Militia Raid

[mbt2001]

I don't see why people always fixate on a question of NEED, espically when we live in the most materialistic society so far conceived....

 

[offthepaper]

I think I remember hearing some time ago that at one time John Wayne owned a WWII era naval vessel (converted I beleive). So I guess if you got the bucks, theres a lot of "toys" one could own.

 

[Keith Wheeler]

1. Should private citizens of the United States be able to legally own/build nuclear weapons?

Again, this is an irrational absurd point to use as a basis in any logical argument.

Construction of such devices requires the abilities of state, not of individuals. Any state which both desires and can afford nuclear weapons has done so.

You might as well be asking "Should it be legal to become G-d and control the outcome of the universe?". It can't happen. It's absurd to base any logical discussion (and legal conclusion) on events that can NOT happen.

Unless you want to base your other points on something that is possible then it would be absurd to use logic to discuss them as well. There are a number of fallacies in connecting personal protection with the practically impossible notion of any entity other than a wealthy and powerful state "building/owning" a nuclear bomb.

 

[buzz_knox]

It's one thing to have a M240 and a few belts of linked ammo, it's quite another
for John and Jane Q who can't program recording a TV show, to have a nuke.

Could John and Jane Q afford to purchase and maintain a nuke? Wouldn't the cost involved be one of the principle restraints on ownership?

If the concern is access to WMDs, we should probably toss the 1st Amendment out the window and regulate the crap out of textbooks on chemicals. John and Jane Q couldn't develop a nuke or program a VCR, but coming up with chemical weapons isn't that hard. In fact, it's pretty simple. Meth cookers do it on a regular basis, as do individuals who inadvertently mix their cleaning supplies. And developing the mass-production facilities and delivery systems to kill large numbers of people is simple as well.

So, if we are really worried about blocking morons from WMD, the first step is to destroy the knowledge base that allows for WMDs.

 

[Thin Black Line]

The Continuum has Spoken:

Meat are allowed to have weapons that can only kill meat, but meat are not
allowed weapons which can kill energy-based lifeforms. Due to the EMP
properties of nuclear weapons, all meat are to cease and desist from creation,
possession, and use of such weapons.

"They're made out of meat."

"Meat?"

"Meat. They're made out of meat."

"Meat?"

"There's no doubt about it. We picked several from different parts of the planet, took them aboard our recon vessels, probed them all the through. They're completely meat."

"That's impossible. What about the radio signals? The messages to the stars."

"They use the radio waves to talk, but the signals don't come from them. The signals come from machines."

"So who made the machines? That's who we want to contact."

"They made the machines. That's what I'm trying to tell you. Meat made the machines."

"That's ridiculous. How can meat make a machine? You're asking me to believe in sentient meat."

"I'm not asking you, I'm telling you. These creatures are the only sentient race in the sector and they're made out of meat."

"Maybe they're like the orfolei. You know, a carbon-based intelligence that goes through a meat stage."

"Nope. They're born meat and they die meat. We studied them for several of their life spans, which didn't take too long. Do you have any idea the life span of meat?"

"Spare me. Okay, maybe they're only part meat. You know, like the weddilei. A meat head with an electron plamsa brain inside."

"Nope. We thought of that, since they do have meat heads like the weddilei. But I told you, we probed them. They're meat all the way through."

"No brain?"

"Oh, there is a brain all right. It's just that the brain is made out of meat!"

"So... what does the thinking?"

"You're not understanding, are you? The brain does the thinking. The meat."

"Thinking meat! You're asking me to believe in thinking meat!"

"Yes, thinking meat! Conscious meat! Loving meat. Dreaming meat. The meat is the whole deal! Are you getting the picture?"

"Omigod. You're serious then. They're made out of meat."

"Finally. Yes, they are indeed made out of meat. And they've been trying to get in touch with us for almost a hundred of their years."

"So what does the meat have in mind."

"First it wants to talk to us. Then I imagine it wants to explore the universe, contact other sentients, swap ideas and information. The usual."

"We're supposed to talk to meat?"

"That's the idea. That's the message they're sending out by radio. 'Hello. Anyone out there? Anyone home?' That sort of thing."

"They actually do talk, then. They use words, ideas, concepts?"

"Oh, yes. Except they do it with meat."

"I thought you just told me they used radio."

"They do, but what do you think is on the radio? Meat sounds. You know how when you slap or flap meat it makes a noise? They talk by flapping their meat at each other. They can even sing by squirting air through their meat."

"Omigod. Singing meat. This is altogether too much. So what do you advise?"

"Officially or unofficially?"

"Both."

"Officially, we are required to contact, welcome, and log in any and all sentient races or multibeings in the quadrant, without prejudice, fear, or favor. Unofficially, I advise that we erase the records and forget the whole thing."

"I was hoping you would say that."

"It seems harsh, but there is a limit. Do we really want to make contact with meat?"

"I agree one hundred percent. What's there to say?" `Hello, meat. How's it going?' But will this work? How many planets are we dealing with here?"

"Just one. They can travel to other planets in special meat containers, but they can't live on them. And being meat, they only travel through C-space. which limits them to the speed of light and makes the possibility of their ever making contact pretty slim. Infinitesimal, in fact."

"So we just pretend there's no one home in the universe."

"That's it."

"Cruel. But you said it yourself, who wants to meet meat? And the ones who have been aboard our vessels, the ones you have probed? You're sure they won't remember?"

"They'll be considered crackpots if they do. We went into their heads and smoothed out their meat so that we're just a dream to them."

"A dream to meat! How strangely appropiate, that we should be meat's dream."

"And we can marked this sector unoccupied."

"Good. Agreed, officially and unofficially. Case closed. Any others? Anyone interested on that side of the galaxy?"

"Yes, a rather shy but sweet hydrogen core cluster intelligence in a class nine star in G445 zone. Was in contact two galactic rotation ago, wants to be friendly again."

"They always come around."

"And why not? Imagine how unbearably, how unutterably cold the universe would be if one were all alone."

 

[Vibe]

Now someone please tell me why someone needs a freaking cannon?

Well I for one am glad that a certain Ben Franklin owned several, as a cilvilian citizen.

 

[glummer]

Strike

1. Should private citizens of the United States be able to legally own/build nuclear weapons?

2. Should private citizens of the United States be able to legally own poison gas bombs/rounds and their delivery systems.

They do. Most of this stuff is built by defense contractors - legally, private "persons." There are, of course, plenty of regulations and safeguards. Are you assuming a situation without ANY rules at all? If so, you're just playing silly games in your head.

3. Should private citizens of the United States be able to legally form un-appointed, self-actualizing judges, juries, and executioners in the form of these “militias.”

Huh? This is the equivalent of "should x be able to legally break the law." It's literal nonsense. Self-contradictory. Impossible by definition. Anyone who can SUCCESSFULY "...form un-appointed, self-actualizing judges, juries, and executioners ...” IS the law, whether you want to call it that or not.

 

[buzz_knox]

Quote:
Originally Posted by FM2Wildcat
Now someone please tell me why someone needs a freaking cannon?

Well I for one am glad that a certain Ben Franklin owned several, as a cilvilian citizen.

Excellent answer. Here's another: No one needs to have an opinion different from mine, but you have a right to have that opinion. Shall I take away your right or deny you your opinion just because you don't need it?

 

[junyo]

Sorry I don't recall the correct term, but taking an argument to absurd extremes is irrational.

The term is reductio ad absurdum - "reduction to the absurd"

1. Should private citizens of the United States be able to legally own/build nuclear weapons?

If they can demonstrate that they can secure it from falling into the wrong hands, and more importantly, use it in a way that doesn't violate another citizen's rights. A lot of countries can't do the former. And short of a plinking range on the Moon, or nuking Canada, how would they do the latter?

3. Should private citizens of the United States be able to legally form un-appointed, self-actualizing judges, juries, and executioners in the form of these “militias.”

No, but Americans also shouldn't be able to make Paris Hilton a celebrity, yet they did it anyway. So assuming someone did just what you suggest, the minute they attempt to extra-judicially judge or execute someone, that person should shoot them with his cannon, gather his militia around him for protection, and alert the authorities.

 

[glummer]

buzz knox

No one needs to have an opinion different from mine, but you have a right to have that opinion. Shall I take away your right or deny you your opinion just because you don't need it?

Oh, that is NICE!

 

[Kentak]

What is scary is that there are so many individuals on this forum that believe the only thing standing between them and a fully armed F-16 is money and filing the "proper paperwork."

As if!

 

[hso]

Tim L,

Thanks for that information. It's odd though, I was on Marathon and there was a Mig and tail down F4 tied down near a hanger so I asked about them. The folks at the airport said that they were privately owned and used to take folks on rides out over the ocean.

Why would out of date military jets not be available for purchase and use? Would it be related to FAA qualification of the aircraft not being possible? If so then how do the Migs get approved?

 

[migoi]

A momentary return...

to the original subject of this thread, if you please....

I would appear that our dear Mr. Fincher has managed to achieve exactly what he is intending. Reading the article posted here: http://www.nwaonline.net/articles/2006/03/19/front/01survival.txt back in March of this year, he seems intent on challenging the authority of the BATFE over private citizens.

This event has some higher bit of interest to me due to our having just bought a parcel of land about a 35 minute drive due west of his headquarters.

At this point I'm uncertain if Mr. Fincher is a total nutjob or if he truly is a patriot attempting to use the courts to reveal the extent our constitutionally recognized rights have been infringed. I guess a reporting of the legal proceedings to follow will reveal more.

As a small side note to the cannon discussion. At an approximate 20 minute or so drive from where the militia headquarters are located lies the Prarie Grove Civl War Battleground Park where I understand a huge re-enactment is conducted every 2 years. It's possible there might be a connection there.

As for the nuclear weapons part of the thread. It's starting to seem as though the poster with the question about private citizens being able to own nuclear weapons has some statement he is dying to make upon any other poster answering yes... So I'll give him the chance.

Yes, private citizens should not be prohibited from owning nuclear weapons or any other bit of military armament.

I now return you to the squabbling.

migoi

 

[outofbattery]

A few thoughts: a .30-30 is more dangerous in the wrong hands than an entirely legal to own black powder cannon.It's not as if he had an illegal,fully operational M109A6 and a giant stash of 155mm HE to rain down on his neighbors when the flag goes up.

Wonder if he brought this on himself with that picture of the Sten? I wouldn't even hazard a guess as to how many people unlawfully built one out of the parts and marked tubes that were available at gun shows but nobody forced them to break what they know to be Federal law.I know it's unlawful to speed but am willing to pay the fine for disobeying the law,anyone who knows it;s illegal to build a machinegun should be prepared to pay the fine too.I personally would be in favor of at the minimum reopening the NFA registry for machineguns and do away with the rediculous catagories of AOW and SBS but while it is the rule of the land,I will follow the law and own only what I may lawfully purchase or build.While the case for RKBA absolutism is just,I don't think guerilla tactics to elict a change of law as it stands is very smart and I honestly don't have any sympathy for him.

 

[Erinyes]

Buzz_knox, I used Miller to argue Stingers are allowed to be owned back on page 2.

I, personally, would also make the arguement under Miller that Nukes and other WMDs are not covered under the Second. WMD can only be used with presidential authorization. They are not weapons the militia is expected to be capable of being brought with them to call up. Even in their "tactical" forms, WMD are weapons soley of strategic deterance. I would argue they are not under the perview of the citizen militia, and thus not covered under the 2A. They simply have no place on the battlefield without POTUS authorization. Cannon, tanks, and jet fighters, however, don't legally require that authorization.

 

[Keith Wheeler]

What is scary is that there are so many individuals on this forum that believe the only thing standing between them and a fully armed F-16 is money and filing the "proper paperwork."

Yep. For all the control-freak legalist scare talk of "imagine a nut case and/or stupid person with an Uzi/Nuke/FrackingToaster"....I think the scariest thing any "dangerous" individual can possess is money.

 

[Lucky]

Bartholemew - not being a militia does not mean one has lost the right to keep and bear arms, see? And on top of that the notion of the militia as an exclusive club is extremely questionable.


James Madison

"
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."



Noah Webster

"A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state"






"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

"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."

 

[Jeff White]

Lucky,
You are wrong. The notion that the militia is what the state defines it was settled once and for all in Presser v. Illinois by the United States Supreme Court in 1886. This is from my post in this thread:
http://www.thehighroad.org/showthread.php?t=172102

Laws limiting private armies and unauthorized militias were held to be constitutional by the US Supreme Court in 1886 in Presser v. Illinois:

Quote:
In the 1886 case of Presser v. Illinois, 116 U.S. 615. the U.S. Supreme Court found constitutional an Illinois law against unauthorized military organizations and unauthorized armed parading. In doing so, the Court discussed the First and Second Amendments.

A. Herman Presser was indicted in September, 1879 for violating the Illinois law that stated:

"It shall be unlawful for any body of men whatever, other than the regular organized volunteer militia [note all the qualifications - since the 1792 Uniform Militia Act was still the law], and the troops of the United States, to associate themselves together as a military company or organization or to drill or parade with arms in any city or town of this state, without the license of the Governor thereof, which license may at any time be revoked [goes on to exclude ceremonial wearing of swords, educational groups with consent of the Governor, etc.]"

At this time, under Illinois law those subject to militia duty were those defined in the 1792 Uniform Militia Act. However, as was common, only the regular organized volunteer militia served. It was limited by statute to 8,000 men and officers. The "license of the Governor" means that the Governor could grant permission to unauthorized groups.

Presser belonged to a private organization called Lehr und Wehr Verein, a corporation organized under Illinois law in 1875 for the purpose of "improving the mental and bodily condition of its members...Its members shall therefore obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastics exercises."

"Presser,in December, 1879, did march at the head of said company, about 400 in number,in the streets of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword." [p.618]

The Court determined that the Illinois law was not made invalid by the federal militia laws.

Then the Court disposed of the Second Amendment argument by saying:

"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms." [p.619]

The Court could have stopped there with its discussion of the Second Amendment and these laws. In fact, this statement means that the Second Amendment cannot be used against either federal or state anti-militia laws.

However, the Court then nails down the issue as far as state law is concerned. In 1879, the Court followed the the non-incorporation doctrine that held the restrictions of the Bill of Rights applicable to the federal government alone, not to the states. Nonincorporation has been abandoned for many of the rights under the Bill of Rights, but under current case law still applies to the Second Amendment.

The Court goes on:

"But a conclusive answer to the contention that this Amendment prohibits the legislation in question lies in the fact that the Amendment is a limitation only upon the power of Congress and the National Government, and not upon that of the States" ..." [p.619]

The next paragraph is often misinterpreted. The context is that Illinois must comply with federal law, in this case the 1792 Uniform Militia Act. The state cannot restrict the militia beyond the limits set by federal law. As the federal law changes, within its constitutional boundaries, the state law must also change. The issue is that the state (surprise, surprise) cannot interfere with the federal right to 'provide for the organizing, arming and disciplining' of the militia.

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of of the General Government, as well as of its general powers, the States cannot, even laying aside the constitutional provision out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But, as already stated, we think it clear that the sections under consideration have no such effect." [p.619]

The Court also discussed the First Amendment, again in terms of the nonincorporation doctrine. That is, the only free speech issue for the Court dealt with the federal government. Since the Presser case, the First Amendment has been held to apply to the state governments. However, much the same language could be used to discuss whether this state law is valid when state laws must also meet the freedom of assembly test. Part of this passage, is quoted 100 years later in the Vietnamese Fisherman case.

"The only clause in the Constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company is found in the First Amendment, which declares that "Congress shall make no law ..abridging.. the right of the people peacably to assemble and to petition the government for a redress of grievances..." [p.619]

"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 operation 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 State 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." [pp 619-620]

The last paragraphs quoted make clear that the Court did not, as some have argued, deal only with 'unauthorized armed parading.' The Court was equally concerned and found equally valid the provisions dealing with 'unauthorized military company or organization.'

 

[Jeff White]

I've made a study of the laws that create the militia. All the way back to the first one, the milita act of 1792:

Militia Act of 1792,
Second Congress, Session I. Chapter XXVIII
Passed May 2, 1792,
providing for the authority of the President to call out the Militia

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

Sec. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States, who may be in service at the same time, or who were last in service, and shall be subject to the same rules and articles of war: And that no officer, non-commissioned officer or private of the militia shall be compelled to serve more than three months in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which be belongs.

Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine.

Sec. 6. And be it further enacted, That court martial for the trial of militia be composed of militia officers only.

Sec. 7. And be it further enacted, That all fines to be assessed, as aforesaid, shall be certified by the presiding officer of the court martial before whom the same shall be assessed, to the marshal of the district, in which the delinquent shall reside, or to one of his deputies; and also the supervisor of the revenue of the same district, who shall record the said certificate in a book to be kept for that purpose. The said marshal or his deputy shall forthwith proceed to levy the said fines with costs, by distress and sale of the goods and chattels of the delinquent, which costs and manner of proceeding, with respect to the sale of the goods distrained, shall be agreeable to the laws of the state, in which the same shall be, in other cases of distress; and where any non-commissioned officer or private shall be adjudged to suffer imprisonment, there being no goods or chattels to be found, whereof to levy the said fines, the marshal of the district or his deputy may commit such delinquent to gaol, during the term, for which he shall be so adjudged to imprisonment, or until the fine shall be paid, in the same manner as other persons condemned to fine and imprisonment at the suit of the United States, may be committed.

Sec. 8. And be it further enacted, That the marshals and their deputies shall pay all such fines by them levied to the supervisor of the revenue, in the district in which they are collected, within two months after they shall have received the same, deducting therefrom five per centum, as a compensation for their trouble; and in case of failure, the same shall be recoverable by action of debt or information in any court of the United States, of the district, in which such fines shall be levied, having cognizance therefor, to be sued for, prosecuted and recovered, in the name of the supervisor of the district, with interest and costs.

Sec. 9. And be it further enacted, That the marshals of the several districts and deputies, shall have the same powers in executing the laws of the United States, as sheriffs, and their deputies in the several states have by law, in executing the laws of their respective states.

Sec. 10. And be it further enacted, That this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of Congress thereafter, and no longer.

APPROVED, May 2, 1792.

You may notice that there are several lines in this act which plainly state that one of the reasons the militia was to be called up was to put down an insurrection. This suggests that the founding fathers had no plans for the militia to be a check on the government. The militia existed to support the government. To be it's muscle.

 

[Bartholomew Roberts]

Bartholemew - not being a militia does not mean one has lost the right to keep and bear arms, see?

Did anyone here make that argument? I know that I did not and Jeff White did not.

And on top of that the notion of the militia as an exclusive club is extremely questionable.

Nobody said it is an exclusive club. They said it is subordinate to democratically elected governments instead of being a private organization of local boys with guns.

 

[carterbeauford]

Now someone please tell me why someone needs a freaking cannon

This is the basis for every anti's argument:

"someone please tell me why someone needs an assault weapon?"
"someone please tell me why someone needs a .50 caliber?"
"someone please tell me why someone needs a machine gun?"
"someone please tell me why someone needs ____________?"

I do not have much need for a 20MM rifle, but it is not my place to tell others they do not need one either.

 

[Jeff White]

From Presser v. Illinois

The court ruled that there was no second amendment protection afforded private military units:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=116&invol=252

We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: '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.'

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.

It said this in regards to unauthorized private military units:

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 [116 U.S. 252, 268] 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. In the case of New York v. Miln, 11 Pet. 102, 139, this court said: 'We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States; that, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated,' namely by the constitution and laws of the United States. See, also, Gibbons v. Ogden, 9 Wheat. 1, 203; Gilman v. Philadelphia, 3 Wall. 713; License Tax Cases, 5 Wall. 462; U. S. v. Dewitt, 9 Wall. 41; U. S. v. Cruikshank, 92 U.S. 542 . These considerations and authorities sustain the power exercised by the legislature of Illinois in the enactment of sections 5 and 6 of article 11 of the Military Code.

The militia exists to support the elected government. It is not a check on government excesses. That is what the founding fathers had in mind when they wrote the first laws about the militia.

Jeff

 

[Bartholomew Roberts]

The militia exists to support the elected government. It is not a check on government excesses. That is what the founding fathers had in mind when they wrote the first laws about the militia.

I agree; but I'd just add the context that the founders also envisioned different levels of government and dispersed power. The militia was meant to allow the state governments to act as a check on federal government excess. That was pretty much a core concept of federalism.

Of course, that view changed a lot post Civil War (which was when Presser was decided) and embraced a greater concentration of power in the federal government.

 

[Jeff White]

I don't think anything in Presser gave the federal government supremacy over the state goverments. Even the militia act of 1792 gave the president the power to call the state militias into federal service.

There is still nothing stopping the states from having their own true militias which are indeendent of the National Guard. Any governor who wished to form one could. It's just that he'd have to pay for it out of pocket.

I do wonder if a governor formed a militia, if he could fund it with Homeland Security Grant money? Maybe get surplus DOD material to equip it?

Jeff

 

[Bartholomew Roberts]

I kind of like the idea of states using their own money for funding. Federal funding has been another way that power has been centralized over the years. Free money from Uncle Sam always has strings attached somewhere...

On the other hand, so few states maintain any sort of actual state militia these days that I think it would be a good use of federal funding to revive independent state militias. Texas maintains a shell of a state militia; but at least the structure and cadre is there.