There are a few comments, and some misunderstanding that I’d like to address. First, the author of the article has written a few books on the topic of Militia. One, “The Sword and Sovereignty” is over 2300 pages, has thousands of footnotes on law, and history surrounding Militia. It is more comprehensive than the Selective Service history and authorities of military service in the U.S.. It contains information that is extremely difficult to find. I myself have spent considerable time just trying to obtain the historical records of statutes pertaining to militia.
Most of the comments here are thoughtful, but a couple show that no matter the evidence presented, there will be those who stick to the false narrative that is assisting government in its long term goal of a disarmed populace. If you think it can’t be done, then the battle is already lost.
The National Guard is not Militia, nor can it be. It was created as “Troops, or Ships of War” that the States may keep “in time of Peace” by “the Consent of Congress” under Article 1, § 10, Cls. 3. Militia is recognized under Article 1, § 8, Cls. 15&16. National Guard was created by an act of Congress in 1902 because the States were failing in their mandate to maintain “A well regulated Militia”. Militia is recognized because it was in existence for well over a hundred years prior to the ratification of the Constitution. Militia had recognized statutes defining the membership, which was compulsory on all of the community, when drills would take place, arms and accoutrement, and anyone who was exempt. Congress did not need to enact the statutes, they simply needed to make them uniform across the States as there were slight differences. Some of the delegates had personal experience as Militia.
Constitutionally, the Guard cannot be Militia. It would require an amendment to the Constitution that the Second Amendment makes impossible. You can thank the genius of Patrick Henry, and a few others for that, and blame the current state of affairs on our own ambivalence, or ignorance on the subject. One very important point here that is ignored is that Militia is compulsory on all members of the community unless the statutes exempt them. COMPULSORY! The National Guard is all volunteer, and is part of the regular army.
Militia also maintained police power, and I point this out because the subject of war always comes up in these types of discussions. A very important point to maintaining Militia is to avoid war. We want to take back our government just as the Constitution and our Founders envisioned.
In 1939 a case was brought before the S. Ctr. titled U.S. v Miller, (linked). If you read it very carefully you’ll find out that it does not say what you’ve been led to believe. Neither side of the argument read the case in its entirety, or understand how it was presented to the court. However, it is a 1939 case and recognizes that “the States were expected to maintain and train” Militia at a time years after the Dick Act. It is also a case that the NRA refuses to go near for a number of reasons. Suffice it to say that in oral arguments in Heller, attorney Gura could not answer Justice Stevens questions on Militia, nor did he bring into play the fact that Miller was the defining case pointing to the proper inclusion of Militia, and the Right of the People to Keep and Bear Arms.
We see now that a number of States have moved to ban so-called “assault weapons”, some limit magazine capacity, and the democratic party is clearly stating that they are looking for a national ban. Militia is the people’s authority to indict, arrest, and convict those who run afoul of the oath of office. For those who can’t understand that Militia is the linchpin between the individual right, and all rights for that matter, I can only say that you are making it far more difficult for a defining win in the courts, and certainly our posterity.
Last point. There was a survey done several years ago of military. They were asked if they would fire upon civilians if the order was given. A majority said yes. I met, and spoke to the Major who conducted the test so despite what you’ve heard, the military will do so.

I'm not sure I understand - are you arguing that the Second Amendment protects a collective right subject to membership in the militia, but that's OK because the National Guard isn't the militia?

I think that's a dangerous approach to take.

I also think part of your argument doesn't make sense.

Even if we take as a given that the National Guard is the states "[keeping] Troops, or Ships of War in time of Peace" with the consent of Congress, under Article 1, Section 10, Clause 3 of the Constitution, how does that prohibit the federal government from exercising its power under Article 1, Section 8, Clause 16 to declare the National Guard to be PART of the militia?

"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"

The National Guard is organized at the state level, with the states appointing officers and training its members, so that doesn't conflict. Why can't Congress declare that the National Guard is ALSO part of the militia?

In fact, that is what congress has done.

"(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."

How does this conflict in any way with the text of the Constitution?

It's pretty interesting that we're arguing the interpretation of the militia and it's definition against the 2nd amendment.

quote:

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.

I doubt the founders had an age limit on the definition of the militia. I would think it was all able men.

So if it is not an individual right then, according to USC10 § 246 the 2nd amendment no longer applies to many of us here.

This is probably part of the reason the left is chasing the 'militia clause' as it immediately disarms quite a few of us.

Or am I in way over my head?

quote:

Originally posted by maladat:
I'm not sure I understand - are you arguing that the Second Amendment protects a collective right subject to membership in the militia, but that's OK because the National Guard isn't the militia?

I think that's a dangerous approach to take.

I also think part of your argument doesn't make sense.

Even if we take as a given that the National Guard is the states "[keeping] Troops, or Ships of War in time of Peace" with the consent of Congress, under Article 1, Section 10, Clause 3 of the Constitution, how does that prohibit the federal government from exercising its power under Article 1, Section 8, Clause 16 to declare the National Guard to be PART of the militia?

"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"

The National Guard is organized at the state level, with the states appointing officers and training its members, so that doesn't conflict. Why can't Congress declare that the National Guard is ALSO part of the militia?

In fact, that is what congress has done.

"(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."

How does this conflict in any way with the text of the Constitution?

I'm not saying that the Second Amendment protects a collective right. What I'm saying is that the collective, by a myriad of laws, is We the People. The collective is us, and that protects the individual right. You cannot protect a right without some force of law. What is our force of law? We don't have one because we depend on dishonest legislators and judges.

If you read what those who opposed the Constitution wrote, you'll find they were spot on. Those who opposed the ratification were the people who insisted on a Bill of Rights. The 2nd is there to make sure that all rights are protected, and that the government cannot disarm, disband, or unorganize the Militia, which is the People's force of law.

There is a legal doctrine which states "Expressio unius, est exclusio alterius". It means that because the government was granted the limited authority to organize Militia, it cannot unorganize Militia.

The statutes exist as is because we will not take the proper course of action in order to stem the tide of tyranny.

Someone needs to write a comprehensive "FAQ" explaining all the subtleties and debunking the myths surround "the militia", "military rifles", "automatic vs semi-automatic", "keep AND BEAR arms", "the reason for the right vs the right itself", etc....because I am sure we are all getting tired of typing the same old things over and over again.

Boring history, part II:
The Militia was an important cornerstone of life in American colonial communities. It was a source of pride be to a Militia member and the drills were a big deal. Many Militia members were combat veterans. Wealthy folks and land owners, in time of actual operations, could opt out by paying a fine. And did. So the Militia man of the times was just your ordinary Joe.
Another fun fact about the get together in Lexington and Concord was that during the course of the day, Militia units from surrounding communities were alerted to the fight and joined in. It was not just the embattled farmer. It was lots of embattled farmers. The Brits were saved from total defeat by a rescue force dispatched from Boston, which included artillery units.
Not only did their own government fire on the Colonials, they did not hesitate to use heavy weapons on them.

I don't think anyone here in this thread was arguing that the NG is the "militia" referred to in the 2A. That was mentioned by me as the gun-grabbers (eroneous) argument and I explained as a member of the NG I have no individual RTKBA and am under govt. control (State or Fed.) and the NG didn't even exist back then. I only have an individual RTKBA as a citizen due to the 2A.

The 2A must protect the individual RTKBA in order for it to make any sense as that is what provides for an armed "people" who are able to be a part of the "militia." It also protects the "militia" as being necessary for a free State.

I am an "originalist" and I think the issues surrounding the 2nd Amendment would be greatly simplified if Americans would take the time to learn their history and demand that the law be applied as intended by the Founders. Politicians in black robes be damned.

1. The preamble to the "Bill of Rights" states "THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution". Thus it is clear each of the first 10 amendments are in fact restrictions on the power of the federal government. The right to keep and bear arms is granted by our Creator and it “shall not be infringed”. There should be NO federal firearms laws except perhaps where the federal government possesses proprietary powers. That is a very limited amount of territory.

http://www.billofrights.org/

2. At the time of its adoption, it was well understood that the body of the people are the "militia”. There are multiple proofs:

A. "If one applies English rights and practice to the construction of the Second Amendment to the United States Constitution, it is clear that the Amendment's first clause is an amplifying rather than a qualifying clause, and that a general rather than a select militia was intended. In fact, every American colony formed a militia that, like its English model, comprised all able-bodied male citizens. [166] This continued to be the practice when the young republic passed its first uniform militia act under its new constitution in 1792. [167] Such a militia implied a people armed and trained to arms."

https://www.constitution.org/mil/maltrad.htm

B. "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on

Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

http://www.constitution.org/mil/cs_milit.htm

3. In 1789, the phrase "well-regulated" had a totally different meaning then what people tend to think of today: "The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it".

http://constitution.org/cons/wellregu.htm

4. The pernicious "collective right" concept put forward by various leftist activists, judges and so called “legal” scholars is logically flawed and needs to be beaten to a pulp - metaphorically speaking; “The collective right theory suffers from a logic defect. It is conceptually difficult to see how something can exist in a whole without existing in any of its parts. The collectivists essentially claim that there is a nebulous entity that exists somewhere between the individual and the state which is so important that the Framers protected it with a constitutional guarantee.” No other inalienable right is treated that way because the concept makes no sense.

https://www.ccrkba.org/what-is...-who-are-the-people/

quote:

Originally posted by Crom:
Someone needs to write a comprehensive "FAQ" explaining all the subtleties and debunking the myths surround "the militia", "military rifles", "automatic vs semi-automatic", "keep AND BEAR arms", "the reason for the right vs the right itself", etc....because I am sure we are all getting tired of typing the same old things over and over again.

This is as comprehensive as it gets:
The Sword and Sovereignty

For something other than that you can start here: Dr. Edwin Vieira, Jr.

quote:

Originally posted by leavemebe:
I am an "originalist" and I think the issues surrounding the 2nd Amendment would be greatly simplified if Americans would take the time to learn their history and demand that the law be applied as intended by the Founders. Politicians in black robes be damned.

4. The pernicious "collective right" concept put forward by various leftist activists, judges and so called “legal” scholars is logically flawed and needs to be beaten to a pulp - metaphorically speaking; “The collective right theory suffers from a logic defect. It is conceptually difficult to see how something can exist in a whole without existing in any of its parts. The collectivists essentially claim that there is a nebulous entity that exists somewhere between the individual and the state which is so important that the Framers protected it with a constitutional guarantee.” No other inalienable right is treated that way because the concept makes no sense.

https://www.ccrkba.org/what-is...-who-are-the-people/

Excellent information. As one who adheres to that which the Founders agreed upon, and as a veteran, I took the step to contact the governor and ask for a position in the militia that would suit my experience.

The response came back that I could join the National Guard.

I think if we write enough about it, using the state statutes, to our legislators and governors we might start a legitimate movement.