DavidTC in reply to Oscar Gordon says:

@oscar-gordon
in such that the fact that volunteer militias are effectively a thing of the past

…?

All our current militias are volunteer. Both the National Guard, and the few independent state militias.

But I suspect the confusion here is that you’ve bought the ‘The militia is all able-bodied men’ nonsense, with the implication that people can just pick up a gun and be in a militia.

No. A militia is just a military composed of non-professional soldiers. They have chains of command, and, like almost all militaries, are created by governments. Sometimes the situation is bad enough (Or that’s just how it works, like in Switzerland.) that a government *opens the doors* to everyone to join, but that’s still the government’s call.

Militias are *actual armies*. They are not some random guy with a gun, *even if* he is literally fighting off foreign invaders.

2nd amendment promoters are constantly trying to rewrite what that means, trying to claim that non-government organizations they belong to are militias(1), or that everyone is in a militia. That is not how it works.

1) Now, just like normal militaries can be created by non-governments (And, of course, what a ‘government’ is is often vague, just ask the IRA or Hamas), militias can too, in some sense. In fact, military forces created by non-governments usually are technically militias, because having full-time soldiers is a bit much for non-governments.

But, uh, if those ‘militias’ running around in the woods in the US were *actual* militias, they’d be illegal. You can’t just wander around with an army in America. In fact, I’ve often argue that what these ‘militias’ are doing *actually is* often illegal, because of exactly that. You can get together to drink and practice with guns all you want, but you start being an army and, uh, nope.Report

DavidTC in reply to Oscar Gordon says:

There remains the unorganized militia, as well. The difference is primarily one of pay, equipment, and organization.

This is one of those sentences that is entirely true, but a really weird way of saying that.

As you point out, under the 1902 law, there are technically two classes of militia in this country. The National Guard/Naval Militia, and everyone else.

The first group have equipment, have been paid, and been organized into groups and ranks and jobs and whatnot. The second group hasn’t had *any* of that happen, *at all*. The second group has basically had the equivalent of a draft notice issued for their name, but have not actually been told where to show up or had anything happen beyond that.

That’s like saying the difference between firefighters and normal people is ‘primarily’ firefighters are paid to stop fires, and are given training and equipment in order to do that. Well…yeah, but I’m not quite sure I understand what’s trying to be said there.

The fact that the organized militia has evolved into a much more formal organization does not nullify the second amendment, it merely renders the preliminary clause moot, leaving the remainder to stand on it’s own.

I always do this wrong. I always end up stating an important fact in the middle of my theories, so much that people seem to miss that fact, which really *should* change how people think about things.

*Regardless* of what people think the intent of the 2nd amendment is and how that intersects with militias, here is a 100% true, verifiable fact: The 2nd amendment was not intended to, and did not originally, restrict *the states* from any sort of gun control they felt like. And if that was *still* true, we’d probably have…a lot of gun control.

(Of course, there were various state constitutional rules about ‘the right to bear arms’, but state constitutions are often trivially easy to change.)Report

DavidTC in reply to Jaybird says:

@jaybird
Have we ever (I mean *EVER*) seen an argument from one of the “well-regulated” people that goes something to the effect of “the laws that prevent military people on military bases from being armed are unconstitutional”?

I’m still of the opinion that the 2nd amendment is designed to prevent the Federal government from disarming the state militias.

Here are several things people often forget:
a) Originally the BoR only applied to Federal behavior, not state (Seriously, this is pretty important)
b) State militias were basically how US armed forced operated at the time
c) Constitutionally, the US government is supposed to *arm* the state militias.
d) The idea that the militia is ‘every man over the age of X’ is, in fact, completely bogus nonsense repeated by very wrong people. Militias, are, in fact, militaries. They are militaries that consist of professional civilians, but the government controls who is in them. (And, yes, *at times* opens the doors to anyone who can hold a gun, but they don’t *have to*.) The National Guard is, quite exactly, what a militia is.

So let’s look at it through *those* eyes:

Firstly, if the 2nd only applies to the Federal government, which doesn’t *have* a militia, why does it talk about militias? It obviously is talking about state militias…the same militias that someone else decided that the US government should fund…but if the Federal government is funding them, why would it disarm them…

So, basically, I think the 2nd is the result of someone saying ‘What if the US government decides to let another country take a state, and did so by not arming that state’s militia, and in fact refusing to let them have arms at all?’

So the 2nd says ‘Nope. The Federal government cannot control how state militias are armed, or disarm them.’

Now, it inadvertently was phrased as the Federal government not being able to regulate guns *at all*, but that wasn’t on purpose, that was simply how people assumed the US would work, that the states would be making laws like that.

This explains is the weird disconnect between the justification part and the actual law part…the people who wrote it assumed that *states* would be making gun control laws, and the only real laws the Federal government might make would be maliciously disarm the state militias.

And then we got the 14th amendment, and the 2nd was, nonsensically, incorporated unto the states. A law protecting the state’s power to operate militias somehow, insanely, turning into a personal right that meant the *states* couldn’t do something.Report

DavidTC in reply to Oscar Gordon says:

Everything after ‘let’s look at it through those eyes’ are just my ruminations.

But I will point out that (a)-(d) are, indeed, factual.

And I will also point out that, in light of (a) and (d), a *lot* of what people think the 2nd amendment was for do not make any sense at all.Report

DavidTC in reply to Joe Sal says:

The US constitution:

‘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;’Report

DavidTC in reply to Joe Sal says:

If the 2nd truly did come from the Virginia Declaration of Rights(June 1776), it was describing a militia and rights to bear arms as associated to a free state. Pre dating the Articles of Confederation (1781). So in my opinion it is defining free state militia organization, and individual rights.

I didn’t make any claims about ‘individual right’.

My point is that the BoR did not, in any way, restrict states until the 14th amendment. *Even if* the 2nd was intended to be an individual right, it’s one the founders don’t seem particularly bothered if the states restrict it. (And at that point in time, gun control laws would have *obviously* been state laws.)

OTOH, they didn’t seem particularly bothered if the state restricted free speech, or religion, or all sorts of things, so take that as you will.

If the 2nd came from the Virginia DOR, there was no official United States at the time of creation. In June 1776 the articles of Confederation hadn’t been written, so there was no official united states, it was outlining the preservation of a free state.

I’m quite not sure of your point there. While there was no ‘United State of America’ at the time the VA DoR was written, it is still true that state militias were how ‘US’ armed forces operated, even if ‘US’ is bit pre-emptively defined there.

But, yes, I agree that the Virginia DoR is where the 2nd basically came from.

Part of the US Constitution written in 1787 under fear that the new Congress would undermine the militias/state power by not providing funding.

Yes.

And then a bunch of people said ‘We should forbid the Federal government from doing things’ and other people said ‘But if we forbid those things, we imply it can do anything else’, and etc, etc, and the Bill of Rights was written.

And I believe one of those things was trying to forbid the Federal government from disarming the state militias. Yes, the Federal government was *supposed* to fund them, but there was no enforcement mechanism in that, and what was to stop the Feds from saying ‘The funding is zero, that is all the funding you get, and BTW you’re forbidden from buying your own stuff’?

The BoR couldn’t do anything about the first part of that, it can’t somehow guess the *currect* funding level and require that. But it *can* say ‘Well maintained armies are important, and thus the Feds can’t stop them from being armed’, with the idea that if the state could, in theory, pick up the slack.Report