously supported by primary sources (among others, those Framers you’re always going on about). You can’t just say that “it doesn’t matter a pile of poop what Wills thinks”; you actually have to back up your argument with real facts*. There’s a difference between the theoretical and the actual. Theoretically, we’re all members of the militia. Actually, that has never been the case–not least because of that gun shortage you so quickly dismissed. You say “they included every able-bodied gun-owning male” in the militia. So since the Framers were intending the amendment to have practical applications–that is, it would apply specifically to whatever actual militias existed out of the theoretical militia–and since roughly one-fifth of able-bodied men owned guns, and fewer still knew how to use them, then the amendment was meant to address the shortage of armed militia members. I agree with that. What I don’t buy is that they intended every schmuck who wasn’t an active member of a well-regulated militia to be armed.
*As opposed to fake facts, right? Sheesh…I gotta learn to write gooder.
Naw, you didn’t take it out of context, really. It’s perfectly clear that the Framers, and the state legislatures and the Articles of Confederation before them, felt it a necessity that there be more guns made available for the militia. What I’m arguing against is the notion that, as Cecil puts it, “private gun ownership was one of the pillars of their liberty.” First, hardly anyone owned a usable gun, and of those who did, most were members of militias. Second, the method by which the states and the Articles intended to address the gun shortage was to have the government subsidize the militias–that is, assemblies would pass laws mandating that the state provide guns for militia use. The failure of the states to carry out these laws aside, the fact remains that the intent was never to provide citizens who were not active militia members with guns.
So private gun ownership was never really an issue; it was the ownership of guns by militias, or lack thereof, that the framers bemoaned. And it’s in the context of the particular militias that the Second Amendment invested the general militia with the right to bear arms (and once again, I’ll direct you to the meaning of “bear arms” at that time, which was almost exclusively military).
GAD: your own source and quotes show that the Militias performed well at the beginning of the revolutionary War. Exactly my point. The Militia is not supposed to REPLACE a Regular military it is supposed to supplement it. If it were not for the militia in the early part of the Rev, GW would never have been able to organize & train his regulars.-Thus we would have lost…thus the Militia were effective.
I will ask you to comment on my point: If the 2nd admend applied ONLY to “organized militias” why did not the Supremes just say "the accused is not a member of an "organized militia’, thus the 2nd does not protect him? Instead, their arguement seemed to concede that there was a protection(of some sort,of the General gunowning public), but that that protection did not apply to sawed-off shotguns.
And you know, we will never know whether or not the presence of so many armed Americans (the Militia) disueded the Regular Army from making a Coup. But it has happened in MANY democratic Countries. Things were very shakey in the early years, when “the Militia” outnumbered the regular army.
And remember, there WERE private, non-government Militias. How do those fit into your “you gotta be in the Army to own a Gun”, theory?
My sources show that the militias performed well in concert with the Continental Army at the beginning of the war, or under particular circumstances (“when, for instance, the Americans were forewarned and prepared, when they were fighting on their home ground, when they were facing small numbers of British troops penetrating that ground, when those troops were acting on a plan that did not foresee organized resistance”). So it wasn’t as if the militias held the fort all across the board (damn mixed metaphors) while the Continentals readied themselves. And if you want to detail the positive effects of the militia on the war effort, let me list a few negative ones:
All I’m saying is, let’s not overstate the effectiveness of colonial militias, or the extent to which the Framers felt them to be defenders of the faith, okay? I fully accept your argument that their presence made an impact, but that impact was tempered by disorganization, lack of training, and lack of arms.
Dan, what they said was that possession or use of a sawed-off shotgun had no “reasonable relationship to the preservation or efficiency of a well-regulated militia.” Let me quote the next paragraph of the opinion:
You can’t get much more clear-cut than that.
True, the opinion then goes on to say that the militias would be comprised of able-bodied males ordinarily “expected to appear bearing arms supplied by themselves”–which is, frankly, puzzling given the wealth of documentation of the dearth of gun owners, or, indeed, guns. But even in that statement, it’s far from clear whether or not the men were granted the right to possess those firearms with the expectation that they would serve in the militia. I’ve no doubt the Framers regarded private gun ownership as a natural right, but that wasn’t the intent of the Second Amendment.
Well, that may be. But what I’m saying is that the intent of the Framers was not to arm every Thomas, Patrick, and Nathaniel who were not actively a member of a militia. The Constitution’s pretty precise; “well-regulated” isn’t in there to bolster the word count.
I never said “you gotta be in the Army to own a gun.” What I said was “it’s [within] the context of the particular militias that the Second Amendment invested the general militia with the right to bear arms.”
Posit me this, Daniel–and forgive the different angles my argument’s taken, since I’m thinking more and more about this issue: what if the Framers saw no need to specifically explicate private gun rights in the Constitution, viewing them as established and natural, and instead wanted to clarify and codify the ability of gun owners to bear those guns in a militia? After all, with a newly formed national government and redoubled federal sovereignty, there might be fear of tyranny. So to allay public concerns, the Framers specifically included an amendment guaranteeing to the people that they would retain their right to join armed militias. Neither of us are wrong, in this case: private gun rights were in the minds of the Framers, but were not intended to be specifically addressed in the Second Amendment. The protections against the quartering of soldiers outlined in the Third Amendment are predicated on the freedom to own property, yet that freedom is stipulated; similarly, the right to bear arms in a militia is predicated on the freedom to own a gun–why can’t that freedom have been stipulated as well?
OK, I got absorbed into sopmething else for a couple of days and this thread goes BONKERS!
The argument seems to have turned into a constitution debate. I am not a constitution scholar. Therefore I have no authority or expertise backing me up when I say this but…
It seems to me that the framers of the constitution intended the 2nd amendment to entitle the citizenry of the U.S.A. to be able to own (and use) guns for the purpose of being in a militia. That being said, wouldn’t it make sense then that that right would extend to anything that the organized military would customarily use in combat? Thusly, Shouldn’t we be allowed to own an M-16, a grenade launcher, or a SAM missile?
By the terms of the 2nd amendment, we should. But only as long as we use it as part of our duty as militiamen.
This is my interpretation of the 2nd. However, I think the world is scary enough as it is without every able bodied man owning a M-16.
Oh BTW, Hardwood Paneling, The name is an abbreviation for the name of a character I invented, Powell VonAtark.
GAD: The militia could NOT “have performed well in concert with the Continental army at the begining of the war”, as there WAS NO “continental army” at the begining of the War. Without the Militia, there never would have been a Continental Army.
And as regards my saying it don’t matter a pile of poop what Wills think about how the Militia worked, and you saying how recognized & great he was: What I mean is that it doesn’t matter how the Militia actually performed, AT ALL, even a tiny bit, as far as the 2nd admendment goes. What matters is that the Framers THOUGHT it was important, and protected the right to bear arms.
And, I have done a lot of Legal work and Assisted US Attorneys with cases. I can guarantee you that if the Supremes thought (in that Decision you like so much)that the 2nd only applied to Organized Militias (which they don’t), that they would have pointed this out in their dec, and made it very short indeed. The very fact they go on about “the Militia” without ever mentioning the fact the accused was NOT a member of a “well organized Militia” means they feel that point is moot.
GAD: I have responded to your brand new theory of intent, but before it became your theory. I have no doubt that ONE of the reasons for the 2nd and the Militia act was to encourage Citizens to join a real militia with uniforms & drilling, etc. But the main reason was to protect the Armed Citizen from the Power of the State.
Now, you know if they banned Saturday Nite Specials, that would prob pass the Supremes. However, I am waiting for the latest CA ban on “Assault Weapons” to hit the High Court.
Only, under my new theory, insofar as reassuring those armed citizens that their right to assemble in militias still existed–not only that it existed, in fact, but that such a right was necessary for the state to remain free. Are we disagreeing? Do you take issue with the idea that the Framers did not bestow the right to gun ownership on private citizens in the Second Amendment, but only because they felt that such a right was already natural and understood?
We can make a bet on that, if you like. I wager that the USSC would uphold the constitutionality of an assault weapons ban. I’ll tell you why I think that later, if you want–right now I’m off to take a nap.
That might have something to do with the fact that the OP was asking ONLY about the Second Amendment, not gun control in general.
Gadarene wrote, re the California “Assault Weapons” Ban:
I can tell you why right now. Because ever since the 1870s, the Supreme Court has ruled that the 2nd Amendment only limits Federal lawmaking powers, not State lawmaking powers. (There is a possible argument to be made that the 14th Amendment’s equal-protection clause should extend the 2nd Amendment to the State level, as it did with the 1st and 4th Amendments. Federal courts have thus far been silent on this topic, as far as I know.)
TRACER: (& Gad) I beleive the High court would simply refuse to rule (as they have so many times on the 2nd), & not rule it Constitutional. Of course, that does leave the Law in place, but unsupported.
Fair enough, and I was responding to your hypothetical in which the case “hit the High Court.”
Thanks for the information, tracer.
Tangent, and not a rhetorical question: any thoughts as to why the USSC has declined to tackle the Second Amendment since Miller? It shouldn’t be too hard to find someone with standing; are both sides afraid of what they’ll hear if the issues conclusively decided? Can (and does) the Court refuse the issue on political question grounds?