W/regard Norman's suggestion -- I don't know which I would find more ironic: ACLU suing to enforce the second amendment, or it suing to protect state's rights (over their military, to boot).
With regard Jon's point -- I've seen some Tudor-period (I think very early Elizabethan) documents which used "militia" to mean what we would today call "the defense establishment", i.e., including Royal ships, artillery, and fortifications. By the end of her reign, militia meant what it means today. Probably because 99% of the first militia was the second militia. Final note -- Norman's point may underscore a suggestion (raised, I believe, by Nelson Lund). Given the broad Federal power over the militia, the key to the Second Amendment may be a desire to ensure that Federal power was never used to disarm the people. The Feds can define the "militia," but cannot redefine "the people." -----Original Message----- From: Jon Roland <[EMAIL PROTECTED]> Sent: Aug 30, 2005 2:18 PM To: [EMAIL PROTECTED], [email protected] Subject: Re: reply to Allen Asch re Rendell v. Rumsfeld [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 ---------------------------------------------------------------- Our efforts depend on donations from people like you. Directions for donors are at http://www.constitution.org/whatucando.htm Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/374-9585 www.constitution.org [EMAIL PROTECTED] Get your free digital certificate from http://www.thawte.com ---------------------------------------------------------------- _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
