[EMAIL PROTECTED] wrote:
If I am correct that the Constitution allows Congress to exclude classes of
citizens from the militia, and to prevent the state from designating those
citizens *as militia*, then the 2nd Am does not protect from Congress the
power of the states to arm their citizens as militia.
I don't think you are correct. The Massachusetts cases don't provide valid
guidance on this question. That was about racist fears that armed blacks would be
a threat to whites.
First, there are different meanings of of the term "militia" in different
contexts. The original meaning was "defense activity", and only secondarily those
engaged in it. See http://www.constitution.org/col/mil_inim.htm for a discussion
of the etymology of the word. That means anyone engaged in defense activity is
"militia", no matter how humble the level or kind. Militia is fundamental to our
theory of government, and more fundamental than the Constitution or any statute.
It is, essentially, the duty one has under the social contract. No one can be
excluded from it.
What statutes refer to by the term is not militia in general, but a subset of
those who may be required to respond to a general call-up for operations, and for
routine organizing, training, and equipping for operations, and who may be
penalized for failing to respond to a call-up, without a valid excuse. This might
be termed the *mandatory* militia.
The fact is that states do define their mandatory militia differently from the
federal government. States commonly define them as persons between the ages of 16
and 60, whereas 10 USC 311 defines them as males between 17 and 45. There is no
power of Congress to exclude females or males aged 16 or 46-60 from state militia
units. All it means that if there is a federal call-up that includes the state
units, only the males age 17-45 are required to show up.
Moreover, the power to organize militia is only a power to enhance the
effectiveness of militia, not the power to impair it. Delegations of power are
constrained by proper purposes. They are not plenary. Just because Congress might
organize some men in one way, during certain hours, does not mean those same men,
joined by women or even children, could not organize themselves in other ways that
don't conflict with the federal plan. Militia units can be organized, but they
can't be forbidden. Militia is not just a natural right, but a essential duty that
transcends all constitutions and laws.
-- Jon
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